1 of 196 DOCUMENTS 

THE PRESIDENT, MANAGERS AND COMPANY OF THE WASHINGTON AND BALTIMORE TURNPIKE ROAD, vs. THE STATE OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

19 Md. 239; 1862 Md. LEXIS 70 

December 17, 1862, Decided 

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

This is a scire facias, issued by order of the appellee against the appellant, in pursuance of the Act of Assembly of 1860, ch. 326, entitled, "An Act to authorize and direct the State's Attorneys for Baltimore city, Baltimore county, Anne Arundel county, and Prince George's county, to institute proceedings to forfeit the charter" of the appellants. The writ recites the incorporation of the appellants in 1812, and the making of the road in pursuance thereof. It recites, also, the duty imposed upon the company by the 13th section of their charter, with reference to the maintaining and keeping their road in good order and repair. It then avers that the defendants had "wilfully and for a long time neglected to keep their said road, or parts thereof, and the bridges over the streams crossing said road, in such good order and repair as are required by said Act, and by the thirteenth section especially, in violation of their chartered obligations, and in disregard of the rights of the State, and to the great injury, inconvenience and detriment of the public travelling upon said road." After referring to the Act of 1860, ch. 326, already [**2]  mentioned, it concludes in the usual way, by calling on the defendants (appellants) to show cause "why their charter and corporate powers and franchises ought not to be declared to be vacated and annulled."

The appellants filed nine pleas, the first seven of confession and avoidance, the eighth that of limitations, and the ninth the general issue.

The 1st plea states, that after the said turnpike road was perfected, examined, approved and licensed, in the manner prescribed by the 15th section of the Act of Assembly by which it was incorporated, certain other Acts of Assembly were passed, in pursuance of which the Washington Branch of the Balto. & Ohio R. R. was constructed, in a great measure with the money of the State, the State also receiving therefrom a considerable income; that the said turnpike had been kept in as good order and repair as when it was examined, &c., until by the diversion of its trade and travel to the said railroad, its income was so reduced as to deprive the said President, Managers and Company of the means of maintaining said turnpike road in better order than it now is; and concludes, "so the defendants say that they have not, as in the said scire [**3]  facias is suggested, wilfully and for a long time neglected," &c.

The 2nd plea alleges, that during the legislation for the construction of the said railroad, the President, &c., of the turnpike company opposed and protested against its action, and predicted the injurious effects of such action upon the interests of the turnpike company; that the Legislature, professing to recognize the importance of preserving the said turnpike road in its then state of usefulness, authorized the said President, &c., of the turnpike road to subscribe for a certain amount of the stock of said railroad, the dividends received in virtue of which subscription, were to be applied to the repairs of said turnpike road; that the means of the said President, &c., had already been exhausted in the construction of said turnpike road, in consequence of which they were unable to avail themselves of such right of subscription, until by another Act of Assembly said right was determined; whereby they were deprived of the means of maintaining the said turnpike road in better order than it now is; "so that the defendants say," &c., as in the 1st plea.

The 3rd plea recites the Act of the 10th of February 1839,  [**4]  relating to the hearing of an appeal in a suit then pending in Baltimore County Court, between the said turnpike company and said railroad company, by which it was admitted that the said turnpike road was then maintained "in sufficiently good order and repair;" and alleges "that during the whole of the year next preceding the commencement of this suit, the said turnpike road has been kept in as good order and repair as it was at the time of the passage of the said Act of the 10th of February 1839."

The 4th plea alleges, that "the State, by its Acts of Assembly, and the conduct of its officers, has admitted that until 1858, the said turnpike road was kept in sufficiently good order and repair," and that its stockholders were induced to sell, and other parties to purchase, in October 1858, fifteen hundred and forty shares of its stock, upon the faith of the admission by the State, that while the said turnpike road was maintained and kept in as good order and repair as at the time of the said sale, "the State would consider that no sufficient cause existed for annulling its chartered and corporate powers and franchises;" and further alleges, that soon after said transfer of stock,  [**5]  the said turnpike road was put in better order and repair, and during the whole of the year next preceding the commencement of this suit, has been in better order and repair than it was at the time of said sale and transfer.

The 5th plea recites the passage of a supplement to the Act of Assembly first mentioned in the scire facias, authorizing the said turnpike company to charge tolls on steam-carriages travelling on their road, and alleges that with reference to said supplemental Act of Assembly, the said turnpike company authorized its president to convert the turnpike road into a plank road, to build and rebuild bridges, and to make general repairs thereon; that to effect these several purposes, the sum of two thousand dollars was borrowed on the faith of the tolls and duties authorized to be charged, the surplus of which, after deducting so much as might be necessary to keep the road in repair, was pledged to secure the repayment of the amount so borrowed; but that since then, the tolls and duties had not been more than sufficient to keep the road in repair; that the whole amount so borrowed is still due, with interest; that the defendants have no other means than said tolls [**6]  and duties wherefrom to pay the same, and that if "such security as is afforded by said tolls and duties shall be taken away against the consent of the persons from whom said money was borrowed, it will, in effect, be taking their property for public use, without just compensation, contrary to the Constitution of the State of Maryland, and contrary to the Constitution of the United States."

The 6th plea alleges, that in pursuance of the authority given them by their charter, and in consideration of the sum of $ 2,000 borrowed, as stated in the 5th plea, the said turnpike company had granted to the parties from whom they had borrowed the said sum of money, for the period of seven years, the tolls and duties which they were authorized to charge, the said parties covenanting to apply the said tolls and duties first to the management and repairs of said turnpike, and the surplus, if any, to their use, "so that the said President, Managers and Company say that they are not now possessed of the said franchise, and that any condemnation of said franchise must be subject to the rights and property of the said grantees therein."

The 7th plea alleges, that although the charter of the [**7]  company provides "that there shall be tolls yielding to the stockholders, in net profits, not less than ten per cent. per annum, yet no such profits, nor any profits whatever, have been divided among the stockholders during the time which has elapsed since the agreement to purchase, mentioned in the fourth plea, but during the whole of that time all of the tolls and duties received for passage upon and along said road, have been applied to maintain and keep said road in good order and repair.

The 8th is the plea of limitations; and the 9th "not guilty."

The State demurred to the first seven pleas, entered a motion to strike out the eighth plea, on the ground that it had not been filed within the time required by the rules of the Court, and joined issue on the ninth. The demurrer and motion was sustained by the Court. The defendants then filed an additional plea to the jurisdiction of the Court, stated in the opinion of this Court, to which the State demurred, and this demurrer was also sustained.

At the trial of the cause, six exceptions were taken by the appellants, to the several rulings of the Court below, (MARTIN, J.,) the questions presented by which, are stated [**8]  in the opinion of this Court.

1st Exception. At the trial of the cause, the plaintiff, to maintain the issue on its part joined, called as a witness Michael Waterman, who being sworn on his voire dire, said, that he resided in the thirteenth election district of Baltimore county, that his road to Baltimore is by the Sulphur Spring road, to where it joins the Washington road, and thence by the Washington road to the city; that he could also go by the Frederick turnpike road, which is about as far distant from his house as the Washington road is, but the distance by that road to the city is two and a half miles further than by the Washington road; that he has been in the habit of commuting his toll on the Washington road at twenty-five dollars per year, but that this year he pays by the trip, which costs him ten cents for coming and going; that if the Washington road be condemned in the present proceeding, he will travel over it free of toll, because, in his opinion, it will then be a county road. Whereupon the defendant moved the Court to exclude the said witness, as incompetent to testify for the plaintiff, which motion the Court refused, and permitted the said witness to be sworn [**9]  in chief, and the defendant excepted.

The second and third exceptions are stated in full in the opinion of this Court.

4th Exception. After offering the evidence stated in the foregoing bills of exception, which were made part of this, the plaintiff further offered in evidence, by several competent witnesses, the want of repair of the defendant's road, among which witnesses was Charles Rittenhouse, who, being cross-examined by the defendant, stated that he had in his own mind, and may have stated it to several, a plan for the taking of this road, in case of its condemnation, into the ownership of a new company, to be by the said new company repaired and made subject to toll, which he thought would be profitable. He also stated that he had fixed upon the expenditure of eleven hundred dollars per mile, as the sum necessary to put said road in such productive condition. Whereupon the counsel for the defendant proposed to ask the witness by what calculation as to the expenditure of the said capital, and the necessary expenditure for repairs and interest on said capital, he proposed to make said company a profitable investment; but the plaintiff, by its counsel, objected to said [**10]  question, which objection the Court sustained, and would not allow the said question to be put to the witness, and the defendant excepted.

5th Exception. The evidence in the foregoing four bills of exceptions having been offered and given as therein stated, which said bills of exception are made part of this, the plaintiff further offered evidence tending to show the wilful neglect of the defendant to keep its road in repair, and here closed its case. The defendant then, in order to rebut the allegation of the declaration, "that the said defendant had wilfully and for a long time neglected and failed to keep its road in repair," as also the evidence which the plaintiff had offered, to sustain said allegation, offered to prove "that it had expended its whole capital of one hundred thousand dollars, and forty thousand dollars derived in part from the tolls of a portion of the road then opened, and in part from additional subscriptions by its stockholders, in the building of said road, and that it had no other property but its franchise to take tolls from persons using its said road, and that the said defendant expends the entire receipts of the road in its repair, and that the want [**11]  of repair, if the jury shall find such to exist, is not the result of the wilful act of the said defendant, but arises solely from its want of pecuniary ability. And the said defendant, in order to show the cause of such pecuniary inability, proposes to show, by evidence to the jury, the amount of receipts and expenditures of the said road prior to the opening and use of the Washington Branch railroad, and the falling off of the said receipts thereafter, and the causes thereof, and read to the jury the Acts of Assembly of Maryland, of 1827, ch. 170, sec. 15; 1828, ch. 139, sec. 20; and 1830, ch. 158, sec. 4, to show the action of the State with reference to the defendant." To the admissibility of this evidence the plaintiff objected, and the Court having sustained said objection, and refused to let the said evidence go to the jury, the defendant excepted.

6th Exception. The evidence in the foregoing five bills of exception having been offered and given, as therein stated, which said bills of exception were made part of this, the plaintiff prayed the Court to instruct the jury as follows: "If the jury believe, from the whole evidence in the case, that the defendant had, at the [**12]  time of the passing of the Act of 1860, ch. 326, given in evidence, failed and neglected to maintain and keep their road, or parts thereof, and the bridges over all the waters crossing said road, in good order and repair, by erecting and maintaining permanent bridges over all the waters crossing said road, wherever the same were found necessary, by maintaining said road sixty feet wide, and eighteen feet at least thereof an artificial road, solid, durable and even to the surface, by bedding the same with wood, stone, sand or gravel, a sufficient depth to secure a good foundation to the same, and by maintaining the said road faced with gravel or stone pounded, or other small, hard substance, in such manner as to secure a firm and (near as the materials would reasonably admit) an even surface, then their verdict should be for the plaintiff." To the giving of which instruction the defendant objected, but the Court overruled said objection and granted the instruction, and the defendant excepted.

The verdict of the jury being for the plaintiff, the defendant moved in arrest of judgment, but the Court overruled said motion, and entered judgment for the plaintiff. The defendant appealed,  [**13]  1st, from the rulings of the Court below, sustaining the demurrers of the State to the first seven pleas, and to the additional plea to the jurisdiction, and granting the motion to strike out the eighth plea; 2nd, from the various rulings set out in the six exceptions; and 3rd, to the overruling of the motion in arrest of judgment.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Although provision may be made in its charter for the punishment of a turnpike company and its agents, if it shall neglect to keep said road in good and perfect repair, such provision cannot be held to deprive the State of its sovereign power to annul a grant, when its purposes have failed, through the positive or negative act of the party to whom the grant was made, and when, by a proper legal proceeding, the Court having jurisdiction shall have determined, upon evidence, the issue for the State.

It is a rule of almost universal application, that if a statute fixing a penalty for an offence, does not either expressly or by necessary implication, cut off the common law prosecution or punishment for the same offence, it shall be taken to intend merely a cumulative remedy.

A corporation, by the very terms and nature of its political existence, is subject to dissolution by a surrender of its corporate franchises, and by a forfeiture of them for wilful mis-user and non-user.

A general demurrer to a plea confesses all facts stated in the plea, provided such facts be well pleaded.

Upon a general demurrer, the Court will render judgment against the party which commits the first error in pleading.

Under the Act of 1860, ch. 326, directing the State's Attorneys of certain counties to institute proceedings in the name of the State, to ascertain whether the charter and corporate powers and franchises of an incorporated turnpike company "ought, by reason of non-user or abuser, to be declared to be vacated and annulled," no form of proceeding being prescribed by the said Act -- HELD: that scire facias is the appropriate remedy whereby to attain the object of the Act.

The Act of 1832, ch. 306, though prescribing the mode of proceeding by scire facias, created no new remedy, but was merely declaratory of the law as it then was, and its repeal by the Code took no jurisdiction from the Courts of Common Law, but left that jurisdiction undisturbed.

Where a scire facias setting forth the obligation of a defendant under an Act of incorporation, expressly charges a violation of that obligation, and the mode and manner in which it was violated, and, in the language of the Act, seeks "to ascertain whether the charter and corporate powers and franchises of the defendant ought not, by reason of non-user and abuser of said powers and franchises, to be declared vacated and annulled -- HELD: that such scire facias sets out a substantial cause of action, and with such certainty that the defendant is fully informed of the grounds on which the plaintiff seeks to recover.

Where the 1st and 2nd pleas to the foregoing scire facias presented, in substance, the following defence: that because the State, in the exercise of its sovereign powers, had authorized the building of a railroad between the same termini as those of a turnpike company previously incorporated by her, and because the building of said railroad was followed by a serious loss of revenue by the turnpike company, therefore the said turnpike company is relieved from the obligations imposed upon it by its charter, and the State disabled from instituting and prosecuting proceedings to vacate and annul its charter, unless in violation of the Constitutions of the State of Maryland and the United States -- HELD: that such pleas do not offer a legal defence to the allegations of the scire facias, if those allegations are sustained by competent evidence, sufficient to justify the jury in finding for the plaintiff, on the issue of not guilty.

It may be true, as alleged in the 3rd plea to said scire facias, that the Act of 1838, ch. 54, recognized the corporate existence of the turnpike company, and admitted that its road was then maintained and kept in sufficiently good order and repair, and that during the whole of the year next preceding the issuing of said scire facias, it was kept in as good order and repair as when said Act was passed; or, as is alleged in the 4th plea, that the State, by its Acts of Assembly and the conduct of its officers, admitted that until 1858, the said road was kept in sufficiently good order and repair, and that while in that condition, the company was enabled to effect, by agreement, a sale of stock, from the proceeds of which sale the said road was put in better order during the year next preceding the issuing of said scire facias, than it was at the date of said agreement and sale; yet it cannot be successfully contended that the State, by its action set forth in said pleas, deprived itself of the right to institute the proceeding in this case.

Notwithstanding the Act of 1833, recited in the 5th plea, and the privilege to charge tolls on steam-carriages, and the resolution passed by the turnpike company, to contract for the loan of money upon the security of the tolls, and though the said company may have applied all the tolls (as stated in the 7th plea) to the repair of the road, the State is not barred by the matters so pleaded, of its right to institute the proceedings in this case.

A plea of limitations not filed within the time prescribed by the rules of Court, was properly stricken out by the Court below, and in the absence of the rule from the record, it must be presumed that the Court acted in conformity with its own rule.

The proceeding under the scire facias, in all its stages in this case, is essentially a civil action, and within the cognizance of the Superior Court of Baltimore city.

A witness, examined upon his voire dire, stated that he constantly used said turnpike road, sometimes commuting his toll by the year, and sometimes paying by the trip; and that if said road be condemned in the present proceeding, he will travel over it free of toll, because, in his opinion, it will then be a county road. HELD: That the interest disclosed by the answer of the witness, is not such as to disqualify him; and that if it appears to the Court that a witness is not, though he thinks himself interested, he shall be sworn in chief.

The plaintiff offered in evidence to the jury the want of repair of the defendant's road, in parts thereof lying outside of the limits of the city of Baltimore, the defendant objecting to the offer -- HELD: That the objection was not tenable, because the road was an unit, and the evidence should be co-extensive therewith.

Where the evidence offered by the plaintiff and objected to by the defendants, was a want of repair of the defendants' road, "existing more than one year before the commencement of this prosecution," the Court held as follows: Conceding that a defence under Art. 57, sec. 10, of the Code, may be availed of under the general issue, without being specially pleaded, (though not so deciding,) the provision of the Code referred to does not apply to the proceeding in this case.

Although the result of a decision on the scire facias, against the defendant, will involve a forfeiture of its franchise, it cannot be said that this is a prosecution for a fine or forfeiture, within the meaning of the sec. and Art. of the Code referred to.

Questions propounded to a witness, on cross-examination, as to what were the calculations upon which were based certain expectations of profit from a contemplated purchase of the road by a new company, in the event of its condemnation, are wholly irrelevant to the issue in the case, and inadmissible.

The plaintiff having offered evidence tending to show the wilful neglect of the defendant to keep its road in repair, the defendant sought to rebut this evidence by proof of its inability to keep said road in repair, in consequence of certain legislation by the State -- HELD: That such rebutting evidence was inadmissible.

A prayer submitting to the jury to find whether the defendant had failed and neglected to maintain and keep its road, or parts thereof, and the bridges over the streams crossing the road, in good order and repair, and whether the same were maintained in the manner prescribed by the Act of 1812, ch. 326, and presenting to the jury the subject of inquiry, in conformity with the requirements of the Act, was properly granted.  

COUNSEL:
G. W. Dobbin, for the appellants:

We insist that the charter and corporate powers and franchises of the appellants ought not to be declared to be vacated and annulled, but that on the demurrers to the pleas, final judgment should be given for the defendants. For on those demurrers the Court is to go back to the first fault. People of Vermont vs. Society for Propagating the Gospel, Paine's C. C. R., 660. Atty. Gen. vs. Petersburg & Roanoke R. R. Co., 6 Iredell, 465. And here it was a fault to resort to the scire facias at all. For "there is no power reserved to destroy the franchise." Kellogg vs. Union Co., 12 Conn., 19. And according to section 26 of the charter, the proceeding should have been by information to a justice of the peace. Under that section, not even an indictment would lie. 2 Hale's P. C., 171. Rex vs. Buck,  [**14]  1 Stir., 679. Rex vs. Wright, 1 Burr., 545. Brown vs. Com., 3 S. & R., 274. Com. vs. Evans, 13 Id., 426. If it be said, that under section 23, there might be an indictment, still the remedy must stop there. For "it is a rule, that upon a new statute which prescribes a particular remedy, no remedy can be taken but the particular remedy prescribed by the statute." Stevens vs. Evans, &c., 2 Burr., 1157. Underhill, &c., vs. Ellicombe, McClel. & Y., 450. It will not do to say that this is matter of contract. The Supreme Court of the United States, after observing that "such penal provisions are to be found in many charters," tells us that the Court "are not aware of any case in which they have been held to be mere matters of contract." State of Maryland vs. Balto. & Ohio R. R. Co., 3 How., 552. But suppose it be conceded that the Act creates an obligation, what then? It may be true, as Ld. Tenterden says, that "if an obligation is created, but no mode of enforcing its performance is ordained, the common law may, in general, find a mode suited to the particular nature of the case." But "where an Act creates an obligation, and enforces the performance in a specified manner," he considers,  [**15]  and the King's Bench "take it to be a general rule, that performance cannot be enforced in any other manner." Doe vs. Bridges, 1 Barn. & Adol., 859, 20 Eng. C. L. Dundalk R. Co. vs. Tapster, 1 Adol. & El., N. S., 667, 41 Eng. C. L. Stevens vs. Jeacocke, 11 Adol. & El., N. S., 741, 63 Eng. C. L. Marshall, &c., vs. Nicholls, 18 Adol. & El., N. S., 882, 83 Eng. C. L.

Nor is this view answered by the judgment in the latter part of the reign of Charles II, upon the information in the nature of a quo warranto in The King vs. Mayor, &c., of London, 2 Show., 279. For this judgment found support in statutes which do not exist in Maryland; of which one was the statute concerning liberties and franchises, and the quo warranto, entitled statutum de quo warranto, passed 6 Edw., 1. (1278,) of which Ld. Coke treats in 2 Inst., 279, 280; and another was the Stat. 28 Edw., 3, ch. 10, enacting that "on the first offence the city of London shall forfeit 100 marks; on the second, 2,000; and for the third, the liberty and franchise of the city of London shall be taken into the King's hands." 2 Show., 278. To this the Court expressly refers as authority for its judgment.

And notwithstanding this [**16]  source of authority for the judgment, it was greatly disapproved. See 6 Hume's Eng. Ch., 69, p. 258. 2 Hallam's Const. Hist., 611, 612. 3 Steph. Com., 148. 9 Gill, 404. It was in vain that Charles II granted new charters. The proceedings as to London, Chester, and other corporations, were declared void, by a proclamation of James II, nine days before the landing of King William. Newling vs. Francis, 3 T. R., 196; then, by a statute of 2 W. & M., sess. 1, ch. 8; and also by the House of Lords, sitting as an appellate tribunal, Skinn., 310. See, also, Eyres, J., in S. C., (King vs. Mayor, &c., of L.,) 1 Show., 278; and Sir James Smith's case, 4 Mod., 52; Pepper vs. Mayor, &c., of Drogheda, 2 Brown, Par. Cas., 321, of Tomlin's ed.; and The King vs. Amery, Id., 336. Yet the judgment of the King's Bench in The King vs. Amery, 1 T. R., 575, 2 Id., 515, "has exerted much influence upon the text writers; and they have sometimes misled American judges." For notice has not always been taken of the fact, adverted to by the Supreme Court of the U. S., in Bacon, &c., vs. Robertson, &c., 18 How., 484, that the judgment of the King's Bench was reversed in the House of Lords; that House (in accordance [**17]  with the unanimous opinion of the judges who advised them) holding that the prior charter remained in force, and that the new charter, granted by Charles II, was void, ab initio. 2 Brown's Par. Cas., 336, of Tomlin's ed.

Further legislative provision was made by the Stat. of 9 Ann., ch. 20, (2 Selw., 1190,) discussed in The King vs. Taylor, 2 Barnard, 238, 280, 316, 320, and Rex vs. Ponsonby, Sayer, 245, 2 Brown's Par. Cas., 319, of Tomlin's ed. But that statute has not been enacted in Maryland; and it moreover relates to an information in the nature of a quo warranto, and not to a proceeding by scire facias, as this is.

We submit that no authority to sustain this proceeding is furnished by the judgments in an arbitrary reign--judgments afterwards declared illegal by the legislative and judicial tribunals; judgments founded on English statutes, which have not been enacted in Maryland, and rendered not on a scire facias like this, but on an information in the nature of a quo warranto. 3 Steph. Com., 148.

Nor is authority for this proceeding to be found in cases in this country, founded upon State enactments, which are of no force in Maryland, and in which, moreover, the [**18]  proceeding was not by scire facias, but by information. Such are the cases of the Atty. Gen. vs. Petersburg & Roanoke R. R. Co., 6 Iredell, 456, and The People vs. Bank of Niagara, 6 Cow., 196; of which the former was an information, founded on the North Carolina Act of 1831, Rev. Stat., ch. 26; and the latter had to sustain it (beside the stringent provision in the tenth section of the charter copied) the general statute of 1825, sess. 48, ch. 325, sec. 7; from which is taken the provision in 2 R. S., part 3, art. 2, ch. 9, sec. 39, p. 583 of 1st, p. 483 of 2nd ed.

The only statute on the subject, existing in Maryland, is the Act of 1860, ch. 326, passed in view of the rule in England, as to the authority of the Attorney General, (Ibbotson's case, Cas Temp. Hardw., 261; Rex vs. Carmarthen, 2 Burr., 870; The King vs. Ogden, &c., 10 Barn. & Cress., 230, 21 Eng. C. L.,) and the understanding here, that no such proceeding can be maintained but at the instance of the Government. Com. vs. Union Fire & Marine Ins. Co., 5 Mass., 230. Wallace vs. Anderson, 5 Wheat., 291.

This Act does not prescribe the nature of the proceedings to be instituted. It may be that the draftsman of the [**19]  Act thought the proceedings would be regulated by the general Act of the 18th of March 1833; but that not being retained in the Code of Maryland, can furnish no rule on the subject.

The more the question is examined, the more insuperable will be found to be the difficulties in the way of the other side. When we are told that, although section 26 of the charter gives a specific remedy, and there is no general statute giving any other; yet, nevertheless, the other side claim that a scire facias lies, alleging the forfeiture of the defendant's franchise, (3 Cruise's Dig., tit. 27, p. 250; 5 Id., tit. 34, p. 39,) we answer that this claim is inconsistent, not merely with the general rule, that the performance can be enforced only in the mode prescribed by the statute creating the obligation, but also with a rule no less general, that a scire facias is a writ founded on matter of record.

In England, the King may proceed by scire facias to annul letters patent for an office. Rex vs. Eston, 2 Dy., 198. For they are enrolled in the Court of Chancery, and therefore matter of record. 4 Inst., 209; also 88. 2 Bac. Abr., tit. scire facias (C) 3. 2 Wms. Saund., 72, a. But the English [**20]  Courts keep steadily in view that a scire facias is a judicial writ, and ought to be founded on a record. The King vs. Rooks, Cro. Car., 491. The King vs. Butler, 3 Lev., 223.

Here there is no such record as existed in those cases, there being no office found, and the scire facias not being founded upon any letters patent enrolled of record.

The opinion in The King vs. Pasmore, 3 T. R., 244, cited in Slee vs. Bloom, 5 Johns. C. R., 380, was delivered before the judgment of the King's Bench, in The King vs. Amery, 2 T. R., 515, was reversed by the House of Lords, (2 Brown's Par. Cas., 336,) and may not have been expressed quite so carefully as it would probably have been if delivered after that reversal; but it may well be satisfied by applying it to the case of letters patent granted by the King. There is no occasion to construe it--nor should it be construed--as in disregard of the distinction, well established in England, between the case of one claiming merely under such letters patent, and a corporation created by an Act of the Legislature. Grant on Corp., 42, note (h;) also 307. If so construed, it would be nothing more than an obiter dictum. Upon no better foundation [**21]  than this dictum rests the dictum of Buchanan, C. J., in the Canal Co. vs. Railroad Co., 4 G. & J., 121, unless, indeed, the Act of 1832 was in force at the time of his opinion, as it was at the time of the decisions in the Regents of University vs. Williams, 9 Id., 326, and in the Board of Com. vs. The State, 9 Gill, 403. In the last case, by mutual consent of parties, it was agreed that a scire facias be issued to try the alleged forfeiture. In the present case, there is no such consent, and for the first time the Court of Appeals of Maryland is called on judicially to decide whether, without such consent, and without any such Act as that of 1832, a scire facias is the proper remedy.

The position that the Act of 1832 was "declaratory only," and that without it the quo warranto was not, and the scire facias was, the proper remedy, is opposed to cases before cited, and to Com. vs. James River Co., 2 Va. Cas., 190. The further position, that in Maryland there are "no other corporations except those chartered by the Legislature," may not be entirely accurate, if it be true that there are general statutes under which there are records of corporations.

When, as in this case,  [**22]  a corporation claims to be created by a direct Act of the Legislature, it is the misfortune of the other side that there is in Maryland no general statute under which there may be prosecuted against it such a scire facias as lies at common law against one claiming under letters patent. To say that there ought to be such a statute, will not avail them; for, as this Court has said, "it is the province of Courts of Justice to expound laws, and not to legislate; that, is a duty which belongs to a different department of the Government." Mitchell vs. Mitchell, 1 Gill, 83, 84.

In the absence of any statute of Maryland changing the common law rule, it is for this Court to decide according thereto, and hold that a scire facias will not lie against a corporation aggregate to vacate or annul a charter created by statute, there being in the Court from which the scire facias issues, no record on which to found it. Bynner vs. Regina, 9 Adol. & El., 553, 58 Eng. C. L.

Even supposing a scire facias would lie, "still legal causes must be stated." "For every imaginable breach, the law does not design that the charter of a corporation must be revoked." Board of Com. vs. The State, 9 Gill,  [**23]  403. Here there is no breach at all as to the bridges, for the 13th section of the charter, giving power to erect bridges, is permissive only, not mandatory. "Shall have power to," means no more than "may," and in the charter this is plainly distinguished from "shall." Moreover, as to the road itself, the plaintiff "must set out the substance of a good cause of forfeiture, in its essential circumstances of time, place and overt acts. That rule belongs to all pleading, and especially is it proper in reference to a proceeding, in its nature criminatory, to insist upon a forfeiture of valuable franchises, which cost a great outlay of capital." Ruffin, C. J., in Atty. Gen. vs. Petersburg & Roanoke R. R. Co., 6 Iredell, 465. Here that rule is not complied with. As there was judgment for the defendants on the 7th, 8th and 10th replications in The People vs. Bristol & Rensselaerville T. P. Co., 23 Wend., 231, so there should be judgment for the defendants here.

II. If, looking at the charter and allegations of the plaintiff, a prima facie case were shown for a scire facias, that remedy appears quite inappropriate, when the allegations in the 5th and 6th pleas are considered in connection [**24]  with section 31 of the charter. The State must be held to have contracted with the company, in contemplation of such a demise as is authorized by that section, and the State cannot maintain this proceeding when it is not "acting up to the terms of its charter, and complying with its obligations." Effect must be given to the demise to the full extent contemplated by the statute. The subject authorized to be granted, must be held to pass for the full term of seven years, and during the time for which the State has authorized the demise, it cannot, through any tribunal, impair that demise. how, then, on this scire facias, can there be a judgment of forfeiture? In England there are many turnpike Acts, giving power to mortgage the tolls. Doe vs. Booth, 2 Bos. & Pul., 219. Doe vs. Lediard, 4 Barn. & Adol., 137, 1 New. & Man., 683. Doe vs. Penfold, 3 Adol. & El., N. S., 757, 43 Eng. C. L. Each mortgagee is held entitled, if not paid, to possess himself of the mortgaged premises. But we find in England no instance of a proceeding by scire facias or quo warranto under such circumstances. Seeing the number of turnpike Acts with mortgage powers, the absence of such proceedings there, is itself [**25]  suggestive. It is thought there, that what is proper in such a case, is not a forfeiture of the charter, but obedience to its provisions; and the remedy to procure such obedience, is very different from a scire facias or quo warranto. Grant on Corp., 308. Buller, J., tells us that to enforce obedience to Acts of Parliament, a mandamus is the proper remedy. Bull., N. P., 199. It was the remedy in The King vs. Severn & Wye Railway Co., 2 Barn. & Ald., 646, and The Queen vs. Bristol Dock, 2 Adol. & El., N. S., 64, 42 Eng. C. L. If there it was the proper remedy, a fortiori, no other remedy can be proper here, in view of the peculiar provision as to a demise of the tolls. Nor is this argument answered by imputing to us the doctrine "that the existence of a private contract of the corporation should force upon it a perpetuity of existence, contrary to public policy, and the nature and objects of its charter." On the contrary, what we contend for is quite consistent with Mumma vs. The Potomac Co., 8 Peters, 286, 287, as understood in Bacon, &c., vs. Robertson, &c., 18 How., 486, 487. We say that the doctrine of the latter case will be carried out in the best and most simple manner by holding,  [**26]  in accordance with the English authorities, that the scire facias is not to be maintained upon the case disclosed by these pleas, but the plaintiffs are to be left to resort to the writ of mandamus. On a mandamus, the Court would consider not one section merely, but all the sections of the charter. Obedience to those sections of the charter on which the State relies, would be enforced so far as consistent with the rights arising under the section authorizing the demise.

III. The act "to furnish ground of forfeiture," must be wilful. It must be something more than accidental negligence. Lewis, C. J., in Erie & N. E. R. R. Co. vs. Casey, 1 Grant, 285. Woodward, J., considers there must be "something more than involuntary misconduct, or mere technical wrongs--something that implies a high degree of turpitude--a wilful malfeasance--a species of misdemeanor," S. C., 293; and Black, J., in delivering the opinion of the majority of the Court, lays down "that it must be wilful, that is, not involuntary." S. C., 2 Casey, (26 Penn.,) 319. Not only is this a rule of law, but in the scire facias it is alleged that the defendants have wilfully neglected and failed to keep their road in good [**27]  order and repair. This allegation is well answered by the plea which states that, although the stockholders have not had what they are entitled to under the 19th, 20th, and 21st sections of the charter, yet "all of the tolls and duties received for passage upon and along said road, have been applied to maintain and keep said road in good order and repair," thereby showing that, if there has been such failure, it has not been the fault of the defendants, but, on their part, wholly involuntary. On general demurrer, the objection that the plea is an argumentative denial of not guilty, is of no avail, when the facts alleged in the plea, and admitted by the plaintiffs, show that there has been no breach of duty. Brass vs. Maitland, 6 El. & Bl., 486, 88 Eng. C. L.

IV. The allegation in the scire facias is still more conclusively answered by the 1st and 2nd pleas. It will not do to say that a party contracting to do a thing, must do it at all events. The plaintiffs admitting that the condition precedent has been performed, and claiming to divest an estate or franchise for breach of a condition subsequent, (People vs. Manhattan Co., 9 Wend., 379; Thompson vs. The People, 23 Id., 588,)  [**28]  the breach of such condition is excused when performance is prevented by the act of God or of the law, or of the party complaining of the breach. Br. Abr., tit. Conditions, pl. 127, 150. Vin. Abr., tit. Condition, (G. c.) pl. 18, 19, and (I. c.) pl. 16. Bac. Abr., tit. Condition, (Q.) This is illustrated as to the act of God in Co. Lit., 206, b; Kingswood vs. Chapman, 2 Leon., 155; Wood vs. Bates, Sir Wm. Jones, 171; Williams vs. Lloyd, Id., 179; Bridges vs. Bedingfield, 2 Mod., 28; The People vs. Manning, &c., 8 Cow., 297; Carpenter vs. Stevens, &c., 12 Wend., 589; The Queen vs. Justices of Leicestershire, 15 Adol. & El., N. S., 88, 69 Eng. C. L.; Hall vs. Wright, El., Bl. & El., 746, 96 Eng. C. L. As to the act of law, in Brewster vs. Kitchell, 1 Salk., 198; The People vs. Bartlett, 3 Hill, 570. And as to the act of the party complaining, in 1 Rolle's Abr., 453, 454, tit. Condition, (N.;) Id., 455, tit. Condition, (P.;) 5 Vin. Abr., Condition, (M. c.,) 242; Id., (N. c.,) 243, 244; Co. Lit., 206, b; Shep. Touch., 174; Com. Dig., Condition, (L.) 6; 2 Man. & Gr., 744, note (b;) Cort vs. Ambergate, &c., Railway Co., 17 Adol. & El., N. S., 146, 79 Eng. C. L.

On the ground that the [**29]  effect of a particular Act of Parliament was to render impossible the performance of the obligation by the corporation, judgment was given for the defendants in Brown vs. Mayor, &c., of London, 9 Com. B. (J. Scott,) N. S., 726, 99 Eng. C. L. And because of the conduct of the plaintiffs, it did not lie in their mouth to say that there was a breach of contract in Pole vs. Cetcovitch, 9 Com. B., (J. Scott,) N. S., 438, 99 Eng. C. L.; Erle, C. J., confessing "a feeling that the defendant was thoroughly entitled to a decision in his favor before any tribunal."

As Lord Coke tells us, the common law is "always grounded upon right and equity." 10 Rep., 108. It is "built on the perfection of reason." 3 Rep., 13, b. Nihil quod est contra rationem set licitum. Co. Lit., 97, b. And thus, while Courts of Equity act on the rule that he who asks for equity must do equity, Courts of Law act on the analogous principle that "if the obligee himself be the cause of the non-performance, he shall have no advantage of any forfeiture." Croke, J., in Quick vs. Harris, 3 Bulstr., 31.

In the present case, to act on this principle and hold the pleas good, is nowise inconsistent with the Charles River [**30]  Bridge vs. Warren River Bridge, 11 Peters, 420, or the Washington & Baltimore Turnpike Road vs. Baltimore & Ohio R. R. Co., 10 G. & J., 392.

One who is absolute owner of a tract of land on which there is a mill and a stream of water to its wheels, though he had taken from another a covenant to work the mill, might, in the exercise of his "sovereign rights and powers," construct another mill and put it in operation, and divert to the second mill the water which had before run to the first. But he could not, in any Court of Justice, sustain a claim founded on a breach which he himself had, by such diversion, caused; for the covenantor will be "discharged from the obligation, if the party for whose benefit it was made, performs any act by which the covenantor is incapacitated to observe his contract." Platt on Cov., part 6, ch. 2, p. 595. Among other illustrations of the principle are the following, in 5 Vin. Abr., tit. Condition, (N. c.,) 244:

6. "If lessee for years covenants to drain the water that stands upon the land before such a day, and after the lessor enters upon the land and disturbs the lessee, this is a good excuse of the performance of the condition."

7. "If [**31]  a man covenants with me to collect my rents in such a town, if I interrupt him in the collecting thereof, this excuses the covenant."

8. "If lessee for years of an house covenants to repair it, and to leave it in as good plight as he found it, and after certain sparks of fire come out of the chimney of the lessor, in an house not much remote, by which the house of the lessee is burnt, this will excuse the performance of the covenant to the lessee, so that he is not bound to rebuild, because this comes by the act of the lessor himself."

And there are many other cases illustrating what (p. 246, pl. 25) is laid down as a "general rule in conditions, that if the plaintiff himself be the cause of disablement, so as the condition cannot be performed, he shall not take advantage of the condition."

Pl. 31, it is said, "If A. be bound to B. that J. S. shall marry Jane G. before such a day, and before the day B. marries with Jane, he shall never take advantage of the bond; for that he himself is the mean that the condition could not be performed; and this is regularly true in all cases."

Is it to be maintained that the State of Maryland is above the law--that she is not bound [**32]  by the ordinary principles of justice? This surely cannot be. It must be no less true of the judiciary of Maryland than of the judiciary of Pennsylvania, that "the rules of law which govern it in the administration of justice, form a part of every contract, whether with the State or with individuals." Erie & N. E. R. R. Co. vs. Casey, 1 Grant, 283.

In the scire facias of The King vs. Rooks, Cro. Car., 491, for absence from executing his office from the 10th of June to the 12th of August, his plea that he was in prison, and in execution at the King's suit, would have been a valid defence, if the absence from office, caused by the King's imprisonment, had been without the defendant's previous default. There was question, as the imprisonment proceeded from defendant's default in not paying a debt, and even this question was avoided; "there being many other causes of forfeiture of his office, it was conceived the King should not give evidence" of his mere absence.

In the Presb. Church vs. City of N. Y., 5 Cow., 538, if the city of New York, instead of being defendant, had been plaintiff, suing for breach of the covenant by the lessee to use the premises as a cemetery, its own [**33]  legislative Act, preventing such use, would have been a complete answer to the suit.

The principle is, that "if the obligee himself be the cause that the obligation cannot be performed, this is no forfeiture; for it is his own act." 5 Vin. Abr., 246, tit. Condition, pl. 23. This principle equally applies, whether the proceeding be by an individual or by the King, the State or the people; the rule as to what is a sufficient performance, or a sufficient excuse for non-performance, being the same in all cases, and governing where the proceeding is by a scire facias or information in the nature of a quo warranto, just as much as in any other case. Thompson vs. The People, 23 Wend., 586.

V. "It must be remembered that forfeitures are odious, and that the law not only construes with great strictness statutes imposing them, but always lays hold of every act of waiver to relieve against them." Lewis, C. J., in Erie & N. E. R. R. Co. vs. Casey, 1 Grant, 278. There may even be "a tacit waiver of the performance of a condition subsequent." Kellogg vs. Union Co., 12 Conn., 19. The allegation in the scire facias, that the defendants have wilfully and for a long time neglected and failed,  [**34]  &c., is on the third plea, to be considered in connection with the statute of Maryland, in the Code, p. 397, Art. 57, sec. 10, and the principle that the State may waive any breaches, Com. vs. Union Ins. Co., 5 Mass., 232; State of Maryland vs. Balt. & Ohio R. R. Co., 3 How., 552. By the third plea, we set up the Act of the 10th of February 1839, as recognizing the turnpike company as a corporation legally existing, and precluding the State from setting up as a ground of forfeiture what existed then, just as much as during the year next preceding the commencement of this suit. People vs. Manhattan Co., 9 Wend., 379, et seq. Erie & North East R. R. Co. vs. Casey, 1 Grant, 282, 283. Canal Co. vs. R. R. Co., 4 G. & J., 122. Atty. Gen. vs. Petersburg & Roanoke R. R. Co., 6 Iredell, 469.

It being clear that the sovereign authority may determine "when violations of a charter shall be overlooked," (Board of Com. vs. The State, 9 Gill, 404,) even if the other side could show that the Act of the 10th of February 1839, does not amount to such recognition and admission as is claimed by the third plea, this could not avail them on the fourth plea. On this plea the cases of The People vs.  [**35]  Kingston & Middleton T. P. Co., 23 Wend., 193, and The People vs. Phaenix Bank, 24 Wend., 432, cannot avail them. If they refer to particular Acts of Assembly, and argue that they do not amount to such admission, or if they argue that there was, in fact, no admission beyond what is contained in the Act of February 10th, 1839, the answer is, that any such matter of fact might have been inquired into on a replication, but is not open to inquiry on a demurrer. On the demurrer to the fourth plea, the Appellate Court must consider it to be matter of fact, that the State of Maryland, by Acts of its General Assembly, and conduct of its officers, has admitted, that until the --- day of -----, 1858, said turnpike road was maintained and kept in sufficiently good order and repair, and has admitted that until the time last mentioned, no sufficient cause existed for vacating and annulling its charter and corporate powers and franchises. And on this demurrer the Appellate Court must consider it to be also matter of fact that "by such admissions stockholders in the said turnpike company were, at the time last mentioned, enabled to make an agreement to sell, and other persons were, at the same time,  [**36]  induced to make an agreement to purchase, at a large price, to wit: the price of $ 16,000, 1,540 shares of stock in the said turnpike company, and pursuant to such agreement, to wit: on the 1st day of October 1858, the said price was paid, and the said 1,540 shares of the stock transferred."

Now it is a rule of law, that "where one, by his words or conduct, wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time." Pickard vs. Sars, &c., 6 Adol. & El., 469, 33 Eng. C. L.; Gregg vs. Wells, 10 Adol. & El., 90, 37 Eng. C. L.; Cornish vs. Abington, 4 H. & N., 549; especially Pollock, C. B., 555, and Bramwell, B., 556; Sergeant's Excrs. vs. Ewing, 30 Penn., (6 Casey,) 81. What, then, is shown here?

The fourth plea expressly alleges, and the demurrer admits it to be matter of fact, "that the said transfer was made and the purchase money paid upon the faith of the admission by the State of Maryland, that while the said turnpike road was maintained and kept in as good [**37]  order and repair as it was at the time of the agreement to purchase, the State of Maryland would consider that no sufficient cause existed for vacating and annulling the chartered and corporate powers and franchises." And then the fourth plea avers, and the demurrer thereto admits, "that soon after the said transfer, the said turnpike road was put in better order and repair, and during the whole of the year next preceding the commencement of this suit, the said turnpike road has been in better order and repair than it was at the time of the said agreement to purchase." Upon these facts, alleged by the defendants, and admitted by the plaintiff to be true, the language of Ruffin, C. J., is in point: "Surely," he says, "it would not comport with the good faith that should actuate every government, if the State were to turn around, immediately after inducing this further expenditure by the company, and getting the work done, and insist upon a forfeiture." Atty. Gen. vs. Petersburg & Roanoke R. R. Co., 6 Iredell, 470.

VI. The second and fifth pleas also draw in question the construction of a clause of the Constitution of the United States, as well as of the Constitution of the State [**38]  of Maryland; and the validity of authority exercised under the State of Maryland, on the ground of its being repugnant to the Constitution of the United States. In connection with these pleas, it may be proper to refer to the Acts of 1828, ch. 139, sec. 20, and 1812, ch. 78, sec. 11, and the case of Erie & N. E. R. R. Co. vs. Casey, 1 Grant, 294, 295 and 298. Surely the right claimed by the defendants could be effectually set up against a statute of the State of Maryland, which, in plain and direct terms, either repealed our charter, or prohibited tolls from being received on the turnpike. Suppose, in the latter case, that after taking from the company the means of keeping its road in good order and repair, the State had, upon the ground of its not being kept in good order and repair, proceeded by scire facias to vacate and annul the charter, might we not well say that, under such circumstances, to forfeit the charter would be to impair the obligation of the contract, and take private property for public use, without just compensation? Could this defence be met by telling us "that such a term is never applied to the judgment of a Court over a subject matter within its jurisdiction?  [**39]  " The answer is, that the obligation of the contract is impaired by a law of the State, when by means of an authority exercised under that law there is, without our consent, taken from us what we were entitled to under the contract. What the company was entitled to, under its contract with the State, is taken away, when the State, through one department of its government, deprives the company of the means of keeping its road in order, and then, through another department, pronounces judgment of forfeiture against the company for not keeping it in order. Such a judgment would be forbid by the first principles of justice, as well as by the Constitution of Maryland and the Constitution of the United States. And if, after taking from the company its whole income, the State would have no ground to complain of it for not keeping its road in order, neither has it any better ground of complaint, when it has taken from the company part of its income, and with the remainder the road cannot be kept in any better order than it now is. If the former would not be consistent with the Constitution of Maryland, or of the United States, neither would the latter. And the case is still stronger, when we [**40]  look to the allegations as to the demise in the fifth plea.

Nor will this doctrine require the existence of roads impassable and dangerous, or prevent better improvements, either by the State herself or by another company. Boston Water Power vs. Boston & Worcester Rail Road, 23 Pick., 393. Central Bridge Corp. vs. City of Lowell, 4 Gray, 481. "If it come to this, that public faith is to be violated, or the benefit of such improvements lost," the Supreme Court of Connecticut has well said, "banish the improvement! The community will profit more by preserving public faith, than they will gain by its violation; although for a time it may seem otherwise." But the Court believes that neither course need be taken. It thinks "there is a conservative principle by which the improvement may be made, and good faith preserved. It is this: that private property may be taken for public use, upon compensation made." Enfield Toll Bridge Co. vs. Hartford & New Haven Rail Road Co., 17 Conn., 58, 59. Notwithstanding there was an information in the nature of a quo warranto, the Court would not, when there was no provision for compensation, allow the charter to be invaded, in Washington Bridge Co.  [**41]  vs. The State, 18 Conn., 53.

VII. The Act of 1860, (directing the State's Attorneys to institute proceedings in the name of the State, to ascertain whether the charter and corporate powers and franchises ought, by reason of non-user or abuser, to be declared to be vacated and annulled,) directed what, in the language of Blackstone, "is properly a criminal method of prosecution," 3 Bl. Com., 263; and under the Constitution of Maryland (Art. 4, sec. 11) it should not have been in the Superior Court of Baltimore city. The Court, therefore, erred in sustaining the demurrer to the additional plea mentioned.

A reversal upon any one of the points so far made, will be sufficient to put an end to this case. There are other points sufficient to cause the judgment to be reversed, the verdict to be set aside, and other proceedings to be had. Thus:

VIII. There was error in striking out the 8th plea, founded on the Code, p. 397, Art. 57, sec. 10. Even in an action on contract, the view of the statute of limitations is different in England, (Rucker, &c., vs. Hannay, 3 T. R., 124; Maddox vs. Holmes, &c., 1 Bos. & Pul., 228;) and in Virginia, (Tomlin's Adm'r vs. How's Adm'r, Gilm. 7,)  [**42]  from that taken in Wall vs. Wall, 2 H. & J., 79; State vs. Green, 4 G. & J., 384; and Nelson & Wife vs. Bond, 1 Gill, 218. But the present is very different from those cases. In such a case as this--a proceeding to enforce a forfeiture--the plea, under the circumstances appearing on the record, should be regarded as a plea to the merits. And even if the other pleas had been previously filed, the 8th should have been received under the broad power (given by the Acts of 1785, ch. 80, and of 1809, ch. 153, sec. 1, and extended by the Code) to allow amendments before verdict, so as to bring the merits fairly to trial. From what the defendants are entitled to under the statute, they are not to be debarred by any rule that is the mere creature of the Court. Union Bank vs. Ridgely, 1 H. & G., 407. Besides, the plaintiff, not having filed a declaration, did not bring himself within the rule. Kent vs. McEldery, 9 Gill, 493.

IX. Taking the Act of 1860 in connection with the general law of Maryland, the 2nd bill of exceptions shows error in admitting evidence of "want of repair of the defendant's road, in parts thereof, lying outside of the limits of the city of Baltimore."

X. Whether [**43]  the proceeding be a prosecution or a suit, the Code (p. 397, Art. 57, sec. 10) requires it to be commenced within one year from the time of the offence. The plaintiff is to show that it was commenced within the year; and the defendant may take advantage of the statute on the general issue, and need not plead it. 2 Wms. Saund., tit. 63, note (6.) Peake's Ev., ch. 5, sec. 1, pp. 273, 274. Stark Ev., Penal Action, part 4, pp. 1123, 1128. It was, therefore, plainly an error for the Court to admit--as the 3rd bill of exceptions shows it did--evidence of "want of repair of the defendant's road, existing more than one year before the commencement of this prosecution."

XI. Was Wartman, the witness named in the 1st bill of exceptions, a person disinterested? 10 Mod., 193. Can it be maintained he was not "in any sort interested in the matter to be tried?" 3 Burr., 1857. In England, in an action against the hundred, house-keepers within the hundred were not allowed as witnesses, though they paid no taxes nor parish duties. It was so laid down in 29 Car., 2; 1 Mod., 73, 74; and again in 12 Ann, Queen vs. Inhabs, of Hornsey, 10 Mod., 150. In the case of the Water Bridge of London, a freeman [**44]  of the city, though it was not sixpence concern to him, could not be admitted as a witness. So we are told in 1684, in Corp. de Sutton Coldfield vs. Wilson, 1 Vern., 254. In 3 W. & M., on an information for not repairing a highway between S. & B., evidence was rejected of witnesses who lived in either of said parishes of S. or B. Rex & Reg., vs. Buckeridge, &c., 4 Mod., 48, 49. In 1694, in a suit touching the loss and misapplication of a sum of money given for the benefit of the parishioners, the question being whether any inhabitant of the parish ought to be admitted as a witness, it was argued that the interest was so minute and inconsiderable that it could not be presumed to influence the witness, or bias him in his evidence. But the Court said: "The cases where the party was concerned in interest, though never so small, have always prevailed, and it was so resolved upon great debate in the case of the city of London, concerning the water bailiff." Dowdeswell vs. Nott, 2 Vern., 317. So in 1719, a charity being given for the clothing of six persons of the parish of E., the Lord Chancellor would not suffer any of the inhabitants of E. to be witnesses, because they were interested [**45]  as being eased in their poor rates. Atty. Gen. vs. Wyburgh, &c., 1 P. Wms., 599. In 12 Will., 3, "a house-keeper who pretended the like interest before his door, though he derived his title from under another person, was denied to be a witness." Farmers of Newgate Market vs. Dean, &c., of St. Pauls, 12 Mod., 372. And in 1697, '98, Holt, C. J., ruled that if the prescription be, that all the inhabitants of Blackacre ought to have common there, one of the inhabitants cannot be a witness to prove that another of said inhabitants ought to have common there, because in effect he would swear to give himself right of common there. Hockley vs. Lamb, 1 Ld. Raym., 731.

In England, material changes as to competency of witnesses, have been made by statute. For example, the Stat. of 1 Ann, ch. 18, sec. 13, provides that, upon the trials of indictments and informations against individuals for the non-repair of bridges, the inhabitants of the town, corporation, county, &c., where the bridge is, are competent witnesses. But there is no such statute in Maryland; and hence decisions upon the common law rule, as to competency, are as pertinent in Maryland now, as they were in England before such [**46]  statute. Moreover, the rule of Hockley vs. Lamb was affirmed in 1 Geo. I, in Reeves vs. Symonds, 10 Mod., 292. Again, in 10 Geo. I, one who had a burgage tenure, and also inhabited in the borough, could not be a witness to prove a right in himself, and in such as had his qualifications exclusive of all others. Stevenson vs. Nevinson, 2 Ld. Rym., 1353.

In the present case, the objection to the witness is as decisive as the objection to the witness in The Company of Carpenters vs. Hayward, 1 Dougl., 374. For, in the event of a judgment against the company, the witness would be discharged from tolls and actions to which he would otherwise be liable. This case, and others on the same principle, are recognized in 2 Stark. Ev., part 4, tit. Corporation, p. 427; and in Greenl. Ev., part 3, ch. 2, sec. 405. Nor does the exception apply, that "a party interested will be admitted when no other evidence is reasonably to be expected." Bull, N. P., 289. For as Buller, J., said of the party in The Company of Carpenters vs. Hayward, it is not true that he could have had no other sort of witnesses. And, therefore, the present case is distinguishable from Lancum vs. Lovell, 9 Bingh., 465, 23 Eng.  [**47]  C. L.

XII. If the Court, on the one hand, went far in overruling objections to the competency of witnesses, it should, on the other hand, not have restricted the cross-examination. 1 Stark. Ev., part 2, sec. 17, p. 129. 1 Greenl. Ev., part 3, ch. 3, sec. 445. The question here, was no less proper than those allowed to be put in England, in David vs. Grenfoll, &c., 6 C. & P., 624, 25 Eng. C. L.; in New York, in Mechanics & Farmers Bank vs. Smith, 19 Johns., 123, and Lower vs. Winters, 7 Cow., 265; in Pennsylvania, in Cameron, &c., vs. Montgomery, 13 S. & R., 132; and in Maryland, in Crawford vs. Brooke, 4 Gill, 220, and Burckmyer vs. Whiteford, 6 Id., 13. We are told by Lord Denman, C. J., that "everything that comes out at a trial is material, if it goes to the credit of the witness;" and by Lord Abinger, C. B., that "every question of cross-examination which goes to the credit of the witness, is material," Regina vs. Overton, 1 Car. & Marshm., 659, 41 Eng. C. L.; and by Sutherland, J., in delivering the opinion of the Court in Lower vs. Winters, that "great latitude is allowed upon the cross-examination of witnesses." In Cameron, &c., vs. Montgomery, a witness for plaintiff was [**48]  asked by defendants, on his cross-examination, whether plaintiff had any property of his under his care, to cover it from his creditors. Having answered that he had not, defendant's counsel proposed to ask witness whether plaintiff did not buy witness' real property at his instance. The Court below erred in not permitting the question to be put; and for this error the judgment was reversed. The Court said: "If the plaintiff did buy the defendant's property at his instance, it was a circumstance which might show that the witness was under an obligation to him, and this might have some effect on his evidence. A party against whom a witness is produced, has a right to show everything which may, in the slightest degree, affect his credit." In the present case, had the Court allowed the witness to be examined as to the details of his plan, and his expectations of profit, the jury would have been better able to judge how far his testimony might be biassed by the hope of profit. Moreover, the answer might have been material, not only as to credibility, but also as to competency. True, the witness had been examined in chief, yet if in the course of the case it appeared that he was really interested,  [**49]  the objection to his competency might still have been taken. 1 Stark. Ev., part 2, sec. 11, p. 122. 1 Greenl. Ev., part 3, ch. 2, sec. 421. Dent vs. Hancock, 5 Gill, 128.

XIII. "On the general issue, the plaintiff must prove the whole of his case." 2 Tidds. Pr., 849. Steph. on Pl., ch. 2, sec. 3, rule 1, p. 278. The scire facias alleging that the defendants "have wilfully and for a long time neglected and failed to keep their road, &c., in good order and repair," and as already stated, the allegation of wilfulness being material, issue was taken on this allegation, and evidence was admissible to prove or disprove it. Lush vs. Russel, 5 W. H. & G., (Excheq.,) 203. Now the fifth bill of exceptions shows that the plaintiff "offered evidence to the jury, tending to show the wilful neglect of the defendants to keep its road in repair;" but when the defendant offered evidence to show there was no wilful neglect, his evidence was rejected! The error is obvious, and the injurious consequences of it manifest, when we see that the jury found that the defendants "have wilfully and for a long time neglected and failed" to keep their road, &c., in good order and repair. No such verdict could [**50]  have been found if, against the evidence offered on one side, rebutting evidence had been admitted on the other side. See Garner vs. Smith, 7 Gill, 4, 5.

XIV. What has been already said, is sufficient to show that the Court erred in giving the instruction mentioned in the sixth bill of exceptions. "A forced construction against the company is not to be adopted." Kellogg vs. Union Co., 12 Conn., 18. Boston & Providence R. R. Co., vs. Midland R. R. Co., &c., 1 Gray, 340. The charter is a contract between the Government on the one part, and the undertakers accepting the Act of incorporation on the other; and, therefore, what they both intended by the terms used, if we can ascertain it, forms the true construction of such contract. Boston & Lowell R. R. Co. vs. Salem & Lowell R. R. Co., 2 Gray, 29. Was it intended by both parties that the charter and corporate powers and franchises should be annulled, or liable to be annulled, if, over waters crossing the road, there was a failure to maintain and keep bridges in good order and repair? Surely not. So to hold, would be a forced construction of the thirteenth, and utterly inconsistent with the fourteenth section of the charter; a duty [**51]  is only prescribed with regard to the road itself. Again, as to the road itself, was it intended by both parties that the charter and corporate powers and franchises should be liable to be annulled if the road had, on any one day, come short of the precise state of order and repair in which it was required to be when gates were first erected on it? Such a construction is forbid by the twenty-sixth section, under which the inquisition would have to find it to be "out of order and repair," (that is, "not in a good state of general repair;" People vs. Bristol & Rensselaerville T. P. Co., 23 Wend., 232,) "for the space of fifteen days," at least. Unless the charter and corporate powers and franchises can be vacated and annulled for what would be insufficient to maintain a proceeding under the twenty-sixth section, it is impossible to sustain the instruction which required the jury to find a verdict for the plaintiff, if they believed "that the defendant had, at the time of the passing of the Act of 1860, ch. 326, given in evidence, failed and neglected to maintain and keep their road, or parts thereof, and the bridges over the streams crossing said road, in good order and repair."

XV.  [**52]  If the Court below could only do what was authorized by the Act of 1860, its judgment was clearly without authority. If it be said that it has a general jurisdiction in civil cases--that it sets in place of the King's Bench in England--still it could only exercise such jurisdiction and give such judgment as the King's Bench was authorized to exercise and give at common law. And at common law, on a scire facias, there could not be rendered such judgment as has been given in this case. Foster on Scire Facias, 272. Even in a case in which a scire facias would lie, as to vacate a patent, the Court might, after conviction, suspend the entry of judgment to vacate the patent. Bynner vs. Regina, 9 Adol. & El., N. S., 532, 533, 58 Eng. C. L. Then if we look to the proceeding by information in the nature of a quo warranto, it appears that even after the Statute of 9 Ann, ch. 20, judgment of ouster was not a matter of course. The King vs. Taylor, 2 Barnard., 238, 280, 316, 320. It certainly could not have been before that statute. Sir Dudley Ryder's view of the law as it was before that statute, is stated in Rex vs. Ponsonby, &c., Sayer, 245; the judgment in which case was affirmed in the House [**53]  of Lords, 2 Brown, Par. Cas., p. 319, of Tomlin's ed. It being competent to the State to pardon a forfeiture and to grant restitution where things remain in statu quo, (The King vs. Amery, 2 T. R., 568, 569,) the Court should, after the verdict, have let things remain in statu quo, until the Legislature could consider the subject. It was certainly erroneous to give judgment for costs. The King vs. Miles, 7 T. R., 363.

In every aspect the judgment is clearly erroneous, and should be reversed.

J. Prentiss Poe and R. J. Gittings, for the appellee:

I. The writ of scire facias is the appropriate proceeding whereby to ascertain whether a corporation has forfeited its charter by non-user or abuser of its corporate powers and franchises. Mandamus will not answer, for there the object is to compel a corporation in esse to perform some duty imposed upon it by its charter. Here the object of the proceeding is not to compel the corporation to repair its road and maintain it in good order, but to vacate and annul its charter, because of its failure to do so. Quo warranto is not the proper proceeding, because that properly applies where there is a corporate body, de facto only, but [**54]  which takes upon itself to act, though from some defect in its constitution or organization, it cannot legally exercise its powers. Scire facias, on the other hand, is resorted to to ascertain and enforce the forfeiture of a charter, when there is a legally existing body capable of acting, but which has abused its powers. Such is the case here alleged by the appellee.

The writ, it is true, can only be issued at the instance of the State, and violations of a charter cannot be taken advantage of in a collateral proceeding; for the State, with whom the contract is made, may not wish to enforce a forfeiture, and may, if she chooses to do so, waive the breach of any condition of the contract arising out of the charter. The law upon this point is now well settled in Maryland. Act of 1832, ch. 306. Act of 1845, ch. 75. Board of Com., &c., vs. The State, 9 Gill, 379. Regents of University, &c., vs. Williams, 9 G. & J., 365 and 426. Planters Bank vs. Bank of Alexandria, 10 G. & J., 346. Can. Co. vs. R. R. Co., 4 G. & J., 121 and 122. King vs. Pasmore, 3 Term Rep., 199 and 224. Ang. & Ames on Corp., t. p. 891. Slee vs. Bloom, 5 Johns. Ch. Rep., 366. Eastern Archipelago Co. vs. Regina, 22 [**55]  Eng. Law & Eq. Rep., 328. Foster on Sci. Fa., 12.

If it be said that the decisions in Maryland upon this subject, since the Act of 1832, were made with reference to the provisions of that law, it may be replied, that the case of The Can. Co. vs. The R. R. Co., 4 G. & J., 121, where the same doctrine is declared, was decided before its passage. That Act, it will be maintained by the appellee, was declaratory only, and its omission from the Code is entirely immaterial, so far as this case is concerned.

The English cases relied on by the appellants, to show that the remedy by scire facias is inappropriate, do not apply to such corporations as exist in this country. We have in this State no other corporations except those chartered by the Legislature, and if scire facias were not a proper form of proceeding to ascertain whether they have forfeited their charters, they would be entirely beyond the reach of judicial inquiry into their acts. All that is necessary in Maryland to authorize such a proceeding, is the assent of the Legislature. Such assent has been expressly given by the Act of 1860, ch. 326; and though it does not specify in terms the precise form of proceeding to be [**56]  adopted, the practice and authorities all show that the one resorted to here is the only appropriate one.

II. The first six pleas do not profess to deny that the road is not in the condition of repair required by the charter. That is done by the ninth plea. But they set up, 1st, excuses for their failure to maintain it in good order; 2nd, a waiver on the part of the State of that breach of their charter; and 3rd, it is averred that because of the hypothecation by the company of its tolls and revenues to parties who had become its creditors upon the faith of that hypothecation, it is exempted from all liability for that breach.

A demurrer admits what is pleaded, provided it is well pleaded. Neale vs. Clautice, 7 H. & J., 378. But all the pleas in this case are defective. 1 Code, Art. 75, sec. 2. Each one of them is an argument, is double, and states matters of evidence. Steph. on Pl., 257 and 258. They are all objectionable in form; they do not confess and avoid, nor do they deny and traverse. But even if well pleaded, they are not answers to the scire facias. Charles River Bridge vs. Warren Bridge, 11 Peters, 544 and 545.

1st. The first and second pleas present the proposition,  [**57]  that because the State, in the exercise of its sovereign powers, undertook to authorize the building of a railroad between the same termini as those of a turnpike company previously incorporated by her, and because the building of said railroad was followed by a loss of revenue by the turnpike company, therefore the turnpike company is relieved from the obligations imposed upon it by its charter, and the State is disabled from instituting and prosecuting an inquiry whether the company has complied with those obligations, or disregarded them.

We do not understand that the appellants question the right of the State to charter as many railroads or turnpikes as she sees fit, between any termini within her jurisdiction. Such right has been authoritatively settled, and is now universally conceded. Charles River Bridge vs. Warren Bridge, 11 Peters, 420. Balto. & O. R. R. Co. vs. Washington & Balto. Turnpike Road, 10 G. & J., 292. Pierce on Railway Law, 20.

But we understand their proposition to be, that the exercise of such admitted right by the State, disables her from enforcing, through her Courts, the forfeiture of the charter of a corporation, whenever that forfeiture can be [**58]  indirectly traced to such exercise. In other words, the State cannot exercise one of her admitted rights in a case like this, without stripping herself of another right, which would otherwise be equally indisputable. We, on the contrary, maintain that the State cannot, by exercising one right, lose the benefit of another right; that the surrender by her of a great police power, is never to be presumed, and that the exercise of such a power cannot be attended with the restrictions with which the argument of the appellants would fetter her; that the contract entered into with her by the appellants was absolute; that their poverty, their loss of revenue, and their consequent inability to keep their road in the repair required by the terms of their charter, (no matter whether that inability be indirectly caused by the act of the State, or be an inability per se,) so far from being an excuse for a failure to comply with the conditions of their charter, is a cogent argument why their corporate rights and franchises should be vacated; that it is immaterial whether their failure be wilful or unintentional, the effect in either case is the same, the conditions of their contract are equally [**59]  broken, the end of the institution is defeated, and the charter must cease to exist. The consequence of the argument, that an inability to keep the road in good order, owing to want of means, relieves the company from the duties imposed upon it by its charter, would be that the State would be obliged to permit the existence of roads impassable and even dangerous. Such, it may safely be asserted, is without support from authority.

In fact, the conclusion would seem to be inevitable, that if (as is conceded) the State can authorize the construction of a railroad any where within her jurisdiction, such authority is absolute, and can impose upon her no restriction, no loss of any other of her sovereign rights and powers, and cannot operate to close the doors of her own Courts against her, when she wishes to inquire into the delinquencies of a corporation created by her, and responsible to her. Angell & Ames on Corporations, sec. 776. People vs. Bristol Turnpike Co., 23 Wend., 236. Charles River Bridge vs. Warren Bridge, 11 Peters, 444.

2nd. Assuming the road not to be in repair, and the excuses set up not sufficient, and their inability, even with the use of all their means,  [**60]  not a good defence to the action, the third and fourth pleas set forth facts going to show a waiver by the State of all causes of forfeiture.

An examination of them will disclose no sufficient ground for presuming a waiver. It is plain that such was not the intention of the Act of 1839, relied on in the third plea-- and even if it were, it would not apply to and cover violations of the charter happening long afterwards. The rule is, that as against the State, no waiver can be presumed, unless a clear intention to waive the forfeiture, with a full knowledge of the facts, can be gathered from the legislation relied on to prove such intention. A simple recognition of the existence of the corporation is wholly insufficient. The Act of 1839 makes no allusion to the condition of the road, but merely directs the Court of Appeals, at its first term thereafter, to hear and determine the then pending appeal between the railroad company and the turnpike company. It is unreasonable to infer that thereby the State designed to disable herself from the inquiry as to whether the turnpike company had or had not complied with the terms of its charter.

Moreover, to maintain that such an act [**61]  is a waiver of any cause of forfeiture happening up to that time, and then to argue that the charter cannot be vacated, because the road is now (as the plea states) in as good order as it was then, is to make the condition of the road at that time, and not the charter, the standard of the obligations of the appellants for all time. Such, of course, cannot be the true measure of their liability. It is to the charter, and the charter alone, that we must look for the character and extent of their rights and duties. Nor would it by any means follow, that because the State did not choose, in 1839, to enforce a forfeiture, she designed to declare that so long as the road was maintained as it then was, the company should be unmolested.

The fourth plea insists that the conduct of the State, up to 1858, amounts to a waiver; that is, that the silence of the State, her failure to authorize proceedings against the company, is to be held equivalent to a declaration that no cause of forfeiture had occurred. This, obviously, does not come up to the terms of the rule we have stated above.

To give to the Act of 1839 the construction contended for by the appellants, would be to invest a collateral [**62]  act, done, it may be, in ignorance of the true condition of the road, with a character which such an act, done by an individual, would not possess, and to hold the silence of the State from 1839 up to 1858, to be a conclusive argument against her present right to revoke franchises, when the conditions are forfeited on which those franchises were granted, would be to make the long continued clemency and forbearance of the State, the means of destroying her rights and restricting her powers. Angell & Ames on Corporations, sec. 777. 6 Iredell, 470, Atty. Gen. vs. Petersburg & Roanoke R. R. Co. 24 Wend., 432, The People vs. Phaenix Bank. 1 Greenleaf on Evidence, sec. 197. 7 Gill, 354, Claubaugh vs. Byerly.

3rd. The hypothecation of the tolls and revenues of the company to certain creditors, is, in the fifth and sixth pleas, asserted to be a bar to the action. These pleas aver that it would be taking private property for public uses, without just compensation, for the State to vacate the charter during the continuance of the contracts with the creditors named therein, and that therefore the action cannot be maintained. On the contrary, it will be contended for the appellee that Messrs.  [**63]  Robinson & Savage must be held to have contracted with the company with a knowledge of the liability of the company to be subjected to such a proceeding as this. It is not a taking of private property for public uses without compensation, for a Court in a proceeding authorized by the State, to adjudge a forfeiture of a charter. Such a term is never applied to the judgment of a Court over a subject matter within its jurisdiction; it is in no sense a judicial act. Besides, it is always in the power of a corporation to prevent such a forfeiture, by acting up to the terms of its charter, and complying with its obligations. The destruction of its franchises is the legitimate fruit of a wilful and persistent or an unintentional failure to answer the ends of its creation; and if such destruction carries with it a loss to any parties who have incurred liabilities for the corporation, or become its creditors, it is a result with reference to which they must be presumed to have contracted, and they cannot complain.

If the existence of such a contract as is averred in the 5th and 6th pleas, can shield a corporation from the consequences of the abuser or non-user of its franchises, all it [**64]  has to do in order to perpetuate itself, and to give itself a license to disregard and set at naught its obligations, is to involve itself in debt, and when called on to answer for its failure to perform its corporate duties, its indebtedness will be received as a conclusive bar to any attempts to vacate its charter. The propriety of the action of the Court below in sustaining the demurrer to these pleas, is fully supported by the decision in Mumma vs. The Potomac Company, 8 Peters, 287.

The seventh plea also furnishes no reason why the charter should not be annulled. The Act of incorporation imposes certain obligations upon the appellants, and does not in any of its sections contemplate releasing them from such obligations, because of their failure to receive tolls sufficient to enable them to meet them. The charter was accepted by the appellants, and no good reason can be assigned why they should enjoy its benefits without bearing its burdens. If they cannot keep the road in repair, they have no right to exact tolls; if it yields no sufficient revenue, if the expenditure of all its tolls is inadequate to maintain the road as the charter required it to be maintained, it surely [**65]  is no hardship to deprive the appellants of that which is only a burthen to them. For these reasons the demurrer to the first seven pleas was properly sustained.

III. The eighth plea was properly stricken out, for the reason assigned in the motion. Cherry vs. Baker, 17 Md. 75. Moreover, limitations will not run against the State. Art. 57, sec. 10, of the Code, relied on by the appellants, does not apply to a case like this. People vs. Bristol Turnpike Co., 23 Wend., 236. Commonwealth vs. Wray, 3 Dallas Penn. Rep., 490.

IV. The demurrer to the additional plea to the jurisdiction, was also properly sustained. The reasons already given under our first point, to show that scire facias is the proper remedy, are sufficient to maintain the correctness of this ruling. It is not a criminal proceeding, but is a civil case, instituted only by the State, and prosecuted as other civil suits are. The Act of Assembly authorizes the action to be begun, and being a civil suit, it is in the city of Baltimore, according to the Constitution, properly brought in the Superior Court. Constitution, Art. iv., secs. 10 and 11. Commonwealth vs. Wray, 3 Dallas Penn. Rep., 490. Commonwealth vs. Comms.  [**66]  of Philad. Co., 1 Sergt. & Rawle, 335. There is nothing in the charter to take away this remedy. The remedy given by the charter is only cumulative. Eastern Archipelago Co. vs. Regina, 22 Eng. Law & Eq. Rep., 342 and 344. People vs. Bristol Turnpike Co., 23 Wend., 244.

As to what is such an abuse of a charter as will justify its being forfeited by the State, see People vs. Kingston & Middletown Turnp. R. Co., 23 Wend., 205; People vs. Bristol Turnpike Co., Id., 236 and 249 to 252.

V. The witness, Wartman, had no such direct, certain and legal interest in the suit or in the record as to render him incompetent. 1 Greenlf. on Ev., secs. 386, 390, 411 and 412. 3 Phil. Ev., 105. Crawford vs. Brooke, 4 Gill, 218. Lancum vs. Lovell, 9 Bing., 465. Forfeiting the charter closes the road, and the land reverts to the original proprietors, their heirs or assigns. Such is the legal effect of the judgment in this case.

VI. Nor was the ruling of the Court in the 2nd exception erroneous. The Act of Assembly did not give the Court jurisdiction; it simply directed the proceeding to be instituted, and having been once instituted, and the case regularly upon trial, the question involved [**67]  was forfeiture vel non, and the Court had a right to inquire into the condition of the road through its entire length and breadth. A franchise is an entirety. There is no reason why the inquiry should be limited to the city of Baltimore. With quite as much reason might it be contended, that where the Baltimore & Ohio Railroad Company was in Court as defendant, it would be incompetent to prove anything occurring on the road beyond the city limits. Moreover, the Legislature never intended that the proceeding should be so restricted, for it authorized the suit to be brought in Anne Arundel county, through which no part of the road passes at all.

VII. The third exception presents the single question of limitations, already disposed of under the motion to strike out.

VIII. The question proposed to be asked of Mr. Rittenhouse, in the fourth exception, was irrelevant and properly disallowed. Its answer could have no bearing whatever upon the issues in the case. 1 Greenlf. on Ev., sec. 449.

IX. The evidence offered in the 5th exception, and rejected by the Court, is simply evidence of the facts recited in the first, second and seventh pleas, admitted to be true by the demurrer,  [**68]  and held to be no bar to the action. Of course the evidence here offered and rejected, was properly rejected, if the ruling of the Court on the demurrers was correct. That such ruling was correct, we have already endeavored to establish.

X. The sixth exception brings up the instruction given by the Court below. It is wholly free from error, for it merely puts to the jury, that if they find from the evidence that the defendants had failed to comply with the terms of the 13th section of their charter, then the plaintiff was entitled to a verdict. It is regular in form and substance, places the facts before the jury for their decision, and submits no question to them which it was not their province to decide.

XI. The motion in arrest was properly overruled. In support of the motion, it is argued that the writ of scire facias is invariably founded upon a record, and inasmuch as there is in this case no record, the action is not well taken. In reply to this, it is only necessary for us to refer to what has been already said under our 1st point. From that it will appear that the form of proceeding instituted is the only one which reaches the case. This view is fully borne out by [**69]  the authorities.

It is further argued, that the only jurisdiction which the Court has over the case, is conferred upon it by the Act of 1860, ch. 326; that this jurisdiction is limited, and must be strictly pursued; and that inasmuch as the terms of the Act only authorize "the State's Attorneys to institute proceedings in the name of the State, to ascertain whether the charter and corporate powers and franchises of said President, Managers and Company ought, by reason of nonuser or abuser of such powers or franchises, to be declared to be vacated and annulled," the duty of the Court is limited to the simple inquiry into that fact; that having done, that the power of the Court is exhausted, and it cannot proceed to enter up a judgment on the verdict; that the object of the proceeding was not intended to be an enforcement of a forfeiture, but merely an inquiry whether any cause of forfeiture existed, leaving the Legislature hereafter to declare what the result shall be.

In reply to this view, it will be contended for the appellee, that the Court below sits in virtue of its common law jurisdiction, to hear and adjudge this case, precisely as it would any other brought before [**70]  it; that the only object of the Act of 1860, ch. 326, was to give the assent of the State to the institution of the proper proceedings, leaving them, of course, to be selected by her law officers, and not to confer a special limited jurisdiction upon the Court; that the power to hear necessarily involves the power to adjudge, and that the jury having found the issue of fact for the appellee, and the Court having decided the issues of law in her favor, it was bound to carry the case to its close, by rendering the judgment of ouster. The intention of the Legislature is, besides, made abundantly manifest by the title of the Act, wherein it is called an Act to authorize "proceedings to forfeit the charter" of the company. The judgment entered up is free from objection, and is similar to that entered up in writs of scire facias to repeal letters patent granted by the Crown in England. Hindmarch on Letters Patent, 8 Library of Law & Equity, 736.

The case is one of importance and interest, and was carefully considered by the Court below. For a long series of years, as the pleadings show, the turnpike has been maintained by the appellants in such a condition as at times to amount to a [**71]  positive nuisance; until at last the State, yielding to the petitions of her citizens, authorized this proceeding to be begun.

The defences are wholly technical, none of them go to the merits, nor does the record contain a particle of testimony to show that the appellants have not utterly failed to comply with their chartered obligations. It is submitted that the rulings of the Court below are wholly free from objection, and the judgment should therefore be affirmed.

G. W. Dobbin, for the appellants, in reply:

The justice of the cause lies entirely with the appellants. Standing on the immutable principles of justice, it is impossible to forfeit this franchise. It being a case of forfeiture, there must be moral and voluntary culpability, and in this view this corporation is conceded to be innocent. The right to incorporate the railroad company is conceded.

Wilful neglect is specified in the Act of 1860 as the cause of the forfeiture, and the proceedings are tied down, and must be tied down to the ascertainment of this fact. The Act does not say that a scire facias must issue, but "proceedings to inquire," not to judge. It means an inquiry at bar, as provided in certain [**72]  contingencies in the Act of 1832, ch. 306. The Act of 1845, relating to the Frederick Female Seminary, prescribes the character of the judgment, and says what it shall be. The Act of 1860 stops short of this, and does not say what the judgment shall be. 9 Gill, 403, dismisses the proceedings, because they were not of the character and in the mode described in the Act of Assembly. Grant on Corp., 318, t. p. in 80 Law Lib. The dictum in the railroad case of C. J. Buchanan, is strictly obiter. It is a mere citation from King vs. Pasmore, a case upon a royal grant. The cases in 23 Wend. do not sustain the position for which they were cited. At page 233 of that authority, it is said that the duty must be designedly omitted, to justify the forfeiture. See, also, 1 Grant on Corp., 295. Erie & N. E. Railroad vs. Casey, 26 Penn. State Rep. 2 Casey, 318.

As to the 4th plea, it is not double. Duplicity is pleading two defences, either of which is a perfect defence to the same cause of action. The admission is the one thing here pleaded, and fifty matters may make up the admission.

The proceeding in this case should have been by criminal information. Cole on Crim. Inform., 56 and 57 [**73]  Law Lib. The proper proceeding for non-repair of a highway, was by indictment. The proceedings should have been in a Criminal Court, and not in a Court of civil jurisdiction. But we do not rely on this point.

The question of limitations is in our favor. 2 Saund., 62 c., note 6.  

JUDGES:
The cause was argued before BOWIE, C. J., and BARTOL and GOLDSBOROUGH, J.  

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*287]  GOLDSBOROUGH, J., delivered the opinion of this Court:
By the Act of 1812, ch. 78, the appellant was incorporated with authority to make a turnpike road from the District of Columbia to the city of Baltimore. By the 16th section of the Act, the company was authorized to charge the tolls specified therein, as a compensation for their expenditure in establishing the road.
It cannot be doubted that the Legislature, in making this grant, sought to promote the public convenience by the increased facility of travel incident to such an improvement; and the company, in accepting the grant, obliged itself to establish the road to effect this object, and keep the same in repair, in accordance with the requirements of the 13th section of the Act of incorporation.
True it is, that by the 26th section,  [**74]  provision is made for the punishment of the company and its agents, if it shall neglect to keep the road in good and perfect repair; yet it is manifest that this provision was intended to apply only to temporary neglect, and cannot be held to deprive the State of its sovereign power to annul a grant, when the purposes of it have failed through the positive or negative act of the party upon which the grant was bestowed, and when by a proper, legal proceeding, the Court having jurisdiction shall determine, upon evidence, the issue for the State. In 23 Wendell's R., 244, the Supreme Court of New York said: "But it is a rule of almost universal application, that if a statute fixing a penalty for an offence, do not either expressly or by necessary implication, cut off the common law prosecution or punishment for the same offence, it shall be taken to intend merely a cumulative remedy."
It was contended by the appellant, that the Legislature, in bestowing the power granted in the 31st section of the Act, could not, through any tribunal, impair a demise made in view of the grant. This proposition is clearly 

 [*288]  erroneous. In 8 Peters 287, it is laid [**75]  down, that "a corporation, by the very terms and nature of its political existence, is subject to dissolution by a surrender of its corporate franchises, and by a forfeiture of them for wilful mis-user and non-user. Every creditor must be presumed to understand the nature and incidents of such a body politic, and to contract with reference to them. And it would be a doctrine new in the law, that the existence of a private contract of the corporation should force upon it a perpetuity of existence contrary to public policy, and the nature and objects of its charter."
We have confined ourselves thus far to the consideration of the privileges, immunities and liabilities of the appellant under the Act of 1812.
The company continued to enjoy these privileges and immunities, undisturbed, until the institution of the suit in this case, under the provisions of the Act of 1860, ch. 326.
By this Act, the State's Attorneys therein named were directed to institute proceedings in the name of the State against the appellant, to ascertain whether its charter and corporate powers and franchises ought, by reason of nonuser or abuser of those powers and franchises, to be declared vacated and annulled. [**76]  To carry into effect this Act, a writ of scire facias was issued out of the Superior Court of Baltimore city, in the name of the State as plaintiff, against the appellant as defendant.
To this writ the appellant appeared and pleaded the nine pleas mentioned in the record. The appellee demurred to the first seven pleas, moved the Court that the eighth be stricken from the record, because it was not filed within the time required by the rules of Court, and joined issue on the ninth.
The Court sustained the demurrer, and granted the plaintiff's application to strike out the 8th plea. The defendant then filed a plea to the jurisdiction of the Court, 

 [*289]  alleging in its plea that the action instituted was a criminal information, and should have been instituted in the Criminal Court of Baltimore city. To this plea the plaintiff also demurred, and the Court sustained the demurrer.
At the trial of the cause, upon the ninth plea of not guilty, the defendant took six exceptions to the ruling of the Court. The first, to the admissibility of the evidence of Michael Waterman. The second, to the proposal of the plaintiff to offer evidence to show a want of repair of the defendant's [**77]  road, in parts thereof lying outside of the limits of the city of Baltimore. The third, to the admissibility of evidence of a want of repair of defendant's road, existing more than a year before the commencement of this suit. The fourth, to the refusal of the Court to allow the defendant to ask the witness, Rittenhouse, the questions stated in this exception. The fifth, to the refusal of the Court to allow the defendant to offer the evidence mentioned in this exception, to rebut the evidence offered by the plaintiff to maintain the issue on her part. And the sixth, to the plaintiff's prayer granted by the Court.
Upon the rendition of the verdict by the jury, the defendant moved in arrest of judgment; which motion the Court overruled, and entered judgment for the plaintiff, as stated in the record, including costs.
As to the plaintiff's demurrers, we deem it proper to say, that to the proposition of law stated by the appellant, that a general demurrer to a plea confesses all the facts in the plea, must be added the qualification that they be well pleaded. 7 H. & J., 372. 2 H. & G., 143. Upon a general demurrer, the Court will render judgment against the party [**78]  which commits the first error in pleading.  1 H. & G., 471. 10 G. & J. 27. And as the demurrers, according to the well established rule, carry us up to the first fault, we must resort in this case to the scire facias, to see if there be a sufficient cause of action stated to entitle the 

 [*290]  appellee to recover. If so, our attention is next directed to the pleas, and we are to determine whether any or all of them are sufficient in law to entitle the appellant to judgment thereon.
In reference to the motion in arrest, we find that in the case of Charlotte Hall School vs. Greenwell, 4 G. & J. 407, the Court said: "The motion in arrest of judgment serving, in some measure, the office of a demurrer, we must consider that the whole record was brought to the view of the Court. The motion in arrest of judgment must be governed by the principles of a demurrer."
The plaintiff, relying on its demurrers to the defendant's pleas, and the defendant on its pleas and motion in arrest, so far as the pleadings are concerned, has induced us to set out the above ingredients of a general demurrer and motion in arrest, that we may correctly [**79]  dispose of this case, so far as it is affected by these proceedings.
Does the scire facias in this case, being in the nature of an original action, set out a substantial cause of action, and with such certainty that the defendant is fully informed of the grounds on which the plaintiff seeks to recover? Our opinion is, that it does. The scire facias sets forth the obligation of the defendant under the Act of incorporation, and expressly charges a violation of this obligation, and the mode and manner in which it was violated; and, in the language of the Act, seeks to ascertain whether the charter and corporate powers and franchises of the defendant ought not, by reason of non-user and abuser of said powers and franchises, to be declared vacated and annulled. The writ fully discloses the plaintiff's cause of complaint, and affords the defendant the opportunity of defense, of which it has availed itself fully in its several pleas.
We shall next consider whether the writ of scire facias was the appropriate remedy to obtain the object intended by the Act of 1860, ch. 326. Of this, we think there can 

 [*291]  be no doubt. In the case of The Canal Co. vs. The Rail Road Co., 4 G. & J. 121, 122; [**80]  in the case of the Regents of the University vs. Williams, 9 G. & J. 365; and in Angell & Ames on Corporations, 743, 3rd American Edition; scire facias was held the appropriate remedy in a case like this. But it was contended by the appellant, that as the Act of 1860 prescribed no form of proceeding, and the Act of 1832, ch. 306, which did prescribe the proceeding by scire facias, was repealed by the Code, the Superior Court, if it could entertain jurisdiction, was restricted to the ascertainment, "whether the charter and corporate powers and franchises of the President, Managers and Company ought, by reason of non-user or abuser of such powers and franchises, to be declared to be vacated and annulled," without power to enter judgment upon the ascertainment.
The answer to this is, not only that the appellant prays judgment in every plea, if sufficient to bar the plaintiff's action, but it could not be deprived of its charter, except upon full hearing and judicial judgment of forfeiture. The theory of the appellant would render the Act of 1860 nugatory. And if the Legislature passed a law predicated upon the ascertainment, declaring the charter [**81]  of the appellant annulled and forfeited, it might be exercising judicial functions contrary to the Constitution and Bill of Rights, about which, however, we need express no opinion. The Act of 1832, though prescribing the mode of proceeding by scire facias, created no new remedy, but was merely declaratory of the law as it then was, and its repeal by the Code, took no jurisdiction from the Courts of Common Law, but left that jurisdiction undisturbed.
Testing the appellant's pleas by the rule, that the facts set out in them must be well pleaded, we do not find that those in the first and second pleas offer a legal defence to the allegations charged in the appellee's writ of scire facias, if those allegations are sustained by competent evidence 

 [*292]  to justify the jury in finding for the plaintiff on the issue of not guilty. The State, through its legislative department, may have impaired the value of the franchise of the appellant by the Acts mentioned in those pleas, yet it was damnum absque injuria. It was a misfortune. See Baltimore & Ohio R. R. Co. vs. Washington & Baltimore Turnpike Road, 10 G. & J. 392. Charles River Bridge vs. Warren Bridge, 11 Peters 420. [**82]  The Acts of the Legislature by no means released the appellant from the fulfilment of its obligation under its charter. It was still enjoying the privilege of charging tolls upon its road, and was bound to render a full equivalent to the community to justify the charge.
As to the allegation in the scire facias, that the appellant failed to keep the bridges over the streams crossing the turnpike road in good order and repair, it is no sufficient answer to say, that the 13th section of the Act of 1812, giving power to erect bridges, was permissive only, and not mandatory. If the bridges were an essential part of the road, and the road was impassable without them, it was a part of appellant's duty, having erected them, to keep them in repair. See 23 Wendell's Rep., 259.
As to the third and fourth pleas, and the facts therein stated, it may be true that the Act referred to was passed, recognizing the corporate existence of the appellant, and admitting that the road was then maintained and kept in sufficiently good order and repair, and that during the whole of the year next preceding the commencement of this suit, it was kept in as good order and repair as it was when the [**83]  Act of 1839 was passed; or, as in the fourth plea, that the State, by the Acts of the Legislature, and the conduct of its officers, admitted that until 1858, the turnpike road was kept in sufficiently good order, and while in that condition, was enabled to make the agreement stated in this plea, and in consequence of this agreement and sale 

 [*293]  of stock, the road was put in better order during the year next preceding the commencement of this suit than it was at the time of the agreement to purchase. Yet it cannot be successfully contended that the State, though tacitly waiving, during the time above stated in these pleas, the enquiry into the condition of the road, deprived itself of the right to ascertain whether the appellant had been guilty of non-user or abuser of its franchises, and to direct that ascertainment to be made in view of the requirements of the Act of incorporation, which was the true and only standard of the appellant's responsibility.
Notwithstanding the Act of 1833, mentioned in the fifth plea, and the privilege to charge tolls on steam carriages, the resolution of the company to contract for the loan of money upon the security of the tolls, and though [**84]  the appellant may have applied all the tolls (as stated in the seventh plea) to the repair of the road, yet the conclusion arrived at by this Court, in reference to the third and fourth pleas, is equally applicable to the fifth and seventh; and as to the sixth, our opinion of that may be found in our review of the rights of the appellant under the 31st section of the Act of 1812.
We are of opinion that the action of the Superior Court was right in striking out the eighth plea, if it was not filed within the time prescribed by the rule of Court, and we must presume that the Court acted in conformity with its own rule, in the absence of the rule from this record. See Cherry vs. Baker, 17 Md. 75.
Whatever might be said of the conduct of the appellant, in delaying to file the tenth plea until the decision of the Court upon the demurrers and plea of limitations, we are at liberty to presume, that as the appellant joined issue on the demurrers, it took the chance of a judgment in its favor on some one or all of them, and we doubt not, if the Court had so decided, no exception would have been urged 

 [*294]  as to its jurisdiction. But apart from this, in our opinion,  [**85]  the proceeding under the scire facias, in all its stages, in this case, is essentially a civil action, and within the cognizance of the Superior Court, that Court having civil common law jurisdiction, under the Constitution of the State.
We proceed to consider the appellant's several exceptions:
As to the first exception, the rule is, where evidence is offered to the Court, who are to determine whether the witness is interested, if it appear to the Court that he is not, though he thinks himself interested, he shall be sworn. See 6 H. & J. 172. In view of this rule, we think that Wartman was a competent witness.
The proposal to offer evidence to the jury, as mentioned in the second exception, could not be objected to by the appellant on the ground stated in this exception; because the road was an unit, and the evidence should be co-extensive with the limits of it, as established by the Act granting the charter.
The third exception presents the question of limitation, and involves the construction of the 10th section of the 57th Article of the Code.
Conceding that a defence under that provision of the Code may be availed of under the general issue, without being specially [**86]  pleaded, but without so deciding, still we are of opinion that the provision of the Code referred to, does not apply to a proceeding like this. Although the result of a decision on the scire facias, against the defendant, will involve a forfeiture of its franchise, yet it cannot be said that this is a suit for a fine or forfeiture, within the meaning of this section of the Code. A reference to the original Act of 1777, ch. 6, containing the same provisions as that found in the Code, will show the meaning of the 

 [*295]  Code, and that the appellee was not confined to evidence of want of repair within the year.
The refusal of the Court to allow the appellant to ask the questions of the witness, Rittenhouse, stated in the fourth exception, was correct. The contemplated speculations of the witness, in the event of the condemnation of the road, were wholly irrelevant to the issue before the jury.
The appellee having offered evidence tending to show the wilful neglect of the appellant in keeping its road in repair, the appellant sought to rebut this evidence with the evidence stated in the fifth exception. Upon the objection of the appellee to this evidence, the Court sustained [**87]  the objection, and we think correctly. All the facts relied on by the appellant, in this exception, might tend to prove an inability to keep the road in repair, and yet its responsibility was not removed by such inability. The objection made by the appellant to the charge of wilful neglect, in our opinion, is misconceived. The term does not, in this case, imply criminality, but must be construed to mean permissive, voluntary neglect.
We see no objection to the ruling of the Court in granting the appellee's prayer mentioned in the sixth exception. The prayer submits to the jury to find whether the appellant had failed and neglected to maintain and keep its road, or parts thereof, and the bridges over the streams crossing the road, also in good order and repair, and whether the same were maintained in the manner prescribed by the Act of 1812, ch. 326, and incorporates into the prayer the very requirements of the Act as the subject of enquiry for the jury. We therefore sustain the ruling of the Superior Court upon all the exceptions taken by the appellant.
Having approved of the action of the Court upon the demurrers, in which we regarded the applicability of the scire facias [**88]  to this case, and also the sufficiency of the allegations 

 [*296]  set out in the writ, we deem it unnecessary to say anything in reference to the motion in arrest of judgment.
The judgment must be affirmed.
Judgment affirmed. 

2 of 196 DOCUMENTS 

LUDOLPH W. GUNTHER and HENRY A. RODEWALD, vs. RICHARD H. ATWELL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

19 Md. 157; 1862 Md. LEXIS 65 

December 5, 1862, Decided 

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

This was an action brought by the appellee against the appellants, at the January term, 1859, of the Court of Common Pleas of Baltimore city, to recover damages alleged to have been sustained by him, in consequence of a want of correspondence, in point of quality, between two casks of tobacco purchased by him from the appellants, and two casks of tobacco as described in the bill of parcels rendered by the appellants and the samples exhibited by them to the appellee, at the time of the sale. The declaration alleges, "that the defendants, by then and there representing said tobacco to be 'heavy Clarksville tobacco,' and of the quality corresponding with the sample, which they then and there exhibited to the plaintiff, sold and delivered said tobacco," &c., "whereas, in truth and in fact, said tobacco was not of the quality represented by the defendants, and did not correspond with the sample exhibited." The pleas were: 1st, that the defendants "did not represent as alleged;" and 2nd, that they "were not indebted as alleged."

1st Exception.--The plaintiff offered in evidence a bill of parcels rendered to him by the defendants,  [**2]  in which the tobacco sold by them to the plaintiff is described as "heavy Clarksville tobacco," and the numbers and weight of the hogsheads given, as derived from the inspection, by one of the State tobacco inspectors at Baltimore, and proved, by a competent witness, that the numbers upon said hogsheads corresponded with those mentioned in the bill of lading under which the tobacco was shipped to Liberia, consigned to B. W. Leary; that the samples of the said hogsheads were good tobacco, that the numbers thereon corresponded with those in the bill of parcels, and that the price charged in the bill of parcels was the price of good tobacco at that time.

The plaintiff further proved, by the consignee, that he received the two hogsheads of tobacco mentioned in the bill of lading, and also the samples, on the coast of Africa, and compared them; that he examined carefully the hogsheads, as well as their contents, and that their numbers and marks corresponded with those given in the bill of parcels; that the samples were fair Kentucky tobacco; and if the tobacco in the hogsheads had corresponded with the samples, he could have sold the entire lot at thirty-three cents per pound, whereas,  [**3]  from its inferior quality, he could only sell a portion of it, in lots, at an average of fourteen cents per pound; that five hundred pounds were entirely unsaleable; that the whole of it was of different qualities, some of it being stems and scrapings, or trash; and that it was generally of a very inferior quality, and very little of it equal to the samples.

The defendants then proved, by one of the State tobacco inspectors, that two hogsheads of tobacco, numbered as in the bill of parcels, were inspected at his warehouse in the month of April 1858, and duly passed inspection, and that he would have "stayed" them, if they had contained the sort of tobacco proved by the witness, Leary, to have been found in the tobacco consigned to him. The same witness stated, on cross-examination, that the marks and numbers on the hogsheads of tobacco, and in the bill of parcels, showed that from the 1st of January of that year, to the date of the inspection of said two hogsheads, upwards of 4500 hogsheads of tobacco had been inspected at the warehouse in which the witness was inspector; that it was possible for a hogshead containing some trash to pass inspection, but that the two hogsheads so [**4]  inspected by him were Kentucky tobacco, which is generally clean.

The defendants also proved, by Henry Ahrens, that according to the universal usage of tobacco dealers in the city of Baltimore, sales of tobacco are effected by the vendor exhibiting to the purchaser the warehouse samples prepared by the State inspector. The defendants then offered to prove, by the same witness, that according to the usage and understanding of merchants in the tobacco trade in the city of Baltimore, the purchaser does not look to the seller to insure a correspondence between the quality of the tobacco in the sample and that in the hogshead, but relies exclusively upon the sample and the fidelity of the inspector in its preparation. To this offer the plaintiff objected, on the ground that the evidence so offered was inadmissible, which objection was sustained by the Court, and the defendants excepted.

2nd Exception.--The defendants then offered the following prayer: "That if the jury should believe, from the evidence, that the defendants sold the tobacco in question to the plaintiff, and, in so selling, practiced no concealment or fraud, and made no false representation regarding the quality [**5]  and condition of the said tobacco, and shall further find, from the evidence, that the defendants exhibited to the plaintiff, at the time of said sale, warehouse samples of the said tobacco, prepared and furnished by the State inspector of tobacco, and that it was, at the time of the said sale by the defendants to the plaintiff, the general usage of dealers in tobacco in the city of Baltimore, to sell tobacco by exhibiting warehouse samples of the same prepared and furnished by the State inspector of tobacco, then the plaintiff is not entitled to recover on account of any want of correspondence between the quality of the tobacco in the samples and that in the hogsheads, nor on account of any scrapings or dirt intermixed with the tobacco in the hogsheads." This prayer the Court rejected, and the defendants excepted.

3rd Exception.--The defendants also offered the following prayer: "That if the jury believe from the evidence, that the bill of parcels offered in proof by the plaintiff, was signed by the defendants and accepted by the plaintiff, that then the said bill of parcels is the only evidence of the contract between the parties, and the plaintiff is not entitled to recover [**6]  on account of any defect in the quality of the tobacco purchased by him from the defendants, or on account of any want of correspondence between it and the samples, or on account of any scrapings or trash which may have been intermixed with said tobacco at the time of the sale; if they believe the said sale was made fairly and bona fide." This prayer the Court also rejected, and the defendants excepted.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

Strictly speaking, a contract of sale by sample, is not a warranty of quality, but an agreement of the seller to deliver, and of the buyer to accept, goods of the same kind and quality as the sample. The identity of the goods sold, in kind, condition and quality, with that of the sample, is of the essence of the contract, and where the goods sold do not correspond with the sample, there would seem to be no performance of the contract.

The rule recognized as governing sales by sample, seems to be founded on, or to be, a simple application of the principle that to fulfil a contract of sale, the seller must deliver that which he has agreed to sell, and that if he does not, the purchaser may rescind the contract, or receive the goods, and claim a deduction for their relative inferiority in value.

To apply the foregoing principle, it is necessary, in making the sale, that the sample should be so used between the buyer and seller as to express or become part of the contract; or, in other words, that the exhibition of the sample should amount to, and take the place of, an express averment by the seller of the condition and quality of the goods sold, upon which the buyer relies in making the purchase.

The mere exhibition of a sample by the seller, and examination of it by the buyer, does not amount to such an averment, unless, from all the facts or circumstances of the case, it can be presumed that an understanding has been arrived at between the parties, that the bulk is to correspond with the sample.

A sale by sample would only seem to imply, on the part of the seller, a warranty for correspondence in condition and quality, where the buyer knows, or is justified in assuming, that the seller, or some one acting for him, or for whose act, in that respect, the seller could be held responsible, had exercised a discretion in selecting the sample.

Where samples are prepared by a State tobacco inspector, his agency in performing that duty is as much in behalf of the buyer as the seller, and neither buyer or seller has cause of complaint, or right of redress, either against the other, for any mistake as to condition or quality of the goods sold, if with mutual knowledge and good faith they buy and sell upon the credit of the samples so obtained.

The obligation to be presumed from a bill of parcels designating merchandize sold as of a particular kind, is that the seller shall deliver goods of the kind mentioned, but, ordinarily, imposes on him no obligation as to the quality.

In an action for damages alleged to have resulted from the non-correspondence of two hogsheads of tobacco sold by sample, with the samples by which it was sold, the defendant offered to prove "that according to the usage and understanding of merchants in the tobacco trade in the city of Baltimore, the purchaser does not look to the seller to insure a correspondence between the quality of the tobacco in the sample and that in the hogsheads, but relies exclusively upon the sample, and the fidelity of the inspector in its preparation." HELD: that such evidence is admissible, though the circumstances of the case may render it of no effect.  

COUNSEL:
William Schley and George C. Maund, for the appellants:

In support of the first prayer, the appellants will contend--

1st. That upon a sale of goods by the mere exhibition of samples, when the purchaser has the opportunity of inspecting the goods for himself the law does not imply a warranty on the part of the vendor, that the goods in bulk shall correspond in quality and condition with the sample. As yet there has been no adjudication by this Court of the question of warranty upon sales by sample, but the spirit of its decisions has been against the "modern innovation" of implied warranties, and in favor of the common law rule, "that in sales of personal property, the seller is not answerable for any defects in the quality or condition of the article [**7]  sold, without an express warranty or fraud." Johnson vs. Cope, 3 H. & J., 89. Hyatt vs. Boyle, 5 G. & J., 118. Taymon vs. Mitchell, 1 Md. Ch. Dec., 499. Osgood vs. Lewis, 2 H. & G., 495. For an able vindication of the common law rule against the modern spirit of innovation, see McFarland vs. Newman, 9 Watts R., 56; Borrekins vs. Bevan, 3 Rawle, 44; 2 Kent's Com., 480, marg. note (a.) The latest decision of this Court, upon questions of implied warranties, (Hyatt vs. Boyle,) when cited by other Courts, is cited as vindicating the strict common law rule. Barnett vs. Stanton, et al., 2 Ala., 185.

The doctrine denied by our first proposition, was supposed to have been fully established in the State of New York, but, in its progress, it encountered determined opposition from the judges, who preferred the common law rule. If the doctrine has ever been adopted by the Courts of any other of the United States, it will be found that they rest the rule either upon the New York decisions, or confessedly derive it from the civil law. But in New York, where the doctrine was established for the first time in this country, it has been since exploded. Waring vs. Mason, 18 Wend., 434, and also [**8]  441 and 447. Moses vs. Mead, 1 Denio, 385. Hargous vs. Stone, 1 Selden, 75. Berine vs. Dord, 1 Selden, 95. Berine vs. Dord, 4 Duer, 72. In Massachusetts and Pennsylvania, the rule is, that a sale by sample implies a warranty, not of correspondence in quality and condition, but that the article in bulk is the same in kind as the sample. Bradford vs. Manly, 13 Mass., 139. Henshaw vs. Robins, 9 Metcalf, 86. Hastings vs. Lovering, 2 Pick., 219. Fraly vs. Bispham, 10 Barr., 320.

2nd. That even if a sale by the exhibition of samples, be, as a general rule, an implied warranty of a correspondence in quality and condition, between the sample and the article sold, yet when the sale (as in this case) is made by the exhibition of samples selected by a State tobacco inspector, the rule does not apply. The Acts of Assembly regulating the inspection of tobacco, revived by the Act of 1852, ch. 360, are: 1801, ch. 63; 1804, ch. 85; 1820, ch. 188; 1821, ch. 194; 1822, ch. 172; 1823, ch. 165; 1828, ch. 164; 1829, ch. 223; 1833, ch. 228; 1834, ch. 198; 1835, ch. 123; 1836, ch. 191. As the most important, the following are particularly referred to: 1801, ch. 63, secs. 6, 7, 13, 18, 19, 21, 22, 26 [**9]  and 27; 1823, ch. 165; 1821, ch. 194, (relating to samples;) 1819, ch. 95.

These laws elaborate a system of inspection, the chief design of which is to protect the reputation of our tobacco market, and to secure the purchaser, foreign and domestic, against all deception and risk as to the quality of the tobacco purchased by him, and its freedom from trash. This security is furnished by the inspector's oath of fidelity in inspecting the bulk and drawing the samples, his bond, and the liability to which he is subjected by the Act of 1801, ch. 63, secs. 21 and 22, and the penalties imposed for altering his marks, or forging his manifests or notes, secs. 10 and 26.

If the doctrine denied by our first proposition be law, it is insisted, upon the foregoing authorities, that it is not a doctrine which ought to be extended. There is no authority which sanctions the application of the doctrine to a sale by such samples as those in this case, nor can the principle on which the doctrine rests apply to such sale. That principle is, that the exhibition of a sample at the time of sale, is a symbolic affirmation, or representation, which amounts (as we say, in contravention of the sound [**10]  rule of the common law) to a warranty. But when the samples exhibited to the purchaser are visibly those of a State inspector, it is insisted that the affirmation involved in the mere act of exhibiting the samples, cannot be more than this: "These are the samples selected by a State tobacco inspector." The warranty, therefore, if there be one, cannot be more extensive than the affirmation involved in the act.

3rd. That the 2nd prayer of the appellants correctly propounds the law of this State. Osgood vs. Lewis, 2 H. & G., 522. Batturs vs. Sellers, 6 H. & J., 251. Hyatt vs. Boyle, 5 G. & J., 118. Gardiner vs. Gray, 4 Campbell R., 143. Myer vs. Everth, Ibid., 22. Reed vs. Wood, 9 Vt. R., 287. Yates vs. Pym, 6 Taunt., 446. Ch. on Cont., 400. The bill of parcels offered in evidence describes the tobacco sold by the appellants to the appellee, as "2 hhds. heavy Clarksville tobacco." It is clear, upon the foregoing authorities, that the only warranty by the appellants was, that the article sold should answer the description in the bill of parcels, and it is not pretended that it was other than "heavy Clarksville tobacco."

4th. That the evidence in the first bill of exceptions was [**11]  improperly rejected. It is difficult to perceive the ground of the objection to the proof of the usage in this case. The definition given us by Judge Story, of the true and appropriate office of an usage or custom, seems exactly to embrace this case. Schooner Reeside, 2 Sumn. R., 569. It may, indeed, be urged, that proof of usage is inadmissible to contradict a settled doctrine of law. Edie, et al., vs. The East Ind. Co., 2 Bur., 1222 and 1224. Frith vs. Barker, 2 Johns. R., 334. Brown vs. Jackson, 2 Wash. C. C. R., 25. But, in this case, the usage should be received, because the law is unsettled, in order (in the language of Story) "to interpret the otherwise indeterminate intentions of the parties." The weight of authority is against the doctrine, that usage cannot be proved to contradict a settled principle of law. 2 Phil. Ev., 730, (Cowen, Hill & Edwards' notes.) Middleton vs. Heyward, 2 N. & McC. R., 9. Heyward vs. Middleton, 3 McC. R., 121. Snowden vs. Warder, 3 Rawle, 101. Gordon vs. Little, 8 Serg. & Rawle, 550 and 554. The appellants' counsel also cited Budd vs. Fairmaner, 21 Eng. C. L. Rep., 217. Ormrod vs. Huth, 14 Mees. & Wels., 651. Baird & Co. vs. Matthews, 6 Dana, 131.  [**12]  Clintsman vs. Northrop, 8 Cowen, 46.

Brown & Brune and Louis C. Fischer, for the appellee, argued:

I. That the Court properly ruled that the evidence proposed to be given by the appellants, through the witness, Ahrens, and objected to by the appellee, was inadmissible. Eddie vs. East India Co., 2 Bur., 1218, 1220. Hibbert vs. Shee, 1 Camp., 113. Oelrichs vs. Ford, 23 Howd., 61, 64. Schooner Reeside, 2 Sumn., 569. Foley & Woodside, vs. Mason, 6 Md. 49, 50. Frith vs. Barker, 2 Johns. Rep., 335. Thompson vs. Ashton, 14 Johns. Rep., 317. Sewell vs. Gibbs, 1 Hall, 602. Homer vs. Dorr, 10 Mass., 28. Eager vs. Atlas Ins. Co., 14 Pick., 143, 144, 145, 146. Perkins vs. Franklin Bank, 21 Pick., 485. Cox vs. Heisley, 19 Penn. R., 245. Wetherill vs. Neilson, 20 Penn. R., 448. Beckwith vs. Farnum, 5 R. I., 239. Petty vs. Gayle, 25 Ala., 472. Barlow vs. Lambert, 28 Ala., 708. 3 Kent, 326. Clintsman vs. Northrop, 8 Cowen, 46.

II. That the appellants' first prayer was properly refused:

1st. Because the sale by the warehouse samples, furnished by the State inspector, of the tobacco sold by the appellants to the appellee, was a warranty by the appellants that the tobacco and [**13]  the samples should correspond in quality. Hibbert vs. Shee, 1 Camp., 113. Bradford vs. Manly, 13 Mass., 142, 144. Williams vs. Spafford, 8 Pick., 250. Oneida Man. Co., vs. Lawrence, 4 Cowen, 444. Gallagher vs. Waring, 9 Wend., 26. Beebee vs. Robert, 12 Wend., 418.

2nd. Because the said prayer entirely disregards the warranty in the bill of parcels, that the tobacco sold was "heavy Clarksville tobacco," and if a sale by inspection samples alone, should be held not to warrant the quality, this certainly should not relieve the appellants from the duty of proving that the tobacco sold was "heavy Clarksville tobacco," and not scrapings or dirt, and particularly as the bill of parcels representing the goods sold to be of that description of tobacco, was given in evidence by the appellee without objection, and was relied on by the appellants, in their second prayer, as the only evidence of the contract. Leopard vs. Ches. & Ohio Canal Co., 1 Gill, 229. Stockton vs. Frey, 4 Gill, 421. State vs. Milburn, 9 Gill, 102. Osgood vs. Lewis, 2 H. & G., 522, 527.

III. The appellee will contend that the second prayer was properly refused, because:

1st. The bill of parcels given in evidence,  [**14]  was not the only evidence of the contract. The exhibition of the samples was also an important part of the contract, whether their exhibition constituted a warranty of quality under the general rule of law, or showed that the purchaser relied only on the fidelity of the inspector, by reason of a usage or rule of law applicable to this particular kind of sample. It is also to be noticed that there is no repugnancy between the representations of quality afforded by the bill of parcels and the samples, the former warrants the tobacco to be "heavy Clarksville tobacco," and the samples were proved to have been Kentucky tobacco, of a good or fair quality. Osgood vs. Lewis, 2 H. & G., 522, 524, 525, 526, 527. Hyatt vs. Boyle, 5 G. & J., 118. Harris vs. Johnston, 3 Cranch, 312, 318. Bradford vs. Manly, 13 Mass., 142. Hazard vs. Loring, 10 Cush., 267, 268.

2nd. Because the second prayer not only asserts that the bill of parcels is the only evidence of the contract, and that it does not contain a warranty that the tobacco should correspond with the representations in itself, but also declares that by reason of the bill of parcels, the appellants are exempted from liability for any defect [**15]  in the quality of the tobacco, or for any want of correspondence between its quality and that of the samples, as well as from all liability for or on account of any scrapings or trash intermixed with the tobacco. Osgood vs. Lewis, 2 H. & G., 522. Hyatt vs. Boyle, 5 G. & J., 119. Hastings vs. Lovering, 2 Pick., 219. Henshaw vs. Robins, 9 Met., 83 to 88.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
COCHRAN 

OPINION:

 [*167]  COCHRAN, J., delivered the opinion of this Court:
This is an appeal from a judgment obtained by the appellee, in a suit to recover damages resulting to him from the non-correspondence of two hogsheads of tobacco with samples by which he had purchased it from the appellants. At the trial below, the appellants reserved three exceptions, presenting the following questions: 1st, whether evidence showing a custom of tobacco dealers in Baltimore, of buying and selling tobacco in bulk, by samples prepared by the State inspectors, without insuring correspondence in quality, was admissible; 2nd, whether, in a sale of tobacco by a sample drawn by the State inspector, there is, in law, a warranty that the quality in bulk corresponds with the sample;  [**16]  and 3rd, whether, in the sale made, the bill of parcels designating the kind of tobacco sold as "heavy Clarksville tobacco," amounts to a warranty of the quality.
As the proposition presented by the 1st exception depends somewhat upon that involved in the 2nd, we shall, in our consideration of them, reverse the order in which they are stated. The determination of the question presented by the 2nd exception, upon the authority of adjudicated cases, is somewhat difficult. The doctrine that a warranty of quality is implied, in a sale by sample, is not favored by the common law, and, at most, has a drifting and uncertain character. Strictly speaking, a contract of sale by sample, is not a warranty of quality, but an agreement of the seller to deliver, and of the buyer to accept, 

 [*168]  goods of the same kind and quality as the sample. The identity of the goods sold in kind, condition and quality, with that of the sample is of the essence of the contract; and where the goods sold do not correspond with the sample, there would seem to be no performance of the contract. Young vs. Cole, 3 Bing. N. C. 724. Mondel vs. Steele, 8 M. & W., 858, 871. [**17]  8 Pick., 250. 13 Mass. 139. Berine vs. Dord, 1 Seld. 93. Hargous vs. Stone, Ib., 73. Waring vs. Mason, 18 Wend. 425. 1 Smith's L. Cases, 5th A. Ed., 256, 257, 258. The rule recognized in these cases, as governing sales by sample, seems to be founded on, or to be a simple application of the principle, that to fulfil a contract of sale, the seller must deliver that which he has agreed to sell, and that if he does not, the purchaser may rescind the contract, or receive the goods and claim a deduction for their relative inferiority in value. In order that this principle may be applied, it is necessary, in making the sale, that the sample should be so used between the buyer and seller, as to express or become a part of the contract; or, in other words, that the sample should amount to, and take the place of, an express averment by the seller of the condition and quality of the goods sold, upon which the buyer relies in making the purchase. The mere exhibition of a sample by the seller, and examination of it by the buyer, does not amount to such an averment, unless, from all the facts or circumstances [**18]  in the case, it can be presumed that an understanding is arrived at between the parties, that the bulk is to correspond with the sample. 1 Seld. 73, 93. 18 Wend. 425, 434. The reasonable deduction from these cases is, that to effect a sale by sample, so as to bind the seller for a correspondence in bulk, it must be shown that the seller adopts the sample as his own description of the bulk, and that the buyer concludes the purchase upon the faith and credit of the description so given. Upon this theory, it is obvious that in making 

 [*169]  sales, samples may be exhibited and examined without implying, as a part of the contract of sale, any obligation that the bulk shall correspond with the sample.
In cases where both buyer and seller deal with a specific article or lot of merchandize by sample, and the buyer knows, or from the usage of the trade, or circumstances in the case, is authorized to presume that the seller has no knowledge of the bulk, other than that afforded by an inspection of the sample, an obligation for a correspondence of the bulk, could not reasonably be implied as a part of the contract, for the buyer could not, in such a case,  [**19]  assume the exhibition or use of the sample to be a representation of quality by the seller. The fact that the seller's ignorance of the quality of the bulk is known to the buyer, is sufficient to put him on his guard, and enable him to protect himself by an actual inspection of the bulk, if that be possible, or by an express stipulation. With a knowledge of the bulk equal to that of the seller, there would seem to be but little or no reason for permitting the buyer to hold the seller, whom he knows to be ignorant of the actual quality and condition of the bulk, as contracting by implication for a correspondence of it with the sample. Strictly speaking, a sale by sample would seem to imply an obligation on the part of the seller for correspondence in condition and quality, only when the buyer knows, or is justified in assuming that the seller, or some one acting for him, or for whose act, in that respect, the seller could be held responsible, has exercised a discretion in selecting the sample. In cases where the sample is drawn and prepared, without the exercise of such a discretion, in a mode prescribed by law, the reason against the implication of an obligation for a correspondence [**20]  of the bulk with the sample is still stronger, for both buyer and seller are presumed to have a knowledge of the mode of drawing the 

 [*170]  sample, and of the fact that from the mode of drawing, it may not truly represent the condition and quality of the bulk.
The samples of the tobacco sold in this case, were drawn and prepared by a State inspector, in the mode prescribed by the statutes regulating tobacco inspections, and although the appellants are not shown to have had other knowledge of the tobacco than that derived from the samples, the custom of dealers in buying and selling by such samples was clearly proved. Upon this statement of facts, we must presume that the appellants had no knowledge of the true quality of the tobacco at the time it was sold, and that they, as did the appellee, dealt with the bulk upon the credit of the samples alone. The samples were prepared by the State inspector, and his agency, in performing that duty, was as much in behalf of the buyer as the seller; and neither buyer nor seller has cause of complaint nor right of redress, either from the other, for any mistake as to condition or quality, if, with mutual knowledge and good faith, they buy [**21]  and sell upon the credit of samples thus obtained. We think the appellants' first prayer should have been granted, as, in our opinion, there was no implied obligation or warranty on the part of the appellants, that the bulk of the tobacco sold should correspond in quality with the samples exhibited by them in making the sale to the appellee.
Upon this view of the point presented by the 2nd exception, the question as to the admissibility of the evidence contained in the 1st, becomes immaterial. The testimony, if admitted, would only have proved a usage among tobacco dealers, in strict conformity with what we understand to be the law in buying and selling tobacco by samples prepared by the State inspectors. We think the evidence offered was improperly rejected, although its admission could not change the legal result.

 [*171]  Upon the 3rd exception, it may be observed that the record contains no evidence that the tobacco sold was not of the kind designated in the bill of parcels. If the fact of a non-correspondence in kind were material to the case of the appellee, it was his duty to show it by competent proof, but he appears by the record only to have offered evidence to show [**22]  a non-correspondence in quality, as the ground of his claim for damages. The terms used in the bill of parcels, designating the subject of the sale as "heavy Clarksville tobacco," must be understood as descriptive of kind, and not of quality, for in that sense alone have they an intelligible and certain meaning. Although the evidence shows that "trash and scrapings" were intermixed with the tobacco sold, it does not appear to have been so affected or changed in character by the intermixture as to make any other designation than that contained in the bill of parcels proper or necessary. The obligation presumed from a bill of parcels designating merchandize sold as of a particular kind, is that the seller shall deliver goods of the kind mentioned, but, ordinarily, it imposes on him no obligation as to the quality. In such a case, the bill or account of sale, stating the kind of goods sold, does not imply a warranty of quality, nor can it have that effect without terms stating or referring to the quality, in which case the warranty is expressed, and not implied. This rule was recognized in the cases of Osgood vs. Lewis, 2 H. & G. 495, and Hyatt vs. Boyle, 5 G. & J. 110, [**23]  and seems to be supported by the general current of authority in other States. 2 Pick., 214. 18 Pick., 1. 3 Rawle 168. 10 Barr. 320. Upon these authorities, it is clear that the only warranty by the appellants, implied from the bill of parcels, was that the tobacco sold should be of the kind designated, and we think that there was error in refusing to grant the instructions sought by the appellants, by the 

 [*172]  prayer contained in their 3rd exception. The judgment must be reversed, without a procedendo.
Judgment reversed. 

3 of 196 DOCUMENTS 

ROBERT MOORE and CHARLES MOORE, vs. HERTZ BLONDHEIM, CAROLINE BLONDHEIM and WM. PINKNEY WHITE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

19 Md. 172; 1862 Md. LEXIS 66 

December 5, 1862, Decided 

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

This is an appeal from a decree of said Court, (KREBS, J.,) passed on the 4th of June 1859, dismissing a bill filed by the appellants against the appellees, to set aside a deed executed by Thomas J. Owen, on the 11th of June 1854, to Caroline Blondheim, one of the appellees. The allegations of the bill and answers, as well as the evidence in the case, are stated in the opinion of this Court.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

A voluntary deed of a debtor may be impeached and set aside by subsequent creditors, in cases where the deed is executed for the purpose of defrauding them; and it cannot be doubted that a deed of a solvent grantor, made and registered in the partial execution of a purpose to defraud subsequent creditors, would, as to such creditors, be declared invalid and void upon the consummation of the fraud.

Upon principle, it would seem that a deed fraudulent in fact, could not, by registration, be made effective against such subsequent creditors, nor bar their right to impeach it.

In contemplation of law, all acts done, and transactions had, in pursuance of a purpose to defraud, are but one act. The order in which they occur is immaterial, and any person within the range of the fraudulent purpose, and affected adversely by it, is entitled to have all or any part of the acts constituting the fraud annulled and set aside.

Where the prima facie proof of a deed, as to the consideration for which it was executed, is neither contradicted or assailed by direct evidence in the case, and, in the absence of such evidence, the deed is supported by the positive answers of the defendants, it must be held unaffected by the allegations of fraud in the bill of complaint.  

COUNSEL:
J. M. Campbell and P. McLaughlin, for the appellants:

The whole question is, whether the deed to Caroline Blondheim is fraudulent or not. The evidence shows it to be fraudulent in fact. Possession is evidence of property. 2 Phil. Ev., 427. This imposes on Caroline Blondheim the onus of showing that the money paid by her husband, Hertz Blondheim, was her money. Peacock vs. Pembroke, et al., 4 Md. 280. The recording of the deed, in this case, was not notice to the creditors of Blondheim that it was a voluntary conveyance from him, or that he was diminishing the assets to which they had a right to look for the payment of their debts.

Every voluntary settlement is not necessarily fraudulent, though the fact [**2]  of its being voluntary, is evidence of fraud, Russell vs. Hammond, 1 Atkyns, 13 and 15. It is not necessary that a party should be actually indebted at the time he enters into a voluntary settlement, to make it fraudulent, for if a man does it with the view of being indebted at a future time, it is equally fraudulent, and ought to be set aside. Stileman vs. Ashdown, 2 Atk., 477 and 481. Fitzer vs. Fitzer, et al., 2 Atk., 511 and 512. Salmon vs. Bennett, 1 Conn. R., 525. Sexton vs. Wheaton, 8 Wheat., 229. Turton vs. Turton, 6 Md. 375. Beall vs. Chew, 13 Md. 348. Patterson vs. McCubbin, 16 Md. 179.

Wm. Pinkney White, for the appellees:

To set aside the assignment or deed in question, it must be proved that it was made with the fraudulent intent, on the part of Hertz Blondheim, to delay, hinder and defraud his creditors, and that the deed, at the time of its execution, was intended to be the instrument of this fraud. Spencer, et al., vs. Jackson, 2 R. I. Rep., 45. In this State, upon a case presenting such facts as those disclosed in the record, the law is well settled. Faringer vs. Ramsay, 2 Md. 375. (See the same case in 4 Md. Ch. Dec., 37.) Glenn vs. Grover,  [**3]  3 Md. 212. Stockett, Adm'r, &c., vs. Holliday & Wife, 9 Md. 498.

Subsequent creditors can only impeach a deed made with fraudulent intention, and this cannot be presumed, but must be proved. Where a voluntary deed has been duly recorded, none but prior creditors can impeach it. See the opinion of Le Grand, C. J., and Tuck, J., in Banks vs. Williams, 11 Md. 250. Sexton & Wife, vs. Wheaton, 8 Wheat., 229. The recording of the deed was full notice of the conveyance of the property. Mayor & C. C. of Baltimore, vs. Williams, 6 Md. 235, note at 272.

The following cases were also cited by the counsel for the appellees: Sewell vs. Baxter, 2 Md. Ch. Dec., 447, affirmed in 3 Md. 334. Crowl vs. Ellinger, 17 Md. 361. Cooke vs. Kell, 13 Md. 469.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
COCHRAN 

OPINION:

 [*174]  COCHRAN, J., delivered the opinion of this Court:
The proceedings in this case were instituted by Robert Moore and Charles Moore, on behalf of themselves and others, as creditors of Hertz Blondheim, for the purpose of setting aside a deed made to his wife, Caroline Blondheim, by Thomas J. Owen, on the 11th of August 1854,  [**4]  and to procure a sale of the property conveyed, and a distribution of the proceeds among the creditors of Hertz Blondheim. It appears from the record, that Blondheim was engaged as a dealer in ready-made clothing for some years before the execution of the deed by Owen, and that he continued in that business until the 16th of June 1857, when, finding 

 [*175]  or professing himself to be in embarrassed circumstances, he executed a deed of his property to Abraham Rosenberg, in trust for the benefit of his creditors, and that he finally applied for the benefit of the insolvent laws on the 10th of May 1858, Wm. Pinkney White, one of the appellees, having been then appointed his trustee. The claim of the appellants against Blondheim, originated after, although his dealings with them commenced prior to, the execution of the deed from Owen to his wife.
The substance of the allegations contained in the original and amended bills, upon which the determination of the case depends, is, that Blondheim made the purchase of the property from Owen with his own money, and procured the deed of the same to be made to his wife, with the purpose and intent of becoming largely indebted to the appellants [**5]  and others, and of hindering, delaying and defrauding those who might thus become his creditors, of their just dues and claims. The appellees deny these averments in their answers, and support the deed on the alleged ground that the purchase from Owen was made by Caroline Blondheim, with money belonging to her, and not derived from her husband; and the question, as to the validity of the deed as against the creditors of Blondheim, thus presented, constitutes the only material issue in the case. The opinion of the Court, delivered in the case of Banks vs. Williams, 11 Md. 198, establishes the doctrine, that a voluntary deed of a debtor may be impeached and set aside by subsequent creditors, in cases where the deed is executed for the purpose of defrauding them; and it cannot be doubted that a deed of a solvent grantor, made and registered in the partial execution of a purpose to defraud subsequent creditors, would, as to such creditors, be declared invalid and void, upon the consummation of the fraud. Upon principle, it would seem that a deed, fraudulent in fact, could not, by registration, be made effective 

 [*176]  against such subsequent creditors, nor bar [**6]  their right to impeach it. In contemplation of law, all the acts done, and transactions had, in pursuance of a purpose to defraud, are but one act. The order in which they occur, is immaterial, and any person within the range of the fraudulent purpose, and affected adversely by it, is entitled to have all, or any part of, the acts constituting the fraud, annulled and set aside.
As the allegation of fraud in the execution of the deed in this case, presents a question of fact, we proceed to consider whether it is sufficiently established by the evidence contained in the record, to justify a decree setting aside the deed. Upon a careful consideration of the testimony presented, we think it does not show, with sufficient certainty, the fraud alleged. There is no satisfactory evidence that Blondheim was the real purchaser from Owen, nor is there of the fact that the property was paid for by money claimed by or belonging to him. The prima facie proof of the deed, as to the consideration for which it was executed, is neither contradicted nor assailed by any direct evidence in the case; and in the absence of such evidence, the deed, supported by the positive answers of both Caroline Blondheim [**7]  and her husband, must be held unaffected. Faringer vs. Ramsay, 2 Md. 365. Glenn vs. Grover & McColm, 3 Md. 212.
The evidence of Blondheim's insolvency in 1857, without an explanation of its cause, might well excite suspicions as to the honesty and good faith of his antecedent transactions, but, in our opinion, it does not reach the deed with sufficient force to impeach it. The testimony taken on the part of the appellees, to show that, anterior to the purchase, Caroline Blondheim was in possession of a considerable sum of money, which she loaned and dealt with as her own, and that the note she received for a sum loaned to Pollock, was passed as a part of the consideration for 

 [*177]  the property conveyed to her, although not entirely satisfactory, tends to support the deed, and free it from the imputation of fraud. As the case stands, we think the decree dismissing the bill, should not be disturbed.
Decree affirmed. 

4 of 196 DOCUMENTS 

ROBERT GARRETT, et al., vs. HENRY MAY, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

19 Md. 177; 1862 Md. LEXIS 67 

December 5, 1862, Decided 

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

This is an appeal from a decree of the Superior Court of Baltimore city, sitting as a Court of Equity, passed on the 12th day of April 1858, making perpetual an injunction theretofore granted in the case. The bill of complaint filed on the 29th of February 1856, by the appellees against the appellants, was a creditor's bill, as well as a bill for an injunction; its allegations are fully stated in the opinion of this Court. Upon this bill the Court below (LEE, J.) granted an injunction, without requiring a bond, but the defendants, R. Garrett & Sons, shewing by petition that the writ prevented their disposing of a large amount of the "third mortgage bonds," the said Court afterwards required a bond to be given.

The answer of the Garretts, filed the 4th of April 1856, states as follows: That they never held themselves out, nor assumed to act, nor were authorized to act, as general agents of the Central Ohio Rail Road Company, but in the fall of 1853, consented to act for it in negotiating and disposing of certain of its bonds or obligations, and from that time have continued to act for it in the disposition,  [**2]  from time to time, of such obligations as it might entrust to them for that purpose, and negotiating loans on its account, and making advances of money and credit to it, or for its use, upon securities. That among the obligations entrusted to it by the company, for sale or hypothecation, were certain of its "income bonds," a class of securities well known in the stock markets, and deriving their name from the pledge of the income of the road set out upon their face as the security and the only security offered for their payment over and above the general liability of the company. That the Central Ohio Rail Road Company, in all the "income bonds" issued by it, (except one for $ 1,000,) including those of the complainant, May, by an agreement endorsed thereon, and signed by its president, gave to the holders of the "income bonds" the right to convert them into stock at par. That in the disposition of said "income bonds," though they often had a discretion as to price, they were never authorized by the Central Ohio Rail Road Company to make any agreement by which the company was to be liable to the purchaser thereof in any other manner or to any other effect than as apparent on the "income [**3]  bond," and that they never assumed, in any case of sale or hypothecation of any of the "income bonds" of said company, to make such sale or hypothecation upon any agreement, express or implied, with the purchaser or holder, or any one for their account, which gave or was meant to give such purchaser or holder any right or title against the company, other than what was embodied in and apparent on the bond itself. That nobody who purchased "income bonds," but the complainants, have ever set up a claim that they were negotiated with an agreement for other rights than those given by the bond, and that such claim, on their part, was made only a few days before the filing of the bill. That in regard to the "income bonds" held by the complainant, May, they deny, in terms, that they or either of them made to him or to his agent, Oelrichs, or to any one for either of them, the declarations, representations or affirmations charged in the bill. That a third mortgage was executed by the Central Ohio Rail Road Company, with their privity, and openly to Messrs. Swann, Hopkins and Lurman, (the latter being a partner of the aforementioned Henry Oelrichs,) dated 1st, and acknowledged 5th March 1855,  [**4]  and recorded in Ohio, where all the property lay that was covered by it, and that the mortgagees (Swann, &c.) put their certificates on $ 295,000 of the "third mortgage bonds," in April 1855, and on the remainder in June following, in which last month and year the bonds were brought to the notice of the community, in Baltimore, where they were regularly printed in the brokers' books, as early as September 1855. That the whole amount of the "third mortgage bonds" (after deducting $ 100,000, provided for a sinking fund) was $ 850,000, of which amount they hold $ 798,000, received at the times above stated, when the company was not insolvent, according to their then or present belief, as they advanced in cash for it, between 1st May 1855, and 1st February 1856, $ 170,487.18, principally for payment of interest on mortgage and "income bonds," and forbore to sell the securities they held, as they might have done at any time, for their reimbursement. That the said $ 798,000 of "third mortgage bonds" are now held by them for sale, without limit, on account of the Central Ohio Rail Road Company, and they are entitled, out of the first sales, to be reimbursed $ 143,750, being a portion of their [**5]  advances in 1855, and, of the further sales, the proceeds are to be divided, and 65 per cent. goes to the residue of the debt due them, and 35 per cent. to the satisfaction of certain notes of the company, endorsed by sundry of its directors for its accommodation, and discounted for its use, and that when the bill was filed in this cause, the sum of $ 24,366.50 was due them, by average, 12th September 1855, and the further sum of $ 374,892.92 on the 5th February 1856, and that when the bill was filed, they had full power to sell said mortgage bonds for their debt, and that besides said mortgage bonds, they hold as security $ 157,500 of "income bonds," the interest coupons on the first and second mortgages taken up by them, and a mortgage executed to them without any request on their part, though accepted by them, bearing date 28th September 1855, and also held an order for $ 6,893.75 of mail pay on the Postmaster General, which has since been received, and is the only payment made them. That they deny that the "third mortgage bonds" or third mortgage security are liable to the "income bond-holders," or that such holders have any equitable lien, or grounds for an equitable lien on them.  [**6]  That they took the "third mortgage bonds" without knowledge or notice of any claims thereon of any holders of "income bonds," and deny all knowledge or notice of the representations as to further security for "income bonds" charged in the bill to have been made by the company or themselves, and each of the respondents denies having made such representations, or any thing to the like effect in regard to "income bonds." That the holders of "income bonds" are not entitled to priority over the third mortgage as against them, or entitled in any way to the benefit of the third mortgage. That they know of no such law in Ohio as is mentioned in the bill making "income bond-holders" legal mortgagees of the company's property and income, and that the allegation thereof is at variance with the rest of the bill, and destructive of its equity. That they never have cast any cloud on, or impaired the rights of "income bond-holders," or set up any claim in conflict with their rights. The answer then pleads the statute of frauds, the want of jurisdiction on several specified grounds, that the complainants are not entitled to file a creditor's bill, and that they have adequate remedy at law.

The [**7]  answer of the Central Ohio Rail Road Company is as follows: It protests against the exercise of jurisdiction over it, and sets up the same defences of law which are relied on in the answer of the Garretts. It adopts that answer as to the details of the sale to Oelrichs, and avers that no demand outside the bill has been made on it, by any of the complainants, for any other bonds than those which they received. It says that the Garretts were never authorized by it to enter into any agreement by which the company was to be liable to the holders of "income bonds" in any other manner than as appears on the bonds themselves, and that they have always understood from the Garretts that they so sold them, and that it never agreed with any of the complainants, or authorized the Garretts to substitute "third mortgage bonds" for "income bonds," or make provision by "third mortgage bonds" for the convertibility or security of "income bonds." And it denies that the Garretts are or ever have been its general agents, or have ever been held out as such, and says that they were agents only to sell its bonds and negotiate loans for it, and that their only power in regard to "income bonds," was to sell [**8]  them as they were, without adding to, or taking from, the obligation imported by their terms when they left the company's hands.

The complainants filed under the commission, as their evidence, four mortgages executed by the company; of these the 1st and 2nd are not connected with the issues presented on this appeal. The 3rd mortgage is dated the 1st of March 1855, and purports to secure the sum of $ 950,000; the 4th, dated the 28th of September 1855, is to Robert Garrett & Sons, and the amount intended to be secured, $ 500,000.

The original "income bond," marked C. O. No. 1, filed with the answer of the Cent. Ohio R. R. Co., and therein referred to, is as follows:

STATE OF OHIO.

No. 53.   Central Ohio Rail Road Company.   $ 1,000.

The Central Ohio Rail Road Company acknowledge to owe R. Garrett & Sons, or bearer, the sum of one thousand dollars, which sum said Central Ohio Rail Road Company promise to pay to the legal holder thereof, at the office of the Ohio Life Insurance and Trust Company, in the city of New York, on the first day of April, in the year 1860, and also interest thereon, at the rate of seven per centum per annum, semi-annually, on the [**9]  first day of each April and October ensuing the date hereof, until said principal shall be paid, upon presentation at said office of the proper annexed interest warrant. For the punctual payment of the interest and principal of this obligation, and others of like tenor, issued or to be issued, in preference to the payment of the dividends on the capital stock of said Central Ohio Rail Road Company, the income arising from their road, and its appurtenances, is hereby specifically pledged. And the said company further agree, that this obligation, and all rights and benefits arising therefrom, may be transferred, by general or special endorsement, or by delivery, as if the same were a note of hand.

In testimony whereof, the said Central Ohio Rail Road Company have hereunto caused to be affixed their corporate seal, and these presents to be subscribed by their president, and countersigned by their secretary, at the city of Zanesville, on the first day of February in the year 1855.

J. H. SULLIVAN, President.

Wm. Wing, Secretary.

Written upon its face:--"One thousand dollars. Redeemable April 1st, 1860."

Upon the back of said bond was the following agreement:

By [**10]  virtue of a resolution of the board of directors of the Central Ohio Rail Road Company, authorizing it to be done, it is agreed that the holder of the within bond may exchange the same for twenty shares of the capital stock of said company, at any time before the maturity of said bond, by presenting the same, together with the unpaid interest warrant, at the office of the treasurer of said company, in the city of Zanesville.

In witness whereof, I, John H. Sullivan, the president of said company, have hereunto affixed my official signature.

J. H. SULLIVAN, President.

All other evidence in the cause sufficiently appears from the arguments of counsel, and the opinion of this Court. The Court below, (LEE, J.,) on the 12th of April 1858, decreed that the "income bonds" held by May and others, were a security prior to the "third mortgage bonds," and perpetually enjoined the defendants from disposing of any of the "third mortgage bonds." From this decree the defendants have prosecuted the present appeal.  

DISPOSITION:
Order reversed, and bill dismissed, with costs to appellants.  

HEADNOTES:

The Cent. Ohio R. R. Co. issued certain bonds, styled "income bonds," wherein it was recited, that, "for the punctual payment of the interest and principal of said obligations, and of others of like tenor, issued or to be issued, in preference to the payment of dividends on the capital stock of said company, the income arising from the road and its appurtenances, is hereby specifically pledged;" and afterwards, on the 1st of March 1855, the said R. R. Co. executed a mortgage upon the whole line of said Railroad, in trust, to secure the payment of other bonds, issued and to be issued, with interest, to the amount of $ 950,000. A bill was filed by certain of the holders of said "income bonds," praying for an injunction to restrain the sale of said "mortgage bonds," and claiming a priority over, and an equitable lien upon, said "mortgage bonds" in the hands of their holders. Answers were filed by the defendants, responsive to and denying the material allegations of the bill. There was no competent and admissible evidence tending to show that any of the complainants were induced to purchase the "income bonds" under any other representations than those on the face of said bonds, or that the R. R. Co. had authorized any one to make such representations. On said bill and answers, and state of the evidence, HELD:

1st. That fraud against the "income bond-holders" is not to be imputed to the said R. R. Co., in consequence of the issuing of said "mortgage bonds," and that said mortgage indicates none other than a legitimate purpose to resort to such means as would promote the ultimate purpose for which the company was created.

2nd. That under the said bill, answers and evidence, the injunction should not have been made perpetual in the Court below.

3rd. That the terms of the "income bonds" are specific, and the holders of said bonds must be confined to the preference thereby given.  

COUNSEL:
J. M. Campbell, for the appellants:

The Courts of Maryland have no jurisdiction to determine the relative [**11]  priorities of securities affecting landed estate in Ohio. Sto. Conflict of Laws, secs. 539, 543, 545, 551, 552, 363, 364 and 365. The Courts of Maryland have no jurisdiction of a creditor's bill, where the debtor resides and all his property lies out of the State. (See authorities above cited.) The question of priority arises only upon distribution, and it cannot be settled hypothetically before the distribution comes.

Putting aside the extra-territorial difficulty, the statute of frauds is a bar to the attempt, directly or indirectly, to get by parol an interest in land, as security. A party has lent money, and now asks, that by parol, an agreement giving an interest in land may be enforced. This cannot be done. The same statute is a bar to the attempt to interpolate into the "income bond" a provision not contained in it, being the varying of a written instrument by parol.

If the alleged representations were made, there was adequate remedy at law for non-compliance with them. On such a contract, a suit at law would lie. The measure of damages would be the difference between the actual value of the "income bonds" and the "third mortgage bonds."

There is absolutely no [**12]  proof that the Cent. Ohio R. R. Co. ever authorized the sale of any "income bonds" except according to their own written terms, and those terms, on their face, indicate what was to be their only priority, viz., to dividends on stock, and that they were not meant to be, and are not either legally or equitably a mortgage. Perkins vs. Debtford Pier Co., 13 Simons, 281. No proof is offered of any representations made by Garrett to any of the "income bond-holders" now suing, except in regard to May, and as to him, the only proof is that May said John Garrett made representations to him. This was excepted to, and amounts to nothing.

H. May and R. J. Brent for the appellees:

I. The "income bonds" held by the complainants, constitute, as between the rail road company and the holders, an equitable lien upon the whole income or revenues of the rail road. An idea has been entertained that the expression in these bonds, "in preference to the payment of dividends on capital stock," &c., makes them nothing but a preferred stock. Such an idea would destroy the "income bond" as an evidence of debt, and enable the debtor to deprive the creditor of his stipulated security, by creating new [**13]  debts ad infinitum, to be preferred to that very security which the senior class of creditors had solemnly been promised. The proposition on the other side, is simply this, that the debt clearly evidenced by the obligatory part of the bonds held by the complainants, is virtually without any security whatever, notwithstanding these bonds specifically pledge for that debt all the income of the road and its appurtenances. Undoubtedly the charter of this company never authorized such an idea, as paying creditors with preferred dividends on stock, when, by its 12th section, it declares that dividends shall be made among the stockholders.

The appellants construe this contract erroneously. 1st. Because the contract should be supported, and not defeated, ut res magis valeat quam pereat. 2 Parsons Con., 15. Broom's Maxims, 353. 2nd. Because, in cases where the contract bears a double construction, it should receive that sense which will make it efficacious. 2 Parsons Con., 16. 3rd. Because such a construction should be placed on it as will make it just and reasonable. 2 Parsons Con., 16. 4th. Because their construction regards only the clause which provides a preference over stockholders,  [**14]  and ignores the clause which specifically pledges the whole income for a debt. 2 Parsons Con., 17. How, then, should the clauses of this bond be reconciled so as to give effect to the whole context? It will be observed that the whole income is pledged to meet the principal and interest as they fall due; and the exclusion of dividends to stockholders until these bonds are paid, looks to an accumulation of the income, so as to prevent dividends being paid to stockholders at any time before the maturity of the bonds.

In equity, parties can always contract for a lien on future earnings or property to be acquired, and such liens will be enforced. Redfield on Railways, 587, 591. 3 Leading Cases in Eq., 307, 308. It will be seen that the charter of this company expressly authorized the issuing of "income bonds." (See 21 How., 422, 424.) And this power exists unless restrained by the charter. Redfield on Railways, 575. Susquehanna Bridge and Bank Co. vs. Gen. Ins. Co., 3 Md. 311. But we insist that such a pledge of all the income or revenues of the road, amounts, in equity, to a pledge of the road itself, creating therefore an equitable mortgage on the road, its franchises and revenues.  [**15]  Redfield on Railways, 587. Pierce on Railways, 512. Casilly & Wife, et al., vs. Meyer, et al., 4 Md. 10, 11. Sullivan, et al., vs. Tuck, Ex'r of Bowie, 1 Md. Ch. Dec., 59. Legard vs. Hodges, 3 Bro. Ch. Rep., 536. Same case in 4 Bro. Ch. Rep., 422. 2 Story's Eq., sec. 1231.

It follows, therefore, from the nature and effect of these "income bonds," that the Railroad Company could not, without a violation of their own obligations, tantamount to fraud, attempt to impair the unrecorded lien on their property, as based on the "income bonds," by placing on record a third mortgage deed, designed to secure a new batch of bonds to be circulated in the community upon the faith that these "third mortgage bonds" were to be paid, in order, after the "first and second mortgage bonds," as secured by the effect of the recorded mortgages. Such an attempt to overreach their antecedent creditors who held these "income bonds," by the creation of junior but preferred liabilities, is, in itself, a fraud on the part of the company, which merits the sternest treatment at the hands of a Court of Equity. The company, as the maker of these "income bonds," having express notice of their equitable lien [**16]  on its whole corporate property, ought to be restrained by injunction from the execution of its designs, thus to overreach the elder but unrecorded lien created by its "income bonds," because, unless restrained, the bona fide purchasers of the "third mortgage bonds," without notice of these unrecorded liens, would be preferred; and thus irreparable injury would be inflicted on the confiding purchasers of the income bonds. These are familiar principles of equity. 2 Waterm. Eden on Inj., 341, and notes. Ibid., 387, note 1. Clagett, et al., vs. Salmon, 5 G. & J., 334, 348, 349. The Railroad Company being here a party defendant, is clearly liable to the terms of the decree under review, notwithstanding its non-residence, or the locality of its property. 2 Sto. Eq., secs. 1292 and 1298. Penn vs. Lord Baltimore, 1 Ves., Sr., 454. Carroll vs. Lee, 3 G. & J., 504. White vs. White, 7 G. & J., 208. Massie vs. Watts, 6 Cr., 148. Nor. Ind. R. R. Co., vs. Mich. Cent. R. R. Co., 15 How., 243.

II. The firm of R. Garrett & Sons are co-defendants, and the question is, whether quoad the "third mortgage bonds" held by them, they are not equally affected in good conscience by the superior equities [**17]  of the holders of the "income bonds." It appears, not only from the evidence in the case, but from the answer of the Garretts, that they received the "income bonds" from the company, as its financial agents, and put them in circulation through the community. Therefore they had express notice of the equities created by these bonds. It also appears from the evidence, and the answer of the Garretts, that they received and held, at the date of this injunction, a very large amount of the "third mortgage bonds," and that these bonds were placed in their hands by the Railroad Company. Their own answer admits that they were privy to the preparation and execution of the third mortgage and its bonds, and the same fact is abundantly proved by the evidence in the cause. We therefore confidently maintain, that the Garretts are in no better predicament than the Railroad Company, whose financial agents they were, but they took the "third mortgage bonds" not only for the improper uses of the company and themselves, but with express notice of our prior equities, and of the necessary repugnancy between those known equities and the "third mortgage bonds" they designed using to our detriment. Such notice [**18]  fastened on the Garretts, makes them trustees of the title derived by the "third mortgage bonds," for the benefit of the "income bonds." 1 Story's Eq., secs. 395, 399. Hudson vs. Warner & Vance, 2 H. & G., 415.

III. The representations of John Garrett, made to different parties at the time of issuing the "income bonds," are proved to have been expressly to the effect that the "income bonds" would be retired or absorbed by the "third mortgage bonds," as soon as they should be prepared and issued. These declarations, though not proved to have been made to any of the complainants at the time of acquiring their "income bonds," except in the case of J. Lee & Co., are nevertheless admissible, in the peculiar circumstances of this case: 1st. Because similar representations to those alleged by a plaintiff to have been made by the defendant, are always received to show the intent of a party, or the "mala mens." 1 Phillips Ev., (Cow., Hill & Edw.,) 768. 2nd. Because there can be an indirect representation to the complainants from the publicity of the defendant's, John Garrett's, statements to the witness, in regard to the provisions made for the "income bonds," which his firm was circulating [**19]  in the community, and virtually advertising for sale. 10 B. & C., 140, 141. Glassford Ev., 334, 335. 2 Smith's Lead. Cases, 642, 643. Maltby vs. Chistie, 1 Esp. Rep., 342. 3rd. Because the conduct of the defendant, John Garrett, in making these representations of the intended convertibility of the "income bonds" into "third mortgage bonds," ought, in equity, to estop him and his firm from denying the truth of these representations, quoad the "third mortgage bonds" held by them. 1 Spence's Eq., 550. Pickard vs. Sears, et al., 6 Adol. & Ellis, 469. 4th. Because a material representation, not known to be true, is equivalent to a fraudulent representation. Morns vs. Heyworth, 10 Mees. & Wels., 155. Lindenan vs. Desborough, 8 Barn & Cress., 586. Huguenin vs. Rayley, 6 Taunt., 186. East vs. Matheny, 1 A. K. Marsh., 192. 5th. Because the conduct of agents, in making representations to circulate the "income bonds," is, in law, the conduct of the principal. 1 Parsons Con., 62, notes. 2 Parsons Con., 277. 6th. Because May's declaration, as proved by Oelrichs, that he would buy on the faith of the alleged representations made by John Garrett to him, is part of the res gesta, and otherwise competent,  [**20]  especially as Oelrichs was agent of the Garretts in selling to May, and he did not undeceive him. 1 Moody & Malken, 306, 307, 308. 2 Eng. C. L. Rep. 7th. Because John Garrett subsequently admitted the fact of his having made such representations to the witness, Oelrichs.

IV. What relief are the complainants entitled to? We have the right to a supplemental decree, requiring the Garretts to hold the bonds now in their hands as a security for the benefit of these complainants, thus giving them nearly two dollars of "third mortgage bonds," as security for one of "income bonds," and so the decree may be modified in any way by this Court. 1 Vol. of Code, Art. 5, sec. 28. Or a receiver may be appointed to hold the $ 190,000 of "third mortgage bonds" for the security of these complainants. Redfield on Railways, 573, sec. 5. The decree appealed from, was only final so far as it settled the priority of our "income bonds," and it shows, on its face, that the Court contemplated further proceedings to carry out the decree practically.

V. We maintain that the parol evidence tending to show that the "income bonds" were agreed to be soon substituted by "third mortgage bonds," does not contradict [**21]  the terms and effect of said "income bonds," but shows simply that the purchasers took them as collateral security for the due delivery of the "third mortgage bonds" then in a course of preparation for issue. Such evidence relates merely to the tenure of the "income bonds," which were delivered in part execution of this parol agreement to take them up in a short time with new securities. 10 G. & J., 404. We want specific performance of this partly executed agreement, as it was the inducement held out to the public, by the Garretts, to facilitate the sale of the "income bonds;" and they ought to be held to the performance of their own promises, when the means are in their control.

Finally, we submit that this case, as against the company and their agents, the Garretts, should be ruled by the broad principles affirmed in 23 Howard, 397, 398, and 400.

Reverdy Johnson, for the appellants, in reply:

1st. The only representation charged to have have been made by the bill, as amended by the agreement, is that made to May alone. Was there, then, any representation made to May at all? The bill does not allege that any representation was made with a fraudulent design and purpose.  [**22]  It is consistent with the bill that the representation was made in good faith. In the absence of such an allegation, this Court cannot consider the question of fraud, even if the evidence establishes fraud. But the case need not be put on this ground, for there is, in fact, no evidence of such a representation. The sale was made on the 24th of March 1855, and the written contract of sale contains no such representation. In making the sale, Oelrichs is acting as May's agent, and the agent of the Garretts. There is no pretence that the Garretts said to Oelrichs any thing in regard to the bonds, at the time of the sale. He testifies that May said Garrett made the representation. This evidence is excepted to. The case in 1 Moody & Malkin, does not sustain the admissibility of this proof. Strike out this part of Oelrichs' testimony, and there is not a particle of proof of the representation. But there is no proof of any agency on the part of the Garretts to make any such representations. Oelrichs' only agency was to sell the "income bonds." There was, then, no representation.

2nd. A question of law, then, arises, viz. To what relief are the holders of the "income bonds" entitled? What [**23]  is the nature of the bond, and what right and what security does it give? The word income, here, means net income from the road and its appurtenances. The holder is thus made only a preferred stockholder. The money borrowed, afterwards furnished the means for making the income; for it was applied to the construction and working of the road. It was the food on which the "income bonds" lived.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*192]  GOLDSBOROUGH, J., delivered the opinion of this Court:
On the 8th day of May 1847, the General Assembly of the State of Ohio passed an Act incorporating the Central Ohio Railroad with perpetual succession, and with authority to construct a Railroad, commencing at or near the city of Columbus, and extending eastward to such point on the Ohio river as the directors might select.
By the 14th section of said Act, the company was empowered to borrow money on its credit, and to make and execute such bonds, promissory notes and other evidences of debt, payable, transferable and redeemable at such times and places and in such form as might be therein designated. By the 15th section, it is provided,  [**24]  "that for the security of the payment of such monies so borrowed, and the interest thereon, said directors may pledge, by mortgage or otherwise, their entire road, franchises, fixtures and equipments, with the income and resources thereof, together with the capital stock."
In pursuance of this authority, the company proceeded to construct the Railroad; and, with a view of obtaining funds, executed a first and second mortgage, the provisions of which are not involved in this suit.
After the execution of the above mortgages, the Railroad Company issued certain bonds, denominated "income bonds." The material part of which is as follows: "For the punctual payment of the interest and principal of said obligations, and of others of like tenor, issued or to be issued, in preference to the payment of dividends on the capital stock of said company, the income arising from the road and its appurtenances is hereby specifically pledged."
A portion of these bonds were entrusted to the appellants, Robert Garrett, Henry S. Garrett and John S. Garrett, for sale or hypothecation.
The appellee, Henry May, by his agent, Henry Oelrichs, purchased five of these bonds, on the 24th day of March  [**25]  

 [*193]  1855, for which he paid, through his agent, the consideration money to the appellants, the Garretts. Josiah Lee & Co. also purchased fifty of these bonds.
The Railroad Company executed a third deed of mortgage on the first day of March 1855, in favor of the appellants, Thomas Swann, Johns Hopkins and Gustav W. Lurman, as mortgagees and trustees. The purpose of which deed was "to provide for the funding of the floating debt, and to raise money therefor, by loan, to an amount not exceeding $ 850,000.
The appellees, Henry May and Josiah Lee & Co., feeling themselves aggrieved by the conduct of the Railroad Company, in executing this third mortgage, filed their bill of complaint in the Superior Court of Baltimore city, on the 29th day of February 1856, and this bill was so filed in behalf of themselves and all other creditors of the Railroad Company. The complainants prayed for an injunction to restrain the appellants, the Garretts, from selling the bonds issued in pursuance of the power conferred by the third deed of mortgage.
By an agreement of the parties, filed on the 6th of February 1858, "the original complainants constituting the firm of Josiah Lee & Co., and all allegations [**26]  relating thereto, are to be stricken out of said bill of complaint. The bill is to be considered as the bill of complaint of Henry May, Zenus Barnum, William Carstangan, Daniel W. Warneken, Edward Boninger and Robert Leter, the last two trading as Boninger Brothers."
The grounds on which relief is sought, are, that the five "income bonds" of the appellee, May, were bought by him from the appellants, the Garretts, who had been for a long time previously the agents of the Railroad Company, and, as agents, entrusted with the custody and disposal of these "income bonds," and of others of like tenor and effect, and with a view to better negotiation of them, the company, as 

 [*194]  well as its agents, especially John S. Garrett, did declare and affirm that the said "income bonds" were to be secured or provided for by a deed of mortgage, then about to be executed by the company, on all its property and effects, subject to two preceding mortgages; and that the manner in which the "income bonds" were to be secured or provided for, in the third deed of mortgage, was by converting the "income bonds" into bonds secured by the third mortgage. That similar representations were made [**27]  to others than the appellant, May.
That when this mortgage was executed, no provision was made for the better securing the "income bonds," as the company was bound to do.
That the company, being insolvent, delivered to the Garretts all, or nearly all, the bonds secured by the third mortgage, and that they then held them either as agents of the company, to raise money thereon, or as collateral security for, or in satisfaction and discharge of, the company's indebtedness to them or others; but that, in either case, these "third mortgage bonds" are liable, in the hands of the holders, to the equitable lien thereon of the complainants.
That independently of any agreement for further security in respect to the "income bonds," they were issued under authority of a law of Ohio, and, by virtue of that law, the holders of the "income bonds" are legal mortgagees of the entire property and income of the company, and, as such, entitled to priority over the holders of the "third mortgage bonds," and that the Garretts pretend that the "third mortgage bonds" are entitled to priority over the "income bonds;" and the complainants allege that such pretences prevent the sale or disposition of their [**28]  bonds at their proper value.
The complainants then prayed for an injunction restraining the defendants from disposing of, or parting with, the 

 [*195]  bonds now held by them, and secured by the third mortgage, or from setting up the said bonds as entitled to priority or preference over the "income bonds;" and that the complainants and holders of the "income bonds" may be substituted as preferred creditors, to the security of said deed of mortgage. The injunction was issued as prayed.
At the final hearing, the Superior Court passed a decree in conformity with the prayer of the complainants, and perpetuated the injunction. From this decree an appeal was prayed and taken.
In view of the opinion entertained by this Court, upon the merits of the case, as developed by the bill, exhibits, answers and depositions, we do not deem it material to decide the question of jurisdiction raised by the appellants.
Although the allegations in the complainants' bill may have justified the Court below in granting the injunction, yet, upon the coming in of the answers and depositions, we think the Court erred in passing its final decree, granting the relief prayed for, and perpetuating the injunction. [**29]  
The answers of the defendants are not only responsive to the bill in every material allegation, but expressly deny the general agency of the Garretts, the representations of their intention to substitute the "third mortgage bonds" for the "income bonds," and especially deny that any authority was given or exercised to sell the "income bonds" upon any other terms than those appearing upon the face of them.
Looking then to the depositions, and excluding from our view the connection of Josiah Lee & Co. with the bill and subsequent proceedings, we find no testimony, whatever, tending to show that any of the present appellees were induced to purchase the "income bonds" under any other considerations than those terms stated on the face of them, except Mr. May; and we are of opinion that his declarations, made to his agent, Mr. Oelrichs, were not admissible, and were properly excepted to by the appellants. 

 [*196]  And further, if any representations were made by the appellants, the Garretts, that the "third mortgage bonds" would be substituted for the "income bonds," there is no evidence to show that the Railroad Company gave any authority to make such representations, or, if they [**30]  were made, that they came to the knowledge of Mr. May, and that he was influenced by them to make the purchase of the bonds he now holds.
We are therefore constrained to decide that the appellees have wholly failed to establish the general agency of the appellants, the Garretts, or that they made the representations charged in the bill; and further, that no authority was vested in them to sell the "income bonds" upon any terms other than those on the face of them. That to superadd others, would have been in conflict with that well settled rule of law, that no written instrument can be explained, altered or added to by parol, which, in its application to this case, must be observed.
The point was especially urged, in argument, that the Railroad Company, having issued the "income bonds," had no legal right to execute the third mortgage, and, by so doing, committed a fraud upon the purchasers of the "income bonds," and deprived them of every means of deriving any pecuniary advantage from their possession. We have maturely considered the force of this point, and are of opinion that it is untenable.
We can perceive nothing in the stipulations of the "income bonds" which in any way [**31]  precluded the Railroad Company from executing other obligations to obtain means to complete their road. The terms of the "income bonds" are specific, and the holders of these bonds must be confined to the preference given thereby. The procurement of funds other than those realized by the sale of the "income bonds," was but increasing the ability of the company to render the road available for the reception of income, thereby enabling 

 [*197]  it to meet the payment of the interest and principal of these bonds. The third mortgage indicates none other than a legitimate purpose to resort to such means as would promote the ultimate purpose for which the company was created.
Order reversed, and bill dismissed, with costs to appellants. 

5 of 196 DOCUMENTS 

MAYNARD MCPHERSON, and others, vs. CHARLES A. SNOWDEN, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

19 Md. 197; 1862 Md. LEXIS 68 

December 5, 1862, Decided 

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

This is a proceeding by bill in equity, filed by the appellees against the appellants, on the 27th of November 1857, for the sale of the real estate of Margaret Dorsey, deceased, (formerly Margaret Hudson,) lying in the city of Baltimore. The appeal is from a pro forma order of said Court, sustaining the complainants' exceptions to account B, and ratifying account C, reported by the auditor of said Court, distributing the net proceeds of the real estate sold under a decree passed in said proceedings. The case is so fully stated in the opinion of this Court, as to render any further statement here unnecessary, except as to matters referred to in said opinion, but not incorporated therein.

By the answer of Penn & Mitchell, filed in the cause on the 5th of February 1858, and exhibits P. & M., No. 1, and No. 2, as well as by the answer of Richard N. Snowden, one of the children of Ann Rebecca Snowden, deceased, it appears that the said Richard N. Snowden, being indebted to the said Penn & Mitchell in the sum of $ 5,000, on his bond or writing obligatory, to secure the payment of said indebtedness, conveyed to [**2]  them, by mortgage dated the 10th of July 1856, "all title and interest he may and will possess, either in his own right, or as heir of Ann Rebecca Snowden, by reason of all or any of the deeds, conveyances and declarations of uses hereinbefore recited and referred to," in the real estate of said Margaret Dorsey, deceased; that upon the non-payment of said indebtedness, in conformity with the requirements of the said mortgage, the said Penn & Mitchell proceeded to procure the foreclosure of said mortgage, obtained a decree for the sale of the interest of the said R. N. Snowden in the aforesaid real estate, and, at the trustee's sale under said decree, became the purchaser of said interest, and received the deed of the trustee therefor. By virtue of their said proceedings, Penn & Mitchell "claim an equal interest in said property, as the assignees of the said Richard N. Snowden, with the other children of the said Ann Rebecca Snowden."

The petition of Joshua Turner, Joseph Turner, William Robinson, and Henry James, states, that the said petitioners recovered judgments, at the October term, 1857, of the Circuit Court for Anne Arundel county, against the said Richard N. Snowden, then [**3]  of said county, but afterwards of Baltimore city, the said Turners for the sum of $ 451.54, with interest and costs, the said Robinson for the sum of $ 997.95, with interest and costs, and the said Henry James for the sum of $ 447.55, with interest and costs; that fi. fas. were issued on said judgments to the sheriff of Anne Arundel county, and severally returned "nulla bona;" that writs of attachment, directed to the sheriff of Baltimore city, were afterwards issued on said judgments, and by him laid in the hands of S. Teakle Wallis, J. Shaaff Stockett, and F. H. Stockett, trustees for the sale of the real estate of Margaret Dorsey, deceased; and asks that the Court "will order and direct the said trustees, out of the interest of the said Richard N. Snowden in the aforesaid proceeds of sale, to pay to your petitioners the said sums of money, interest and costs, so as aforesaid severally and respectively recovered by them against the said Snowden."

It appears, from the record, that Ella Snowden, another of the children of the said Ann Rebecca Snowden, died intestate and without issue, on the 11th of April 1858, whereby her interest in the said property vested in her surviving [**4]  brothers and sisters.

The claim of the Savings Bank of Baltimore, is under a mortgage dated October 13th, 1845, executed by Margaretta Nicols, Thomas Snowden and Ann Rebecca Snowden, to said bank, on their interest in certain real estate of Margaret Dorsey, deceased, securing the payment of certain promissory notes therein mentioned.

The claim of Henry V. D. Johns and Montgomery Johns, executors of John Johns, deceased, is upon two mortgages executed by Peregrine Fitzhugh and Sarah Margaret Fitzhugh, his wife, and J. Hudson Pottinger, to the said John Johns, of their interest in the property in the proceedings mentioned, the first dated the 20th of December 1843, and the second the 6th of November 1850, to secure the payment of two promissory notes mentioned in said mortgages.

In pursuance of an agreement of the parties, recited in the opinion of the Court, a pro forma order was passed by the Court below, (LEE, J.,) sustaining the exceptions of the complainants to account B, and ratifying account C, reported by the auditor of said Court, and further ordering "that the sum awarded by said account C, to R. N. Snowden, be paid to his attaching creditors, the Turners and [**5]  the other petitioners in this cause, in proportion to their respective claims." From this order the defendants appealed.  

DISPOSITION:
Decree reversed and cause remanded for further proceedings.  

HEADNOTES:

Where, in a declaration of uses, the word "issue" is used both in connection with the disposition of the rents and profits, and the disposition of the corpus of the estate, it justifies the application to the term thus used, the rule that technical words are to be construed more strictly in a deed or grant, than in a will.

In a will, the word "issue" is not a technical expression, implying prima facie words of limitation, but will yield to the intention of the testator, to be collected from the words of the will. In a deed or grant it is otherwise.

The word "issue," in its natural, and often in its legal sense, means children, and is a word of purchase.

The declaration of uses was, in effect, as follows: "In trust for the use of the four daughters of A, (the declarant,) and their issue, so that during the life of the longest liver of the said four daughters, they and the survivors and survivor of them, and the issue of any of them who shall have died, shall receive the rents and issues of the real estate mentioned; the child or children of any deceased daughter of A, to take the part or portion which their or its parent would, if living, be entitled to, and from and after the death of all the aforesaid daughters of A, then for the use of all the issue of all the daughters of A, and their heirs, in fee-simple." HELD:

1st. That the words "all the issue of all the daughters," exclude the idea of a representative right through the daughters, and make that issue, or the children of the daughters, the immediate and equal recipients of the benefits of the grant. And if the issue of the daughters take in their own right, and not by representation, they take per capita and not per stirpes.

2nd. That the issue or children of the daughters -- two unmarried daughters yet surviving -- take a vested remainder, dependent upon a life estate pur auter vie, that is, for the lives of the surviving aunts, or the life of the survivor of them, subject, however, to open and let in any after-born child or children who might be born during the life estate of the aunts, or the survivor of them, to participate in the fee.

3rd. That under the grant in this case, it does not follow, because the issue of the daughters take per capita, that they become joint tenants with the right of survivorship.

R, a grandson of one of the daughters of the declarant, conveyed by deed of mortgage to P & M, "all the title and interest he may or will possess, either in his own right, or as heir-at-law of his deceased mother, by reason of all or any of the deeds, conveyances or declaration of uses" mentioned in the deed of mortgage. HELD: That the share to which R was entitled, as one of the heirs-at-law of a deceased sister, did not pass by the terms of said deed of mortgage.

Where attachments were issued on sundry judgments against the said R, and laid in the hands of the trustee, for the sale of the real estate decreed to be sold for distribution -- HELD: That the process of attachment is a special statutory remedy, and in resorting to it, the terms of the law conferring it must be strictly pursued; the jurisdiction being exclusively in a Court of Law, and in a case where, from a conflict of jurisdiction, or from other causes, the remedy by attachment is not full and complete, a Court of Equity would seem to have no power to pass any order to aid or perfect it.  

COUNSEL:
I. N. Steele, for the appellants, the McPhersons:

The controversy in this case, it is to be observed, grows out of limitations in a deed, and the rule of construction in such cases requires a much stricter adherence to settled principles than is adopted in the cases of wills. In the former, terms are used having a fixed meaning, which meaning Courts invariably give to them; while, in the latter, frequently prepared with less deliberation and care, a much greater looseness is tolerated, for the purpose of effectuating the intention of the testator, which, it is assumed, an adherence to the technical signification of legal terms in such instruments, might frequently defeat.

The solution of the question in this case depends upon the true meaning of a few words; and in arriving at that meaning, upon a construction of the language of the deed, there is this cardinal rule to be borne in mind, viz: that where the same term is used in different portions of the same instrument, the same meaning is [**6]  to be given to it wherever it is thus used, unless the context contains something clearly indicative of a contrary purpose. Examples of this are constantly occurring, and may readily be found in the cases to which we refer as distinctly declaring the rule of construction we have stated. Ridgaway vs. Munkittrick, 1 Dr. & War., 89, 92 and 93. Woodland vs. Wallis, 6 Md. 166. Adams, et al., vs. Law, 17 How., 422, and cases on p. 202.

Bearing clearly in mind this rule, so obviously well-founded and resting upon the highest authority, what construction is to be put upon the language employed by the grantor?

It is plain beyond question that the estate of the daughters of the declarant was simply one during their lives. The rule in Shelley's case can, therefore, under no possible theory, have any application here, and the word "issue," consequently, whatever may be its general force elsewhere, is here clearly a word of purchase, and the "issue" of the life-tenants, (the daughters of the declarant,) whether they be descendants generally, or children, take as purchasers. 1 Fearne on Contingent Rem., 106. 2 Fearne on Contingent Rem., ch. 13, sec. 505, and the whole chapter. Horne [**7]  vs. Lyeth, 4 H. & J., 439. Doe dem. Cooper vs. Collis, 4 Term, 299. 13 Md. 424, Tongue vs. Nutwell. 15 Md. 190, Simpers vs. Simpers.

The ordinary meaning of the word "issue" undoubtedly is descendants; it is a term of comprehensive import, but the theory of the appellants is, that in this deed it was used as synonymous with children. This view is conclusively established by that parenthetical clause of the deed, which declares that the children or child of any deceased daughter shall take the portion which their or its parent would, if living, be entitled to; also by the terms of the last clause, which provides, "that from and after the death of all the aforesaid daughters, &c., then for the use of all the issue of all the daughters, and their heirs, in fee-simple." Why use the words, "heirs, in fee-simple," if the previous word, "issue," of itself, was designed to have the comprehensive meaning which must be given to it in order to support the opposite theory? No other view reconciles, in this respect, all the clauses of the deed, and were there even no authority for it, it would commend itself most readily to the judgment of the Court. It will be found, however, abundantly [**8]  supported by the cases. Indeed, this point seems hardly open to dispute, for it will be perceived, on reference to the suggestions of the solicitor of the appellees, the Snowdens, that he uses the words, "issue or children," throughout as synonymous. Adams vs. Law, 17 Howard, 422. Carter vs. Bentall, 2 Beavan, 557. Swift vs. Swift, 8 Simon, 168. Fitzgerald vs. Field, 1 Russell, 430. Needham vs. Smith, 4 Russell, 318. Ridgeway vs. Munkittrick, 1 Drury & Warren, 84. Peel vs. Catlow, 9 Sim., 373. Jennings vs. Newman, 10 Sim., 223. Tawney vs. Ward, 1 Beav., 563. Winn vs. Fenwick, 11 Beav, 438. Campbell vs. Sandys, 1 Schoales & Lefroy, 281. Sibley vs. Perry, 7 Vesey, 526, 528, 529. 2 Jarm. on Wills, 353, 354, 355. Pruen vs. Osborne, 11 Simons, 132, 137. 5 Barn. & Cress., 856. 12 Eng. C. L. Rep., 393, Wright vs. Trebor.

The effect of this is to give to the children of the life tenants, vested remainders in the property in question, to take effect in possession upon the death of the longest liver of the daughters. So long as any one of the said daughters survives, she and the children of each of her deceased sisters receive the income arising from the property; such children, under the [**9]  express limitation of the deed, to take the share of such income which their respective parent would, if living, have taken; that is to say, during the life of the Misses Hudson, they each receive one-fourth of the income from the property: Mrs. Fitzhugh, representing all the "issue" (three children) of her mother, Mrs. Pottinger, receives one undivided fourth for life, and the Snowdens, representing the "issue" (one child) of Mrs. Nicholls, receive the other undivided fourth for life. In this manner, during the life of any of the daughters of the declarant, the estate is held.

If we are right in these views, it follows--first, that "issue" means children; and second, that the "issue" take, as purchasers, vested remainders in the property in question --such vested remainders to take effect in possession upon the death of the last survivor of the life tenants, and being liable to open and let in, during the pendency of the life estate in the daughters, after-born children of any of the daughters. The persons who are to take, and the nature of their estate, being thus established, the next inquiry is, how and in what proportions the property is to be divided among them under the [**10]  clause of the deed, which declares, that "from and after the death of all the aforesaid daughters of the said Margaret Dorsey, then for the use and behoof of all the issue of all the daughters of the said Margaret Dorsey and their heirs, in fee-simple?"

It is obvious, from the very strong language used by the declarant--"from and after the death of all," &c.,--that she designed, upon the happening of that event, to make an entirely new order of distribution. All the class entitled to take--viz., the "issue" (children) of her daughters --stood to her in precisely the same degree of consanguinity; they were all her grand-children, equally objects of her bounty. The "issue" of her daughters, as they successively came into existence, being entitled to vested remainders as a matter of legal construction, were competent to dispose of such vested estate by deed or will, and of course, therefore, in case of the death of any of them, without making any such disposition, before the final destruction of the life estate by the death of the last of the daughters of the declarant, the right heirs of such deceased "issue" would receive the interest of such deceased "issue."

The declarant,  [**11]  after providing for her daughters, goes on to provide for all the issue (children) of all her daughters, as one class, without distinction among them, and she does this by words of purchase, which constitute them the source of a new descent. Under such a provision, they clearly take per capita and not per stirpes, unless it is qualified by the language of other parts of the deed.

And it is accordingly contended, on behalf of the Snowdens, that our construction cannot be adopted, because it conflicts with the apparent intention of the declarant, as derived from the preceding clause of the deed, that the children or child of any deceased daughter should take the portion their or its parent would, if living, be entitled to." But it is obvious that this clause was designed to apply solely to the "limitation of the estates to the daughters for their lives." It is, as the solicitor for the Snowdens, in his instructions to the auditor, himself admits, more immediately connected with that limitation; and no one can read the deed without perceiving that the declarant had in her mind two distinct provisions: one as to the income during the life of the longest liver of the daughters, and [**12]  the other as to the property itself, "from and after the death of all the daughters." The rule is, that the intention of the declarant, as gathered from the terms used by her in her deed, construed according to well settled principles, is to govern. Now we look in vain for any manifestation of an intent that this "clause should be associated with and control, in construction, the ultimate limitation over to the issue of all the daughters and their heirs, in fee." On the contrary, the opposite intent is plainly deducible from the omission of the clause in the ultimate limitation, and its insertion in the first limitation, in an instrument carefully prepared, and by a skillful hand. Involving, as the construction on the other side would, a disregard as well of the punctuation as of the collocation of the clause in the deed, and also making, as its natural effect, one grand-child, (Mrs. Snowden,) equal to three grand-children, (Mrs. Fitzhugh, Mary B. Pottinger, deceased, and John H. Pottinger,) it ought not to be adopted unless it distinctly appears that such was the purpose of the declarant. Suppose, as a means of testing this question, that all four of the daughters of the declarant [**13]  had married and had issue or children --Mrs. Nicholls, one; Mrs. Pottinger, three; Sarah Hudson, four; Rebecca Hudson, six. The rule sought to be established by the solicitor for the Snowdens would give to the one child of Mrs. Nicholls precisely as great an interest as would be received by the six children of Rebecca. The probabilities, so far from being in favor of such an intention on the part of the declarant, would rather seem to be directly the reverse; and it would require the most unmistakably clear and explicit language in the context to induce the Court to change and qualify the natural and ordinary meaning of the last clause of the deed, by giving to it such an interpretation, especially when that interpretation would be in disregard of the general rule of law, broadly laid down by the whole current of authorities in such cases.

When, in addition to this, we come to examine closely the words used by the declarant, "then for the use of all the issue of all my daughters, and their heirs, in fee-simple," it is difficult to resist the conviction that she designed them to take in equal proportions, or per capita.

In support of these views, we refer to the following [**14]  authorities: Davenport vs. Hanbury, 3 Vesey, 257. Barnes vs. Patch, 8 Vesey, 607. Lady Lincoln vs. Pelham, 10 Vesey, 176. Leigh vs. Norbury, 13 Vesey, 340. Butler vs. Stratton, 3 Brown Ch. Rep., 369. 2 Powell on Devises, 303 & 330, 331, side. 22 Law. Lib., 161, &c. Campbell vs. Wiggins, Rice's Eq. Rep., (S. C.,) 10. Wessenger vs. Hunt, 9 Richardson Eq., 471, 472, Maddox vs. The State, 4 H. & J., 540. Dyer vs. Dyer, 1 Mer., 414. Lugar vs. Harmon, 1 Cox, 250. Lark, et al., vs. Linstead, 2 Md. 420. Keerl & Fulton vs. Fulton, 1 Md. Ch. Rep., 532. Boulton vs. Beard, 27 Eng. Law & Eq. Rep., 421. Stillinger, Ex'r of Riddlemoser, vs. Riddlemoser, decided in this Court in 1843, but not reported. See Lib. R. W. G., No. T., folio 12.

Robert J. Brent, for the appellants, Penn and Mitchell:

During the continuance of the life-estate, the grandchildren of M. Nicols take part of the annual rents, per stripes. The words "children" and "issue," are, in this trust, synonymous. 2 Jarman on Wills, 375. In this case the rights of all issue now living, are vested sub modo, that is, liable to shift or fluctuate, until the life-estate expires, and the fee-simple interest becomes fixed, absolutely [**15]  and unchangeably. 4 Kent Com., 205, 206. This is not a common law conveyance, but the legal title remains in Graham until each use successively arises, and there seems to be no legal estate in the remainder-men until after the death of the surviving tenant for life. Roe Dem Wilkinson vs. Tranmarr, Welles Rep., 682. Doe Dem Dyke, vs. Whittingham, 4 Taunt., 22. Watk. Conv., 235. Wilk. on Conv., 146. 4 Cruise's Dig., 100, sec. 3. We therefore say, that this is no case of a vested remainder, but merely of a future use, to vest at the death of the surviving tenant for life. The question is new and difficult, but we hold that the distribution is to be among all the issue living at the time of distribution, per stripes, and not per capita. 3 Cruise's Dig., 355, secs. 26 and 27. Fearne, 106. 4 Kent, 389 and 390. We see no reason why a distribution of the revenues during life should be made to the issue of a deceased parent, per stirpes, and a different principle applied to the fee-simple distribution. Alder vs. Beall, 11 G. & J., 123.

The final distribution of the property in this case, is postponed until the death of the surviving daughters of Margaret Dorsey, when the distribution is [**16]  to be made among a class of individuals, viz., all the issue of all the daughters of Margaret Dorsey, as described in both of the settlements, and their heirs, in fee-simple. In such a case, the time of distribution fixes the vesting of the interests among the persons in esse at the time of the distribution. 1 Rop. Leg., 54. Andrews vs. Partington, 3 Bro. Ch. Rep., 402 and 404. Hughes vs. Hughes, Ibid., 435. Barrington vs. Tristram, 6 Ves., 345. Whitebread vs. St. John, 10 Ves., 152. Hughes vs. Hughes, 14 Ves., 258. 2 Jarm. on Wills, 714 and 726. 1 Rop. Leg., 589. 2 Wil. on Exrs., 982. Fleetwood, et al., vs. Fleetwood, et al., 2 Dev. Ch. Rep., 222. 2 Cruise's Dig., 269, sec. 24.

This, then, is a case where no right to the contingent remainder can vest, until the expiration of the life-estate, an event in futuro. The effect of this is to overthrow all the mortgages which have been executed, so far as they absorb the proceeds of the real estate, and are covered by the exceptions of Penn and Mitchell. The contingent remainder, which may vest in Richard N. Snowden, the mortgagor to Penn and Mitchell, is assignable in equity before it vests, and therefore we have the right to except.  [**17]  2 Cruise's Dig., 439. 3 Lead. Ca. in Eq., 307, 308. Redfield on Railways, 500.

The following authorities are referred to as further illustrating the meaning and use, in cases like this, of the words "children," "issue," "heirs," &c. 2 Jarm. on Wills, 83 and 375. Young vs. Robinson, 11 G. & J., 328. 2 Will. on Exrs., 982 and 999. Ware, et al., vs. Richardson, 3 Md. 544, 545. Ridgaway vs. Munkittrick, 1 Dr. & Wr., 84. Barnes vs. Patch, 8 Ves., 606. Dominick vs. Sayre, et al., 3 Sandf., 555.

The intention is to be gathered, in cases of wills, from the whole context of the will. Dashiel vs. Dashiel, 2 H. & G., 127. The intention that the issue shall take per stirpes, in one part of a will, presumptively guides in the final distribution. Rowland vs. Gorsuch, 2 Cox, 187. 16 Beav., 435. 1 Coll., 365. 1 De G. & Sm., 355. 2 Will. on Exrs., 1363, 1364. The result, therefore, is that Richard N. Snowden's contingent or vested right to the property, at the period of distribution, was assignable to Penn and Mitchell, and when that period arrives, he will take as one of the issue then living.

F. H. Stockett, for the appellees:

The word "issue," when not restrained by the context,  [**18]  is co-extensive and synonymous with descendents, comprehending objects of every degree. Haydon vs. Wilshere, 3 Term R., 372. Davenport vs. Hanbury, 3 Ves., 258. Horsepool vs. Watson, 3 Ves., 383. The word "issue," unconfined by any indication of intention, includes all descendants, and they take per capita. Leigh vs. Norbury, 13 Ves., 340. 2 Jarm. on Wills, 33. Intention is necessary to limit the sense of the word "issue" to children. 5 Munf., 440. 2 Jarm. on Wills, 37. Sibley vs. Perry, 7 Ves., 532. Woodland vs. Wallis, &c., 6 Md. 152. The word "children," may be construed to mean "issue," instead of abridging the word "issue" to children. Wyth vs. Blackman, 1 Ves., Sr., 197. 2 Jarm. on Wills, 37. Dalzell vs. Welch, 2 Simon, 319. If no children are in being, grandchildren would come in under the word "children," and may be thereby described. Crooke, et al., vs. Brookling, et al., 2 Vern., 106. "Issue," in a will, has been held, on the context, to have two different meanings. Carter vs. Bentall, 2 Beav., 551. Provision by deed for "children," is sometimes held to extend to grandchildren and great-grandchildren, and they take per stirpes, and not per capita. Wythe vs. Thurlston,  [**19]  Ambl. R., 555. Gale vs. Bennett, Ambl. R., 681. Royle vs. Hamilton, 4 Ves., 437. Chilton vs. Henderson, 9 Gill, 432. Ware vs. Richardson, 3 Md. 505. Torrence vs. Torrence, 4 Md. 11. Tongue vs. Nutwell, 13 Md. 415. 4 Kent Com., 345, (note d.) Id., 419. Needham vs. Smith, 4 Russ., 318. Cutter vs. Doughty, 23 Wend., 522. Ruff vs. Rutherford, 1 Bailey Eq. Rep., 7. Hallowell vs. Phipps, 2 Whart., 376. Dickinson vs. Lee, 4 Watts, 82. Pope vs. Pope, 9 Eng. L. & Eq. Rep., 193. Bryan vs. Mansion, 15 Eng. L. & Eq. Rep., 455. Re Winch's Trust, 27 Eng. L. & Eq. Rep., 375. Levering vs. Levering, 14 Md. 30.

Thos. S. Alexander, on the same side:

The intent of the party governs in the interpretation of every instrument of writing. Where technical expressions are introduced, they receive, ordinarily, their technical construction; and the more readily where they are found in deeds and other instruments made inter vivos. But even in deeds, terms of art may be controlled by the clear expression of a different intent. In Budd vs. Brooke, 3 Gill, 198, 234, the Court of Appeals say: "In construing a grant, it is the duty of the Court first to ascertain what the parties intended [**20]  should be effected by it. And that intention being collected from an inspection of the grant itself, it is the duty of the Court to give it such an interpretation as will effectuate that intention, provided the terms and expressions used in the grant will admit of such construction."

The word "issue" is susceptible of such various meanings that it can hardly be treated as a technical expression. If used in a deed, without any explanation from the context, it is a word of purchase; but it may be used as a word of limitation. Ordinarily, it embraces descendants in every degree; but it may import children only. "Children" usually signifies descendants in the first degree; but it may be used to include grandchildren and descendants yet more remote. "Issue" may, therefore, mean "children;" and "children" may be the synonym of "issue." In any and every instrument, therefore, those words are to receive just such construction as may best advance the intent of the party.

There is nothing, therefore, in the letter used to prevent the Court from gratifying the intent of Mrs. Dorsey, in declaring the uses of this deed. What, then, was her intent? She intended to provide equally for her [**21]  daughters, and for the descendants of her daughters--giving to the descendants of a daughter a child's part of the estate. There is nothing on the face of the deed from which we can presume an intent to prefer one daughter at the expense of another. In such case equality is natural equity. The same rule of natural equity gives the mother's part to her descendants. The principle of representation was parcel of the common law; and is engrafted into our Acts to direct descents, and for distribution of an intestate's estate. The rule of positive law concurs, therefore, with the dictate of natural equity; and must govern in the construction of this deed, in the absence of a contrary intent clearly expressed on its face.

The limitation is to the daughters and their issue; and all that follows is explanatory of this limitation.

Thus it is declared, that the uses shall enure in the first place to the daughters "and the survivors and survivor of them, and the issue of any of them who shall have died," during the life of the longest liver of the daughters; and next, from and after the death of all the daughters, to "all the issue of all the daughters * * and their heirs, in fee-simple.  [**22]  "

Now I agree with the appellants, that the word "issue" in the last clause, means the same with "issue" in the preceding clause. The combined effect of the two clauses is, therefore, to enlarge the estate of the issue, which by the first clause was pur auter vie, into a fee-simple.

The appellants insist, that by the limitation to "the issue," is meant "children;" that is, the descendants in the first degree from the daughter. They found this construction on the clause, "the child or children of any deceased daughter *** to take the part or portion which their or its parent would, if living, be entitled to." Adopting this interpretation as correct, the conclusion will be, that the uses are limited to the daughters for life, with remainder to their children, in fee. If "issue" in the first clause is equivalent to "children," and identical with "issue" in the last clause, no other conclusion is admissible.

But here the appellants would distinguish. The children of a daughter succeed to the estate pur auter vie per stirpes; to the estate in fee, per capita. They refer to the clause last quoted for the purpose of showing that "issue" means "children," but they repudiate [**23]  the authority of that part of the clause which prescribes the manner in which the "issue" or "children" shall take. Now I insist that this clause in question is to be read in association with, and as part of, the last clause limiting the fee; or they are to be treated as altogether distinct and independent of each other. You cannot connect them for some purpose, and separate them for other purposes. The second clause is undoubtedly to be read with, and as part of, the first clause, and the effect of such reading is to convert "issue" into "child or children taking per stirpes." When, therefore, it is insisted that "issue" in the last clause, is to be construed as "issue" in the first clause, it follows that "issue" means not simply "child or children," but "child or children taking per stirpes."

When a word of art is used with other words explaining or qualifying its meaning, and the same technical word is used in a subsequent part of the instrument, nothing would seem to be more reasonable than that the words or explanation should be read in construction with the word thus repeated. And, in practice, nothing is more familiar than this repetition or transposition of words, and [**24]  with a view to give full effect to the intent, to read the whole clause thus, (excluding unnecessary verbal repetitions,) "to the daughters, and the survivors and survivor of them, and the issue of any of them who shall have died during the life of the longest liver of the daughters; and from and after the death of all the daughters, then to all the issue of all the daughters, and their heirs, in fee-simple; the child or children of any deceased daughter to take the part or portion which their or its parent would, if living, be entitled to.

The appellants object that this construction violates the letter of the last clause, which limits the fee to "all the issue of all the daughters." I answer that "all the issue" means no more than "the issue;" and "all the daughters" no more than "the daughters." And that (if "issue" means "children") "all the children of all the daughters" will enjoy the whole estate under a limitation to them, per stirpes, just as effectually as they would or could enjoy it, if it had been given to them per capita.

If "all the issue of all the daughters" are, by virtue of the concluding limitation, to take the fee-simple per capita, they must take jointly [**25]  with the usual incident of survivorship. And if the "issue" means "children," this fee originally vested in the three children of Mrs. Pottinger, and the only child of Mrs. Nicols, as joint tenants. Upon the death of one of the children of Mrs. Pottinger, her interest survived to her surviving brother and sister, and the child of Mrs. Nicols. And upon the death of this child of Mrs. Nicols, (Mrs. Snowden,) her interest in the estate survived to the surviving children of Mrs. Pottinger; and thenceforth the family of Mrs. Nicols were deprived of all hope of sharing in any manner in the distribution of the estate.

This consequence (unjust as it would be) is, I repeat, inevitable, if the distribution is to be made amongst "all the issue of all the daughters per capita." There is nothing outside of the explanatory clause, which gives color for an instant to the idea that the issue taking per capita, can take as tenants in common. And if the concluding limitation of the fee is to be read with the aid of the explanatory clause, no doubt will remain that the issue must take the fee (as it is conceded they take the estate per auter vie) per stirpes.

Whether, therefore, this last limitation [**26]  is to be read with or without the aid of the explanatory clause, we shall have sufficient evidence of an intent on the part of Mrs. Dorsey to give the estate to the "issue" or "children" of her daughters by families.

In Levering vs. Levering, 14 Md. 30, the rents and profits of an estate were given to two daughters. In the event of the death of either, her share of the rents and profits to go to her heirs during the life of the survivor. And on the death of both, the estate to be sold, and the proceeds to be distributed unto and amongst the heirs and representatives of the daughters, and their heirs. The differences between the two cases are verbal merely. In one case, the tenants for life are four in number; in the other, two. In the one, the limitation over is to "issue;" in the other to "heirs." In Levering vs. Levering, the Court of Appeals construe "heirs" to mean "children;" as in our case we give like construction to "issue." The Court advert to the first clause, and thus conclude: "Having there clearly shown an intention to give to the children of one daughter the precise one-half of the estate which their mother had, no matter which of the daughters of the testatrix [**27]  should die first, whether it might happen to be the one leaving the largest or smallest number of children, it would seem right to suppose the testatrix had a like intention of giving to the children of each mother the share 'of the mother, when providing for the death of both of them.'"

This inference of intention was deemed to be so clear as to render it unnecessary to sustain it by reference to authorities. It would not become me, therefore, to enter upon a task which the Court declined. Nor can I presume to enlarge on the reasons by which the decision of the Court is sustained. I must content myself with suggesting that, as in Levering vs. Levering, there were only two daughters tenants for life, and the final distribution was to be made between the families of the two, the question of joint tenancy and its effect in construction, could not possibly be raised in that case. The present case is, therefore, stronger than in Levering vs. Levering, by the influence which may be given to the argument, that the effect of allowing a distribution amongst "all the issue of all the daughters" per capita, will be not to lessen the interest which the Snowdens would otherwise take, but [**28]  to exclude that family altogether from sharing in the estate.

William Schley, for the appellants, in reply:

It is erroneously assumed, in the argument of the appellees, that we associate the clause, "the child or children of any deceased daughters *** to take the part or portion which their or its parent would, if living, be entitled to," with the ultimate limitation in the deed for some purposes, and reject such association for other purposes. So far are we from doing this, that we have expressly contended that this clause, by its collocation, by the ordinary grammatical construction of the sentence, and by the apparent intention of the declarant, belongs exclusively to the first limitation. Our proposition is, that the declarant having, in the first limitation, clearly indicated that she uses the word "issue" as meaning "children," that word, when found in other parts of the instrument, must have the same meaning, unless a contrary intention is shown. This is a well established rule, in the construction of deeds and other written instruments. Its object is to fix the meaning of a "word" or "words" used more than once in a written instrument, and it gives no countenance [**29]  to the idea, that the whole of a provision which, in any given clause of such instrument, has enabled a Court to fix the sense in which a particular word is used, shall be incorporated in every clause in which that word may be afterwards repeated. To do this, would be, instead of interpreting an instrument, to make one for the parties, and would lead to what is intimated by the argument of the appellees, viz., the breaking up and transposition of the provisions of the deed.

It is next urged, on behalf of the appellees, that if the last limitation of the deed is not explained and controlled by the provision in the first limitation already quoted, then the children of Mrs. Pottinger and Mrs. Nicols took the fee in joint tenancy; and, consequently, when Mrs. Snowden died, her share passed to the surviving joint tenants, and her children, the appellees, were left unprovided for, and are not entitled to any part of the fund now in Court for distribution. This unjust and unreasonable result (based on the assumption that we affirm a joint tenancy) is relied upon to shew that our construction of the last clause of the deed must be wrong. Practically, the question whether the "issue" took [**30]  as joint tenants, or tenants in common, is not now of importance, because Mrs. Snowden and Mrs. Fitzhugh, each of them, mortgaged their respective interests in the property, and thus severed the joint tenancy, if it ever existed. York vs. Stone, 1 Salkeld, 158. Simpson vs. Ammons, 1 Binney, 176, 177. But is it true, that if the "issue" (children) take per capita under the last clause of the deed, they must be held to take as joint tenants? We have not so affirmed, and we maintain, indeed, the contrary theory. In this State, since the Act of 1822, ch. 162, a joint tenancy can only be created by express words, and the question, as to such a tenancy, arises in this cause only in relation to the deed of 1817, and not as to that of 1827. Independently of the said Act, this Court has said, in the case of Chew vs. Chew, 1 Md. 171, that "the Courts of Maryland are imperatively required, by a long course of judicial decisions in this State and elsewhere, to view with disfavor estates in joint tenancy, and to give the widest and most liberal construction to testamentary instruments, in order to defeat them, whenever it may be done." Even in England, Courts of Equity take, to use their own [**31]  language, "a latitude" for the purpose of defeating such estates. With this disposition of the Courts, or, indeed, without it, we think there is enough in the last clause of the deed to shew that "the issue must take as tenants in common," and that otherwise the evident intention of the provision will be defeated. The limitation is to all the issue and their heirs, and it cannot properly receive the same construction as a limitation simply to the issue and their heirs. Some meaning must be given to the word "all," which cannot be arbitrarily rejected, as of no significance, as the argument for the appellees proposes; and we contend that "all," in the position in which it is here found, means "each one," and that the limitation to "all the issue and their heirs," means to "each one of the issue, and the heirs of each one," so that the heirs of all may take. If this be so, there is no joint tenancy. See Bambaugh vs. Bambaugh, 11 Serg. & Rawle, 191. Galbraith vs. Galbraith, 3 Serg. & Rawle, 392. Again, this Court has said, in the case of Chew vs. Chew, already referred to, that "to constitute an estate in joint tenancy, there must be unity of interest, unity of title, unity of time, and [**32]  unity of possession." Now, in this case, where the remainder was to open to let in children as they were born, the estate could not vest in all the children at the same moment, and the unity of time, therefore, could not exist; and while we admit that wide exceptions to this unity are to be found in some of the old English authorities, we say that those exceptions would not now be sustained or tolerated by the Courts of this country, where estates in joint tenancy have been, by the several States, either abolished entirely, or restricted to cases of creation by express words. To defeat an estate so repugnant to our ideas of justice as a joint tenancy, the least our Courts can do, is to hold strictly that it shall not exist, except in those cases where the four essential elements of its nature are found in combination. Besides, the words "all the issue and their heirs," without more, necessarily import that all the issue take the fee-simple equally, and it has been frequently held that the word "equally," without any words of division, will, in a devise, make the devisees tenants in common. 2 Powell on Devises, 371, and cases cited. The same rule would apply to a declaration of uses.  [**33]  

The notion of the existence of a joint tenancy is suggested, for the first time, in the printed argument. It is not mentioned in the brief of the appellees; nor was the notion even incidentally put forth in the oral argument. It is now invoked as a dernier resort. But, in truth, there is not the slightest ground for the theory. It is really begging the question. If the parties who are entitled are to take per capita, then each one will take a several interest; they will not take one interest as a body or class. There could be no persons who could take as issue of all the daughters. "By necessity of reason," they must, as Littleton says, take "as tenants in common." Co. Litt., 184, a. Elizabeth Huntley's case, Dyer, 326, a. Cook vs. Cook, 2 Vern., 645. Perry vs. White, Cowp., 777. It is not necessary to quote Aristotle, as was done by the learned apprentice in the case of Sharington vs. Strotton, 1 Plowden, 303, to show that every child must have a father, as well as a mother. The four daughters could not, de facto or de jure, be parents of the same children. They would have several families; their issue, if any, would be of the daughters, respectively. Now, where persons take [**34]  as issue of a particular body, they would take jointly, unless there were apt words to shew that they were to take severally. So, where the limitation is made to persons who are to bear a designated relation to a particular party, or to particular persons who are married, or who may lawfully intermarry, there the persons take as a class, because of the identity of relation to a named person or persons. If, in this case, the remainder had been limited to "my grand-children," there the declarant would have made herself the propositus, and all grand-children of the declarant, by reason that she made herself the propositus, would have composed a class, to take per capita or per stirpes, according to the intention of the deed. And it is in cases of contingent remainders, where the estate is only to vest in persons, who shall sustain a specified relation to some designated person or persons, at the happening of the contemplated contingency, that this doctrine of taking as a class most generally applies. In such case they will take, either per capita or per stirpes, according to the intention to be gathered from the deed or will. But we rely on the doctrine, so plainly stated in 2 Powell [**35]  on Devises, 330, 331: "Where a gift is made to the children of several persons, whether it be to the children of A and B, or to the children of A, and the children of B, they take per capita, and not per stirpes." And the reason is, that although there are two classes, in a certain sense, yet the children are to take as designated individuals, not as classes; each one is to take in his own right, as purchaser, and not under or through, or as the representatives of their respective parents; and it is inconsistent with the notion of separate individual rights, that they should all take one interest. As each one has a right, personal and individual, so each has an estate, separate and distinct from all the others. We hold the true exposition of the deed to be all the same as if the declarant had said, "to each and every child of any and of every of my daughters." The true rule is stated in note 3, to Davenport vs. Hanbury, 3 Vesey, 260, and which we quote: "Whether, under a devise, children are to take per capita or per stirpes, depends on the previous question, whether they are to take in their own right, or by representation. In the first case, they take per capita." We agree that issue,  [**36]  as used in the declaration of uses, means immediate descendants. We also agree that the remainder, expectant on the determination of the particular estate, vested immediately in the one child of Mrs. Margaret Nicols, (afterwards Mrs. Snowden,) and in the one child of Mrs. Isabella Pottinger, (now Mrs. Fitzhugh,) and that as the two after-born children of Mrs. Pottinger came into being, the vested remainder opened to let them in. This can constitute no case of joint tenancy, for it lacks one of its essential elements--unity of time in the vesting of the estate. The time when the estate of Mrs. Fitzhugh and Mrs. Snowden vested in them as purchasers, is certainly not identical with that on which the estate of Dr. Pottinger and his deceased sister, subsequently born, vested. Here we separate. We say that the remainder opened to let them in, as individuals, on the same footing and with the same rights as the two children who were living when the declaration was made. The counsel for the appellees insist that it opened, indeed, to let them in; but that the remainder then vested in them unequally, that is to say, per stirpes; the one moiety, which had originally vested in the child of Mrs.  [**37]  Nicols, revested in that child, as the child of Mrs. Nicols, in the same right and plight as if there had been no opening to admit these after-born children of Mrs. Pottinger; and that the other moiety, which had originally vested in the one child of Mrs. Pottinger, living at the date of the declaration, revested in that child and her brother and sister, as children of Mrs. Pottinger. No case has been cited in argument which, in our judgment, sanctions this qualification to the limitation. In all the cases cited, there were some controlling words in combination with the limitation. "Several," "respective," "heirs," "representatives," or some other significant language, will be found in every one of the cases cited and relied on by the appellees.

In connection with this point, we beg leave to cite the following paragraph from the opinion of Lord Hardwicke, in the case of Rigden vs. Vallier, 2 Vesey's Cases, 258: "But there are other reasons in the present case greatly strengthening it in favor of the plaintiff; first, this was a father providing for his children, and must be construed, therefore, to make a provision for their families; and it is not reasonable to think he should [**38]  make it so that if one died, her provision should survive to the other, which is the consequence of a joint tenancy, and cannot be supposed to be his intent."

The argument for the appellees next relies on the case of Levering vs. Levering, 14 Md. Rep. That case establishes no general principle or rule of construction, but merely ascertains and decides what was the intention of the testatrix in the will then under examination, and the reasoning of the Court, by which the intention was then arrived at, is utterly inapplicable to the case now before the Court. In Levering vs. Levering, the first clause of the devise or bequest gives the half of the rents, issues and profits which had been enjoyed by the daughter first dying, to her heirs. The testatrix had "stocks and leasehold estate," but "no realty," and it is clear that, under this first clause, the whole interest or estate in the one-half devised to the said daughter for life, on her death passed to her heirs absolutely. When, therefore, by the second clause, a power is vested in the executor to sell the property on the death of the surviving daughter, that the proceeds may be distributed to and amongst the heirs and representatives [**39]  of the two daughters, no new estate is given to the children of the daughter first dying; and as to them, it is simply the sale of property of which one-half already belonged to them, without any provision in reference to the distribution of proceeds sufficiently clear or express to revoke the first devise and change the share which they were to take. This being the case, it was very justly to be inferred that the children of the daughter last dying, were to take the other half. Accordingly this Court says: "Having there (in the first clause) shewn an intention to give to the children of one daughter the precise one-half of the estate which their mother had, no matter which of the daughters of the testatrix should die first, **** it would seem right to suppose the testatrix had a like intention of giving to the children of each mother the share of the mother, when providing for the decease of both of them." Is not this reasoning clearly founded on the assumption that the children of the daughter first dying took an absolute and not a life estate under the first clause? If that clause had expressly given the children an estate pur auter vie, and had been followed by a second clause [**40]  limiting the fee-simple in different language, as in our deeds of 1817 and 1827, it is manifest that this reasoning of the Court would have no applicability. In such a case it could not be said, that because a life estate was limited in a particular way to the children of the daughter first dying, therefore the children of the other daughter, or even those of the daughter first dying, must take the fee-simple under the second clause in the same way. Not only has the reasoning of the Court no application to our case, but the "verbal differences," as they are termed in the appellees' argument, between the will in Levering's case and the deeds in the case before the Court, are so numerous and important, that while there is some general similarity between the two cases, they differ in almost all the particulars by which the intention of the instruments is to be ascertained. In the deeds now under construction, the first clause, in which the provision that children are to take the shares of their parents is found, gives expressly only an estate pur auter vie, and the second clause gives a distinct and different interest, viz., the fee-simple to "all the issue of," &c., omitting such a provision.  [**41]  This Court cannot say, that because the declarant gave a life estate in a particular mode, she must have intended to give the fee-simple in the same mode. Probable or possible reasons or motives which may have influenced her in providing equally for the children of her daughters, as she had provided equally for the daughters themselves, during their lives, were sufficiently suggested during the oral argument, and will not be repeated here. There was nothing unreasonable in adopting equality as her guide in providing for her grand-children. The deeds, which by the natural and the technical construction of their language give the fee-simple to the issue per capita, were carefully and skilfully prepared; why, then, is the language of the deeds to be tortured or transposed, for the purpose of defeating a provision in itself reasonable and just? Nothing could call for or justify such a course, but a controlling and clearly declared intention of the grantor, and we confidently deny that there is any thing in the deeds to indicate an intention to give the fee-simple of the property to the children per stirpes.

The case of Levering vs. Levering, as it seems to us, was clearly a case in [**42]  which each daughter was made the stirps of her own children; and her children were to take as her representatives. The word "heirs" is there found. Those children were to take as two several classes; it is not a case in which each child had a several and individual right, as here. And although it is true that the learned judge, in the opinion filed in that case, does invoke the antecedent provision, as to the income, as a reason for construing the limitation of the corpus in the same way, per stripes; yet it would be doing injustice to the Court, and to the learned judge who prepared the opinion, to hold that an illustration (very proper in the particular case) was intended as the annunciation of a new rule of interpretation, of universal application, in the construction of devises and deeds. We think that the result at which the Court arrived in Levering vs. Levering, was inevitable; because the children of the daughters, in that case, were manifestly entitled as the representatives of their respective mothers.

In the case now under consideration, the provision as to the income, and the limitation as to the corpus, are not, however, identical. In this respect it differs from [**43]  Levering vs. Levering. In our case, Mrs. Nicols and Mrs. Pottinger are both dead, leaving issue; and the child of Mrs. Nicols, on her death, became entitled to one-fourth of the income, and the children of Mrs. Pottinger to one-fourth. Each of the unmarried daughters is entitled to one-fourth of the income. But when those unmarried daughters shall have departed this life, what is to pass under the limitation of the remainder? Not one-fourth and one-fourth, but the whole four-fourths--the entire estate. The children, therefore, are to take, not the precise quantity of estate and quantum of interest vested in their mothers, but they are to take as well what their aunts held for life, as what their mothers held for life. It is impossible, therefore, we say, that they take by representation of their respective mothers, as they take under the limitation not only more than their mothers ever held, but take, as to one-half of the corpus, that which never could, per formam doni, have become vested in their mothers, in the events that have occurred in the family of Mrs. Dorsey.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*224]  GOLDSBOROUGH,  [**44]  J., delivered the opinion of this Court:
The bill of complaint in this case, was filed in the Superior Court of Baltimore city, in 1857, by the appellees, to obtain a decree for the sale of certain real estate lying in the city of Baltimore, formerly belonging to Mrs. Margaret 

 [*225]  Hudson, who subsequently intermarried with John E. Dorsey.
The bill alleges that the property in question is of great value, not susceptible of division, and that it would be for the interest and advantage of all parties interested to sell it, and divide the proceeds between the parties entitled, according to their respective interests.
Upon the bill, answers and depositions, the Superior Court decreed a sale of the property as prayed, and no exception was taken to the action of the Court until the case was referred to the auditor, to state an account distributing the proceeds of sale.
The auditor, in the performance of his duty, designed to state an account as directed by the solicitors of Mrs. Fitzhugh, and also stated another account according to the view of the solicitors of the Snowdens.
These accounts are respectively marked B and C, in the record.
The solicitors of the parties in interest [**45]  agreed, in the Court below, as follows: "For the purpose of a speedy decision of the questions involved in the distribution, that a pro forma decree shall be passed by the Court, allowing the exceptions filed by the complainants to account B, reported by the auditor, and distributing the fund according to account C, prepared and stated by the auditor, in accordance with the instructions of the complainants' solicitor; it is further agreed, that the respondents, or any of them, or any of the parties appealing from said decree, may raise on such appeal any questions affecting their respective interests, which may arise under the account thereby to be ratified, and may maintain any objections thereto which could have been taken in this Court."
In conformity with this agreement, the Superior Court passed a decree, and from this decree an appeal was taken.

 [*226]  It becomes our duty, in settling the conflicting claims of the respective parties, to advert to the origin of those claims, as they are presented in the record of this case.
Mrs. Margaret Hudson, being seized and possessed of valuable real estate at and near the intersection of Baltimore and South Charles streets, in [**46]  the city of Baltimore, conveyed the same to William Graham, and his heirs, by deed bearing date the 11th day of August 1801, with power to Mrs. Hudson to declare the uses of this property, which, by deed dated the 10th day of May 1817, she did declare, as follows: "In trust, that William Graham shall hold the real estate for the use of Mrs. Hudson (then Mrs. Dorsey) during her life, and from and after her death, to hold all that three-story brick warehouse, at the south-west corner of Baltimore and Charles streets, for the use of Mrs. Margaret Nicols, the daughter of Mrs. Dorsey, and the heirs and assigns of Mrs. Nicols, forever, in fee-simple, and as to the remainder of said property, in trust for the use, benefit and behoof of the four daughters of the said Margaret Dorsey, namely, Sarah W. Hudson, Margaret Nicols, Rebecca Hudson, and Isabella Pottinger, and their issue, so that during the life of the longest liver of the said four daughters of the said Margaret, they and the survivors and survivor of them, and the issue of any of them who shall have died, be suffered and permitted to receive and take the annual or other rents and issues of the remaining portion of property mentioned [**47]  and recited in the deed to William Graham, and the same apply to their separate uses respectively, without being in any manner subject to the disposition, power or control of their respective husbands, or in any wise liable or bound for the payment of their debts, contracts, or engagements; the child or children of any deceased daughter of the said Margaret Dorsey to take the part or portion which their or its parent would, if living, be entitled to, and from and after the 

 [*227]  death of all the aforesaid daughters of the said Margaret Dorsey, then for the use and behoof of all the issue of all the daughters of the said Margaret Dorsey, and their heirs, in fee-simple."
Subsequently, on the 17th day of April 1827, Mrs. Nicols, together with William Graham, executed a deed for the property held by William Graham for the use of Mrs. Nicols, to John J. Donaldson, who, on the same day, reconveyed the same to Graham, in trust for the use, benefit and behoof of Sarah W. Hudson, Margaret Nicols, Rebecca Hudson, and Isabella Pottinger, and their issue, so that during the life of the longest liver of the said Sarah W. Hudson, Margaret Nicols, Rebecca Hudson, and Isabella Pottinger, they [**48]  and the survivors and survivor of them, and the issue of any of them who shall have died, be suffered and permitted to receive and take the annual or other rents and issues of the aforesaid property, and the same to apply to their separate uses respectively, without being in any manner subject to the disposition, power or control of their respective husbands, or in any wise liable or bound for the payment of their debts, contracts or engagements, the children or child of any deceased one to take the part or portion which their or its parent would, if living, be entitled to, and from and after the death of all the said Sarah W. Hudson, Margaret Nicols, Rebecca Hudson, and Isabella Pottinger, then for the use and behoof of all their issue, and their heirs, in fee-simple.
So that the whole of this property became vested in William Graham, for the use of the four daughters of Mrs. Dorsey, in the manner stated in the deeds of 1817 and 1827. All the four daughters survived their mother.
Sarah and Rebecca still survive, unmarried. Mrs. Nicols had one daughter, Ann Rebecca, who intermarried with Thomas Snowden, and died in her mother's lifetime, leaving the children named in the record.  [**49]  

 [*228]  The other daughter, Isabella, intermarried with Thomas B. Pottinger, and had three children, Sarah, who intermarried with Peregrine Fitzhugh; Mary B. Pottinger, born in 1818, and died between two and three years old; and John H. Pottinger, one of the defendants, born in 1821. No question is made as to the manner of distributing the profits of the estate during the lives of the survivors and survivor of the daughters. But the children of Mrs. Pottinger insist that, on the death of all the daughters of Mrs. Dorsey, the principal estate is to be distributed amongst the children of the daughters per capita; that is to say, one-fourth part to the children and heirs-at-law of Mrs. Snowden, who was the only child of Mrs. Nicols, one-fourth to each of the surviving children of Mrs. Pottinger, in their own right, and the remaining fourth part to those surviving children, as survivors or heirs-at-law of their deceased sister. On the other hand, the children of Mrs. Snowden claim that the distribution is to be made to the children of the daughter per stirpes; that is to say, one-half part to the family or descendants of Mrs. Nicols, and the remaining half part to the [**50]  family or descendants of Mrs. Pottinger.
By reference to the particular expressions used by the declarants, both in reference to the disposition of the rents, issues and profits, and in the disposition of the corpus of the estate, we find that the declarants use the word "issue;" and it justifies us in applying to that term, thus used, the rule, that technical words are to be construed more strictly in a deed or grant than in a will. In the latter, the word "issue" is not a technical expression, implying prima facie words of limitation, but will yield to the intention of the testator, to be collected from the words of the will. See 27 Eng. Law & Eq. Cases 375. In the former, it is otherwise. In Horne vs. Lyeth, 4 H. & J. 431, Judge Walter Dorsey very elaborately reviews this 

 [*229]  subject, and lays it down emphatically: "That the word 'issue,' in its natural and often in its legal sense, means 'children,' and is therefore a word of purchase, no one will question."
In this case it is conceded on both sides, that the words "issue" or "children" are used as synonymous. Considering the two clauses in the grants or declaration of uses, to which our attention [**51]  is directed, we are forcibly struck with the precaution taken by the declarants, in providing for the disposition of the rents, issues and profits. Specially connecting in that clause the issue or children with their parents, and making those parents not only the medium of enjoyment, but through them indicating the proportion to be enjoyed by their children. In reference to the corpus of the estate, the issue or children are aggregated into a class, with no relation to their parents which would indicate that the issue should take through them; and shows that the estates given to the children "were to be the ground-work of succession of heirs, or, in other words, the children were to be the termini for the succession to take its course from." See same case, 434. The terms of the grant, "to all the issue of all the daughters," entirely exclude the idea of a representative right through the daughters, and make that issue, or the children of the daughters, the immediate and equal recipients of the benefits of the grant.
We think that it was successfully contended by the appellants' counsel, that the children of Mrs. Snowden and Mrs. Pottinger took a vested remainder, dependant [**52]  upon a life-estate pur auter vie; that is, for the lives of the surviving aunts, or the survivor of them, subject, however, to open and let in any after-born child or children, to participate in the fee, and any who might be born during the life-estate of the aunts, or the survivor of them.
If, therefore, the issue of the daughters take in their 

 [*230]  own right, and not by representation, they take per capita. See 3 Vesey 260. The issue in this case, when considered as a class, is illustrated and sustained by the following quotation from 2 Powell on Devises, 330, 331: "Where a gift is made to the children of several persons, whether it be to the children of A & B, or to the children of A and the children of B, they take per capita and not per stirpes." It was contended by the appellees' counsel, that if the issue took the estate per capita, they became joint tenants with the right of survivorship. This would by no means follow, under the circumstances of this case; for it is conceded that children born of the daughters during the life of the aunts, would be let in to take a share of the estate, as in the case of John and Mary Pottinger,  [**53]  who were not born at the time of the execution of the deed of 1817, and there being a want of unity of time in the vesting of their title, one of the ingredients of joint tenancy is wanting. Beside this, the unity of title was severed by the mortgages mentioned in the record, and as to the deed of 1827, no joint tenancy can be held to exist, because of the operation of the Act of 1822, ch. 162, which provides that no deed, devise, &c., shall be construed to create an estate in joint tenancy, unless it is expressly provided that the property conveyed by such deed, &c., is to be held in joint tenancy.
The case of Levering vs. Levering, 14 Md. 30, was urgently pressed upon this Court, by the appellees, as demonstrative of the proposition, that the issue of the daughters, in this case, took the remainder of the estate per stirpes.
It may be conceded that, in some respects, there is a similarity in the two cases. This, however, is a grant, and that the case of a will, in which the Court sought to gratify the intention of the testatrix.
We find in the case of Levering, that the Court say: "Having there (in the first clause) shown an intention to 

 [*231]   [**54]  give to the children of one daughter the precise one-half of the estate which their mother had, no matter which of the daughters of the testatrix should die first, whether it might happen to be the one leaving the largest or smallest number of children, it would seem right to suppose the testatrix had a like intention of giving to the children of each mother the share of the mother, when providing for the decease of both of them."
It may, therefore, he well said, that the result at which the Court arrived, in Levering vs. Levering, was inevitable. Because, in construing the words of the will, the Court found the intention of the testatrix to be, that the children of the daughters should take the property as the representatives of their respective mothers.
In this case the words of the grant are not the same, and no such intention is expressed or to be inferred from the language employed. The corpus of the estate is not disposed of until the happening of the contingency of the death of all the daughters, and then it is given to all the children as a class, who must necessarily take per capita.
In our opinion, therefore, the rents, issues and profits are to be distributed [**55]  as follows: One-fourth to the children or descendants of Mrs. Pottinger, one-fourth to the child or descendants of Mrs. Nicols, and one-fourth each to Sarah Hudson and Rebecca Hudson, the two unmarried daughters of Mrs. Dorsey, during their lives. Upon the death of both Sarah and Rebecca Hudson, the children of Mrs. Pottinger and Mrs. Nicols will take the whole estate per formam doni, per capita; that is to say, after the payment out of the fund of the costs of suit in this Court and the Court below, Mrs. Margaret Fitzhugh, representing the issue of Mrs. Pottinger, is entitled to two-thirds of the proceeds of the property which sold for $ 40,000, and three-fourths of the proceeds of the property which sold for $ 60,000; and the Snowdens, representing 

 [*232]  the issue of Mrs. Nicols, are entitled to the other third in the first named property, and one-fourth of the proceeds of the latter.
The trustees are to be allowed, out of the proceeds of sale to which Mrs. Fitzhugh is entitled, the claim paid by them to the executors of John Johns. They are also to be allowed, out of the proceeds of sale to which the Snowdens are entitled, the claim paid by them to the Savings Bank of [**56]  Baltimore.
Penn and Mitchell are entitled only to the distributive share of Richard N. Snowden, which he acquired as heir-at-law of his mother, Ann Rebecca Snowden.
The share of Richard N. Snowden, to which he is entitled as heir-at-law of his sister, Ella Snowden, is not, in our opinion, embraced by the terms of the deed of mortgage from Snowden to Penn and Mitchell, as those terms are confined to "all the title and interest he" (Snowden) "may or will possess, either in his own right, or as heir-at-law of Ann Rebecca Snowden, by reason of all or any of the deeds, conveyances and declaration of uses" mentioned in the deed of mortgage.
In disposing of the claims of Turner, James and others, as attaching creditors of Richard N. Snowden, upon an attachment laid in the hands of the trustees, we are to determine whether the fund in their hands, for distribution, can be reached by attachment before the distributive share of their debtor is ascertained by a final audit; and, if not, then to determine whether this Court has power, by any order, to give the attaching creditors the practical benefit of a judgment of condemnation of their debtor's distributive portion yet to be ascertained. [**57]  
There are several cases in which it has been declared, that a fund in the hands of a trustee, for distribution in equity, is not liable to attachment before a statement and ratification of a final account. See 4 Md. Ch. Dec. 412. 

 [*233]  7 G. & J. 421. In Cockey vs. Leister, 12 Md. 124, the Court say, that an attachment would not lie before a final audit. We do not, however, understand from these cases that an attachment cannot be issued and laid in the hands of a trustee before a final account, and that it would not be effective upon a sum ascertained by such an account to be the distributive share of the debtor in the attachment, but that the process, before the account is stated, cannot affect the fund or the trustee, or compel any modification of the final account, for the benefit of the attaching creditor.
Assuming that these authorities justify the conclusion we have stated, it is obvious that the attaching creditors in this case have acquired no rights of which we can take cognizance, whatever their rights may be in a Court of Law, when the distributive share of their debtor is ascertained by the final audit.
The [**58]  process of attachment is a special statutory remedy, and in resorting to it, the terms of the law conferring it must be strictly pursued; the jurisdiction being exclusively in a Court of Law, and in a case where, from a conflict of jurisdiction, or from other causes, the remedy by attachment is not full and complete, a Court of Equity would seem to have no power to pass any order to aid or perfect it.
The exceptions of Penn and Mitchell, we regard as disposed of in the opinion expressed by this Court on the several questions involved in this case.
Decree reversed and cause remanded for further proceedings. 

6 of 196 DOCUMENTS 

JAMES A. HENDERSON and DAVID J. ROSS, vs. GEORGE S. GIBSON, Garnishee of ELLIOTT JOHNSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

19 Md. 234; 1862 Md. LEXIS 69 

December 5, 1862, Decided 

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

This is a case of attachment sued out by the appellants against the appellee, at the May term, 1855, of the Court of Common Pleas of the city of Baltimore, on a judgment obtained by them at the May term, 1852, of said Court, against Elliott Johnson. The case is fully stated in the opinion of this Court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A judgment by default, by the lapse of the term at which it was entered, without motion or other proceeding had thereon, becomes final and absolute; and from an order striking out such judgment, an appeal will lie to this Court, but must be taken within three years after the right of appeal accrued.

Whether or not, within the limit of three years, the error in striking out the judgment could have been set up as a reason for reversing a judgment obtained upon a trial of issues subsequently joined, it is too late, after the lapse of more than three years, to present it for that purpose.

The plaintiffs, by their pleadings and joinder of issue, subsequent to the order striking out the judgment by default, waived their right of appeal from that order.  

COUNSEL:
J. Malcolm, for the appellants:

The Court below erred in striking out the judgment and allowing the garnishee to plead, the judgment having passed beyond the control of the Court, after the term had expired at which the judgment became final; and, according to the decisions of the Court of Appeals, the motion was too late. It should have been made at the term at which the judgment was entered, and, so far as the record shows, there was no motion made except a verbal one. No reasons being assigned for the motion, it was an arbitrary act of the Court, without any notice to the plaintiffs' counsel, and cannot be sustained on any principle of law. Sherwood vs. Mohler, 14 Md. 564. The garnishee has never yet filed a plea, as required by the order of the Court, and there is no rule of the [**2]  Court of Common Pleas which authorizes "nulla bona" to be pleaded short, as was done in this case, and therefore the judgment should have been for the plaintiffs; for, by the rules of practice, all pleas are required to be in writing, and copies served on the counsel of the other side. Munnikuyson vs. Dorsett, 2 H. & G., 378. Ev. Pr., 429. The striking out of the judgment was directly in the face of the well-known and established practice of the Courts of this State. The motion to strike out should have been in writing, and served upon the opposing counsel.

John H. Thomas, for the appellee:

1st. Courts have power, "for fraud, deceit, surprise or irregularity" in obtaining judgments, to set them aside, as well after as during the term at which they were rendered. The Act of 1787, ch. 9, sec. 6, provides for continuances from the term at which such judgments may have been rendered, until that at which they are set aside, showing that it is immaterial how many terms may have intervened. Hall vs. Sewell, 9 Gill, 146. Sherwood vs. Mohler, 14 Md. 564, 565.

2nd. The mode of showing the existence of such causes, is not designated by the Act. If, therefore, it appear from [**3]  the record that some one of them must have existed, the action of the Court must be presumed to have been founded on them, and ought to be sustained. The Court "learned from the gentlemen in the cause"--the fact must have been conceded by counsel on both sides--that the appellee had no funds liable to condemnation. The answers of the garnishee, and the verdict of the jury, show conclusively that he had none. In the face of these facts, it is impossible to account for the judgment by default against him, except on one of the grounds which entitle the Court to set it aside.

3rd. If the point arose on motion to quash an execution, to reinstate the judgment, or on appeal from the order striking it out, in the absence of any other facts, it might be necessary to shew what proof was addressed to the Court below, as to the mode in which the judgment was obtained. But the Court can hardly be considered to have erred in striking out a judgment, when the record contains a verdict showing that no just cause for the rendition of it could, by possibility, have existed.

4th. The objection to the action of the Court might have been taken by the appellants, without going into the merits [**4]  of the case. They chose to rely on the merits; mere technical rights were thereby waived. It is too late to rely on them after it is shown that they could not be conscientiously enforced. Kent vs. Holiday, 17 Md. 391. Evans vs. McGee, 11 Peters, 85.

5th. The point was not made in the Court below. The so-called bill of exceptions states that they excepted to the action of the Court before the jury retired. But the judgment had then been stricken out more than a year--not excepted to at the time it was done, as the record shows-- and not brought to the attention of the Court afterwards, as it might have been, by a motion to reinstate the judgment. If the course pursued had not been considered equivalent to an agreement to try the case on its merits, an affidavit would have been filed. The want of it, however, is supplied by the verdict.

6th. Even if the Court erred, a procedendo ought not to be granted, as there was only a technical omission, which would be supplied if the case be sent back. Walters & Harvey vs. Munroe, 17 Md. 504. Fowle vs. Munroe, Id., 507.

7th. If the case be sent back, it ought to be merely for the purpose of enabling the appellee to make an [**5]  affidavit, which, however, cannot be necessary, inasmuch as the verdict establishes all that he could by affidavit. Allen vs. Lamden, 2 Md. 283.

8th. The plea of "nulla bona" was full. Even if it had been defectively pleaded, or not pleaded at all, that defect was cured by the verdict. Tyson vs. Rickards, 3 H. & J., 109.

9th. Joining issue on the plea, was an admission of its sufficiency as a bar to the plaintiffs' right of recovery, if sustained, as it was, by proof, and a waiver of the right; he might otherwise have had to object to the striking out of the judgment by default. Danels vs. Taggart, 1 G. & J., 323, 324. Green vs. Johnson, 3 G. & J., 389.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
COCHRAN 

OPINION:

 [*237]  COCHRAN, J., delivered the opinion of this Court:
It appears from the record in this case, that the appellants, having obtained a judgment in the Court of Common Pleas for Baltimore city, against Elliot Johnson, caused an attachment to be issued thereon, at the January term of 1855, and laid in the hands of the appellee, which was duly returned by the sheriff, at the following May term of that Court. The appellee failing [**6]  to appear on the return of the writ, a judgment by default was entered against him on the 15th of May 1855. At the January term 1856, after the lapse of the preceding May and September terms, without further action taken by either party, the Court, on motion of the appellee, ordered the judgment by default to be stricken out, and permitted him to appear and plead. At January term 1860, the appellants replied, and upon the joinder of issue, filed interrogatories, which were answered by the appellee, denying funds, &c. The appellants, after 

 [*238]  offering evidence, at the trial of the case, to show the time and manner of striking out the judgment by default, took their exception thereto, and we have now to consider whether, under the circumstances, the question raised can be entertained as a ground for reversing the judgment from which this appeal was taken. In view of the cases decided by this Court, we think there can be no difficulty in disposing of the question. The judgment by default, by the lapse of the term at which it was entered, without motion or other proceeding had upon it, became final and absolute, and the appellants were undoubtedly entitled to an appeal from the [**7]  order of the Court striking it out. Green vs. Hamilton, 16 Md. 317. Walters & Harvey, vs. Munroe, 17 Md. 501. Graff & Gambrill as. Merchants & Miners Transp. Co., 18 Md. 364. The right of appeal thus afforded was limited, however, and could have been availed of only within the period of three years after the right had accrued, but whether within that time the error in striking out the judgment could have been set up as a reason for reversing a judgment obtained upon a trial of issues subsequently joined or not, we are clearly of opinion that it is now too late to be presented for that purpose. The appeal was not taken until upwards of four years after the judgment by default was stricken out, and as that act of the Court is the only ground of exception presented for reversing the present judgment, the entertainment of it, to effect that result, would operate to defeat the statutory provisions limiting the time for taking appeals to three years. We think, further, that the appellants, by their pleadings and joinder of issue, subsequent to the order excepted to, waived their right to an appeal from that order. It cannot be [**8]  supposed that the right of appeal was pending during the voluntary proceedings of the appellants in bringing the cause to issue and trial before the jury. Their acts, in thus pleading and trying the 

 [*239]  case upon issues subsequently joined, were entirely inconsistent with the reservation of their right of appeal upon the order striking out the judgment by default, and for that reason they must be held to have abandoned it. Without expressing any opinion as to the propriety of the act excepted to, it is sufficient to say, that from the lapse of time, and the implied waiver of objection to it by the appellants, it presents neither a proper nor sufficient reason for reversing this judgment.
Judgment affirmed. 

7 of 196 DOCUMENTS 

THOMAS E. HAMBLETON and FRANCIS H. HAMBLETON, vs. JOSEPH H. MCGEE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

19 Md. 43; 1862 Md. LEXIS 54 

December 3, 1862, Decided 

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

Action brought on the 10th day of September 1858, by the appellee, Joseph H. McGee, to recover from the appellants, Thomas Edward Hambleton, Jr., and Francis H. Hambleton, damages sustained by the appellee in the loss of a horse, alleged to have been hired by him to the appellants. The declaration contains but one count, and is:-- "That the defendants hired from the plaintiff a horse, to drive from Baltimore city to the distance of twenty or twenty-one miles, in Baltimore county, and thence back to Baltimore city, in a proper manner, and the defendants drove said horse so immoderately that he died from the effects of said immoderate driving, and the plaintiff claims," &c. The defendants pleaded that they did not commit the wrong alleged.

1st Exception. The defendants' first prayer, offered at the close of the plaintiff's testimony, and rejected by the Court, with a summary of said testimony, will be found in the opinion of this Court, and constitute the first exception.

2nd Exception. The defendants then offered in evidence an agreed statement of the testimony of Victor Holmes, a competent witness, as follows: "One [**2]  of the defendants, Francis H. Hambleton, arrived at the residence of Victor Holmes, at about seven o'clock, P. M., on the evening of the 4th of July 1858, having driven from the city of Baltimore, a distance of twenty-two miles, with a horse hired from the plaintiff; that the weather was warm; that the horse was very fat, and seemed much exhausted; that every care was taken to prevent the servants from giving him too much water or food, in his heated condition; that he was tied under a tree until sufficiently cooled to be put in the stable; that the defendants left the house of said Holmes at five o'clock, A. M., the following morning, on their return to the city; that the horse was then lame, but not too much so, in the opinion of said Holmes, to have been used for such journey; and that the time usually taken to go from Baltimore to said Holmes' residence, is about three hours." The defendants also proved, by J. Douglas Hambleton, that the defendant, Thomas Edward Hambleton, had not been in the city on the 4th of July, and then submitted to the Court two prayers, which were rejected; and no exception having been taken to the ruling of the Court, as appears from the record, said prayers [**3]  are here omitted. The Court then instructed the jury as follows: "If the jury believe, from the evidence in the cause, that the defendants hired the horse, spoken of in the evidence, from the plaintiff, at the time stated by the witnesses, and that the said horse was used by the defendants for the purposes for which he was hired, and that in the said use of the said horse, he suffered and was injured without any neglect or ill-usage, or want of reasonable and proper care on the part of the said defendants, then their verdict must be for the defendants. If, on the contrary, they shall believe that the said defendants, so hiring and using the said horse, or their servants or agents, did not use ordinary, reasonable and proper care in the said use of the said horse, then their verdict will be for the plaintiff. If they shall believe that only one of the defendants so hired and used the said horse, and by reason of his neglect or want of ordinary, reasonable and proper care, the said horse was injured, then they will find their verdict for the defendant whom they shall find not concerned in the said hiring and use of the said horse, and for the plaintiff, as against the other whom they [**4]  shall find so negligent and wanting in reasonable and proper care." To this instruction of the Court the defendants excepted, and the verdict and judgment being for the plaintiff, they appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

In an action of tort against several defendants, if, at the conclusion of the plaintiff's case, there is no evidence against one of the defendants, he is entitled to be acquitted; and such practice is conformable to reason, and necessary for the furtherance of justice; otherwise it would be in the power of a plaintiff to deprive defendants of the benefit of material and competent witnesses, by joining them in the action.

One of two defendants hired the horse of the plaintiff, then apparently sound, to drive a certain distance, and return, and afterwards drove the horse the stated distance. On the return, both the defendants occupied the vehicle in which the horse was driven, and both, on reaching the end of the journey, proceeded together to the stables of the plaintiff, and informed him that the horse was foundered, and where it was to be found. HELD, in an action to recover the value of the horse:

1st. That from these facts, it was competent for the jury to infer a joint contract of hiring, and that both of the defendants participated in the tortious act complained of.

2nd. That although the onus of proving want of diligence, and reasonable and proper care, was on the plaintiff, it was competent for the jury to infer those facts from the evidence in the cause.  

COUNSEL:
William A. Fisher and J. Douglas Hambleton, for the appellants:

There being no evidence against Thomas E. Hambleton, Jr., the Court should, at the close of the plaintiff's case and evidence, have directed the jury to have found a separate verdict in his favor, in order that he might have become a witness for his co-defendant. 4 Esp., 229, Davey vs. Chamberlain. 3 Bar. Sup. Ct. R., 380, Harrington vs. Snyder. 6 Carr. & Payne, 213, Child vs. Chamberlain. 61 Eng. Com. Law Rep., 710, Neilan vs. Hanny. 1 Ch. Pl., 88. 15 Johns., 222, Van Deusen vs. Van Slyck. 10 Wend., 390, Bates vs. Conklin. 18 Wend., 141, Noyes vs. Hewitt. 2 Swan's R., 180, Beasley vs. Bradley. 11 G. & J., 147, Oliver vs. Palmer. 1 G. & J., 393, Burch, et al., vs. Scott.

The Court erred in submitting to the jury any question as to neglect, ill-usage, or want or neglect of ordinary, reasonable and proper care, under the pleadings in the cause, and in leaving to the jury to find whether the horse,  [**5]  spoken of in the evidence, "was hired and used by the defendants for the purposes for which he was hired." 4 Md. 409, Sasscer vs. The Farmers Bank of Md. 6 Md. 88, Preston & Hepburn, vs. Leighton, use of Kelly, Ball & Co. The onus was upon the plaintiff, to show neglect, ill-usage or want of reasonable and proper care, and the form in which the instructions were given, was calculated to mislead the jury. 2 Kent's Com., page 764. 1 Esp., 315, Finucane vs. Small. 5 Barn. & Cress., 322, Marsh vs. Horne. 1 Cow. R., 109, Newton vs. Pope. 13 Johns. R., 211, Millon vs. Salisbury. 4 Esp., 229, Davy vs. Chamberlain. 3 Bar. Sup. Ct. Rep., 380, Harrington vs Snyder. 3 Watts & Serg., 27, Relf vs. Rapp.

Robt. C. Barry and O. Miller, for the appellee:

From the facts included in the first exception, it was clearly competent for the jury to infer a joint hiring and user, and a joint responsibility therefor. 14 Johns. R., 122, Brown vs. Howard. 1 Phil. Ev., 61. Buller, 285. It is a matter in the discretion of the judge, to direct a verdict to be entered for one defendant, before the whole case is closed. 1 Phil. Ev., 54, 55. 6 Adolph. & Ellis, 407, Sowell vs. Champion. 6 Queen's Bench,  [**6]  Adolph. & Ellis, N. S., 487, White vs. Hill. The question, whether there was negligence or not, was properly left to the jury. 4 Gill, 416, 422, Stockton vs. Frey.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*47]  BARTOL, J., delivered the opinion of this Court:
At the trial of this case, in the Court below, after the testimony of the plaintiff was concluded, the Court was asked to instruct the jury "that there was no evidence to charge the defendant, Thomas E. Hambleton, and that they must find a verdict in his favor." The refusal of the Court to grant this instruction forms the subject of the first bill of exceptions.
In actions for tort against several defendants, if, at the conclusion of the plaintiff's case, there is no evidence against one of the defendants, he is entitled to be acquitted; "so that all defendants, not fixed by the plaintiff's evidence, are to be acquitted before any part of the defence is gone into." This, said Parke, J., was the unanimous opinion of all the judges. Child vs. Chamberlain, 6 Car. & Payne 213. (25 Eng. C. L. R. 362.)
Such practice is conformable to reason, and [**7]  necessary for the furtherance of justice; otherwise, it would be in the power of a plaintiff to deprive a defendant of the benefit of material and competent witnesses, by joining them in the action. See Brown and others, vs. Howard, 14 Johns. 119. Van Deusen vs. Van Slyck, 15 Johns. 225. Beasley vs. Bradley, 2 Swan's (Ten.) R., 180. But the rule on this subject, laid down in the books, as correctly stated by Ch. J. Thompson, in Brown vs. Howard, is, "that if there is any, even the slightest evidence against a party defendant, he cannot be discharged as a party, and received as a witness." And he adds, "that the want of evidence against 

 [*48]  a party, in order to entitle him to be a witness, should be so glaring and obvious as to afford strong grounds of belief that he was arbitrarily made a defendant to prevent his testimony." 14 Johns. R. 122.
Applying this rule to the case before us, we are of opinion that the decision of the Court of Common Pleas, as stated in the first bill of exceptions, was correct. The evidence on the part of the plaintiff, showed that the horse was hired on the 4th day of July, by [**8]  Francis H. Hambleton. On the next day both the defendants, riding together, stopped, on their way to the city of Baltimore, at the house of John O. Price, in Baltimore county. The witness, Price, was unable to say which of them was driving. The horse at that time was foundered; the witness advised them to go on, as he thought that with care the horse would be able to go to Baltimore, but offered to let them have another horse. On that evening both the defendants went to the livery stable of the plaintiff, and informed him where the horse then was. He was badly foundered, was placed in the hands of a veterinary surgeon, and died in a few days. From these facts, it was competent for the jury to infer that the contract of hiring, though made by one of the defendants, was in fact made on behalf of both; or, if not, there was evidence from which the jury might find that both the defendants participated in the tortious act complained of.
After all the evidence was concluded, the defendants offered two prayers, which were refused; but no exception being taken to their rejection by the Court, they are not properly before us for consideration. Exception was taken by the defendants [**9]  to the instruction given by the Court to the jury, and their second bill of exceptions brings up that instruction for review. It will be found ante page 45.
We find no error in this instruction. It is not objectionable, as urged, on the ground that the facts of the hiring and use of the horse were assumed by the Court. Nor was 

 [*49]  it erroneous in leaving to the jury to find that the defendants hired and used the horse. We have already said that there was evidence from which the jury might find that the horse was hired for and on behalf of both defendants, and was used by them. The chief objection made in the argument, was that there was no evidence whatever to go to the jury in proof of any "ill-usage or neglect on the part of the defendants, or the want of ordinary, reasonable and proper care," in using the horse.
We agree with the appellants' counsel, that the onus of proving want of diligence, and reasonable and proper care, was on the plaintiff. This is the general rule, as stated in Story on Bailments, sec. 410; and there is nothing in the instruction to relieve the plaintiff below of that onus. But surely it cannot be said there was no evidence from which [**10]  the jury might find a want of reasonable care in this case.
The horse, when hired, was sound and in good condition; on the following evening, when returned, he was "badly foundered, hardly able to walk," and died in a few days. One of the witnesses stated that, in his opinion, the horse was foundered by "hard driving." On this last point several witnesses testify that a horse may be foundered when properly and carefully used. But that was a question for the jury, properly left to them by the Court's instruction, and they found the fact against the appellants. We see no reason for disturbing the judgment.
Judgment affirmed. 

8 of 196 DOCUMENTS 

JAMES ARMSTRONG and others, vs. PRISCILLA FAHNESTOCK and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

19 Md. 58; 1862 Md. LEXIS 57 

December 3, 1862, Decided 

PRIOR HISTORY:
 [**1]  This is an appeal from an order of the Circuit Court for Baltimore city, dissolving an injunction. The bill which was filed by the appellants, seeks to set aside a deed made by Jacob Ayres to Priscilla Fahnestock, on the 31st day of December 1857, as fraudulent and void against creditors. A prior deed had been made by Jacob Ayres & Co., on the 28th day of December 1857, and the second deed recites that it was executed because the grantee had been advised that the first was defective.

The last deed conveys to Priscilla Fahnestock "all and singular the goods and chattels, choses in action and sums of money hereinafter described; that is to say, all the stock of groceries and other effects now in the store occupied by me, No. 123, 124, on Pratt street, in Baltimore city; also all the household furniture and kitchen utensils, including a forte-piano, now being in the house occupied by me as a residence, No. 158 Lombard street. Also all my right, title and interest as settling partner of Jacob Ayres & Son, or otherwise, in and to all book-accounts or choses in action due or to become due to the late firm of Jacob Ayres & Son, or to the firm of Jacob Ayres & Co., and particularly to [**2]  a claim or cause of action now pending in the Circuit Court of Prince William county, Virginia, in which said Jacob Ayres and Henry H. Ayres, trading as Jacob Ayres & Son, were complainants, and William Clary and others defendants," &c. "And also of, in and to all and singular the promissory notes, and bills of exchange and bonds now held by the undersigned, in any manner, either as an individual or as a co-partner, as aforesaid."

From the pleadings and evidence in the case, it appears that three different firms, consecutively, carried on the grocery business in the same store. The first was Ayres and Sewell, which was dissolved by the death of Sewell, about the year 1842. A partnership was then formed between Jacob Ayres and his son, Henry H. Ayres, which commenced business under the name and style of Jacob Ayres & Son, in June 1842. This firm was also dissolved in February 1857, after which Jacob Ayres continued to do business under the style and firm of Jacob Ayres & Co.

The bill charges that said deeds are voluntary and without valuable consideration, and were executed with intent to hinder, delay and defraud the complainants, and all other bona fide creditors of said [**3]  Jacob Ayres & Son, Jacob Ayres & Co., and Jacob Ayres; that under said deeds the said Priscilla had accordingly taken possession of the stock of goods described therein, was disposing of the same, and was reducing into possession the choses in action of the said grantor, and this without having given the bond required by law; and concludes by praying for an injunction against the said Priscilla, and the appointment of a receiver. The injunction was accordingly issued.

Short copies of judgments obtained by the complainants against Jacob Ayres, were filed as exhibits; also the two deeds from Jacob Ayres to Priscilla Fahnestock.

The answers of the defendants deny all manner of fraud, insist that the debts intended to be secured were not fictitious, but actually and fairly due, that they consisted of money lent to Jacob Ayres & Son, and Jacob Ayres & Co., by Priscilla Fahnestock, Sedonia Coleman, and Elizabeth Ayres, out of their own separate funds, and were, in fact, the borrowed capital upon which the business of the said firms had been mainly conducted. The following opinion of the Court below, (KREBS, J.,) to which this Court refer for the reasons of their decision, is so [**4]  full in its references to the pleadings and evidence, as to render any further statement of the case unnecessary:

"At the hearing, the charge in the bill of complaint, that the debts intended to be secured by Jacob Ayres to his daughters, were pretended debts, and that the said deed was voluntary and without consideration, was abandoned, and it was admitted that he was justly indebted to them in or about the respective sums mentioned in the said deed; but the complainants insisted that they, as, or so far as they were, the creditors of the firm of Jacob Ayres & Son, were, under the general prayer of the bill, entitled to the relief prayed, because the property and effects so transferred to the said trustee, had been, and still continued to be, in her hands, the partnership property and assets of the said dissolved firm of Jacob Ayres & Son, and was therefore applicable to the payment of the creditors of said firm, and that the said Jacob had in no way acquired any such right or title to said property and effects, as entitled him to deal with it as his individual property, and to convey it in trust as he had attempted to do, and that therefore the said deed was void, and should [**5]  be set aside.

"It is to be observed that the complainants, in their bill, impeached this deed of trust solely upon the ground that it is voluntary; that, by it, the said Jacob Ayres attempts to give to his daughters, without receiving any consideration from them, property belonging to him, the proceeds of which should be applied to pay the debts of Jacob Ayres & Son, of Jacob Ayres & Co., and of Jacob Ayres. It treats the property conveyed by it as his property, and shews that so far as any part of it had belonged to the late firm of 'Jacob Ayres & Son,' he had acquired the title thereto by purchase from Henry H. Ayres, his son, who, with his father, had composed that firm.

"The bill represents the complainants as the creditors of the said 'Jacob Ayres,' of 'Jacob Ayres & Son,' and of 'Jacob Ayres & Co.,' under which last style Jacob Ayres, alone, transacted business. And it states, that after the said 'Jacob Ayres & Son' had become so indebted to them, the said Jacob Ayres purchased out all the rights of his said son, Henry H. Ayres, in the said firm of 'Jacob Ayres & Son;' and that he then conveyed all the property, of every description, to which he had any claim, right [**6]  or title, to the said Priscilla, by a bill of sale dated the 28th day of December 1857, referred to in the proceedings, upon certain trusts, &c.; and that afterwards, on the 31st day of December 1857, having reason to believe that for some cause the said bill of sale was inoperative, executed the deed of trust above referred to, which differs from the said bill of sale in no respect whatever, except in the recital which it contains, shewing the omission which was supposed to affect its validity. The property conveyed is described as stock of goods and other effects now in the store occupied by me, No. 123 or 124, on Pratt street; all the household furniture and kitchen utensils, including a forte-piano, now being in the house occupied by me as a residence, No. 158 Lombard street; 'also all my right, title and interest as settling partner of Jacob Ayres & Son, or otherwise, or choses in action due or to become due to the late firm of Jacob Ayres & Son.' The stock of goods and furniture is described clearly as his individual property, and the descriptive terms in which reference is made to the effects, &c., that had belonged to the late firm of Jacob Ayres & Son, is, in my opinion, perfectly [**7]  consistent with his asserted title and claim to these effects, as then belonging to him individually, by virtue of his having purchased out, as he states in one of the recitals of the same deed, all the right of his son in the firm of 'Jacob Ayres & Son.' Upon reference further to the answers of the defendants, it will be found, by comparing the responsive statements, and the allegations therein, with the allegations of the said bill, that the only matter put in issue by the pleadings in this case, is the existence of the claims of his said daughters, mentioned in said deeds, as bona fide debts due by him to them, respectively.

"The bill does not question the title of the said Jacob Ayres to the property conveyed by the said deed of trust, by charging that the transfer by the said Henry H. Ayres of his interest in that part of it which had been the partnership property of Jacob Ayres & Son, upon the purchase which the said Jacob made of his said son's interest in it, was not bona fide, or by asserting that his title was defective for any reason; and it is a question of very serious doubt, whether the complainants, under the present state of pleadings, can now insist that there [**8]  was no sale or transfer made by the said Henry of his interest in the partnership effects of said firm by the said Jacob, or, if there was such sale or transfer, that it was not made bona fide, and therefore did not operate to render what had been partnership property, the individual property of said Jacob, and that, consequently, the said effects are still partnership assets in the hands of the said Priscilla, and applicable to the payment of the debts of said firm. Conceding, however, that they may be allowed to assume these positions with a view to the relief that they ask, the first inquiry is: Did Henry H. Ayres sell and transfer his interest in the partnership effects of Jacob Ayres & Son to the said Jacob? Can the complainants question the fact that he did, after having alleged, in their bill, that 'he had purchased out all the rights of his said son in the said firm?' In my opinion, they are estopped from so doing; but if they had not themselves stated this fact, the testimony is conclusive to prove it. The published notice of their dissolution of co-partnership, which is in evidence, proves this. The original was signed by Jacob Ayres and Henry H. Ayres. It states, that 'Henry [**9]  H. Ayres, having disposed of his interest in the firm of Jacob Ayres & Son to Mr. Jacob Ayres, the firm is this day dissolved. Jacob Ayres assumes all the liabilities of the old firm, and, for such purpose, will use its name, and to whom all debts due to the firm will be paid.' Here we find the statement, in writing, made by Henry H. Ayres, of the fact that he had disposed of all his interest in the said firm to his father, and the consideration for the transfer set forth also. In reply to the objection made, that the defendants have produced no written transfer or assignment of his interest, it may be properly said, that the original paper, from which this notice was copied, was itself, in fact, a written dissolution of the partnership, and transfer in writing, by Henry H. Ayres, of all his interest in its effects to the said Jacob.

"The complainants have relied upon certain passages in that part of said deed of trust which described the property transferred, to which I have referred above, to show that there was no actual transfer of H. H. Ayres' partnership interest in the property, and no transmutation of it from joint to individual property. I have already expressed the opinion,  [**10]  that there is nothing in these passages inconsistent with the title set up by the defendant, Jacob, to this partnership property as his individual property; and whatever inference, if any, to the contrary they might furnish, is rebutted by the express language used in the recital of the same deed, to the benefit of which he is certainly entitled, as against any inferential deductions from subsequent clauses of the same instrument. It states, in distinct terms, in the recital, 'that he had heretofore purchased out all the rights of his son in the firm of Jacob Ayres & Son.' I am of opinion, therefore, from what I regard as clear proof in this cause, that Henry H. Ayres did, at the time of the dissolution of the firm of Jacob Ayres & Son, transfer all his, the said Henry's, interest in the partnership effects of the said firm to the said Jacob Ayres. The complainants concede that such a transfer, if it had taken place and been bona fide, would have had the effect to transmute this partnership property into the individual property of the said Jacob; but they insist, that if there was such a transfer, it was not bona fide. Believing as I do, then, that there was such a sale and transfer [**11]  made, was it bona fide?

"Before proceeding to consider this question, I may premise that the real purpose of these complainants, as it is understood by the Court, is to follow trust property into the hands of a party who has acquired possession of it without having any legal title to it. To accomplish this object, it is not necessary for them, nor do I so understand them to insist, that this deed of trust is fraudulent or void; but that in so far as it attempts to give this trustee title to any of the effects that belonged to the late firm of Jacob Ayres & Son, it is inoperative, because the said Jacob, himself, had no title individually to that property, and that therefore it remains in the hands of this trustee, impressed with a trust for the benefit of the joint creditors of that firm. The only claim that he sets up to it, as his individual property, being founded on the title derived under the purchase from his son. The complainants insist that this purchase, or the transfer that accompanied it, was not bona fide, and is therefore void; and, in fact, it is the validity of this transfer, made by a retiring to a continuing partner, which is impeached by this bill.

"The [**12]  complainants insist that it is not bona fide--

"1. Because the retiring partner, who made it, was insolvent. I can find no authority for this position, nor can I discover any valid reason why the mere circumstance of the inability of the retiring partner to pay his debts, should render such a transfer fraudulent.

"2. Because the firm, at the time of the dissolution, was insolvent. It has been repeatedly decided, that the insolvency of the firm, at the time of the dissolution and assignment of the retiring partner's interest to the continuing partner, does not vitiate the transfer, or prevent the property from becoming the individual property of the continuing partner. In Collyer on Partnership, Book IV, ch. 202, marginal p. 515, the author says: 'The effect of the conversion of joint into separate estate, will not be altered by the circumstance that, at the time it took place, the partners knew that the firm was insolvent. A conversion under such circumstances, is not necessarily a fraud upon creditors.' Ex-parte Peake, 1 Mad. Ch. R., 346. In this case it was distinctly objected that 'the purchase was invalid and fraudulent, because the partnership was insolvent,' and the [**13]  partners knew it; but, in answer to the objection, the Court say: 'The mere circumstance of the partnership being, at the time of the retirement, in such a state that their joint effects were not sufficient to pay their joint debts, would not, per se, be sufficient to invalidate a dissolution of partnership, made fairly between the partners themselves. In that case the Court held, that the retiring partner had made a valid transfer of his share in the partnership effects to the other, although they both knew that the partnership was insolvent.'

"And further, this objection rests upon an assumption of fact which I do not find to be sustained by the evidence in the record. The testimony upon this point, returned with the several commissions, shews, in my opinion, that the firm was not insolvent at the time when the dissolution took place, and Jacob Ayres purchased out the interest of Henry H. Ayres in the firm, but that according to any fair and reasonable estimate of the value of its choses in action and effects at that time, its assets would have been abundantly sufficient to pay all its liabilities. As respects the third ground taken by the complainants, against the bona fide [**14]  character of this transfer, viz., that 'there was no distinct covenant or agreement of the continuing partner to pay the debts of the firm,' I have only to add to what I have already stated in regard to the effect of the written articles of dissolution of the firm, signed by both of the partners and published, that I regard it as containing a distinct agreement on the part of Jacob Ayres to pay the debts of the firm.

"Upon a careful consideration of all the facts and circumstances connected with the dissolution of this partnership, and the purchase of the interest of the retiring partner in its effects, I must express the opinion, that I can discover nothing in them to satisfy me that it was not bona fide, or 'the act of men, acting fairly, winding up the concern.' The consideration for the transfer, was the agreement of Jacob Ayres, that he would pay the debts of the firm. He took possession of the effects, which seemed to be sufficient for that purpose, immediately, and brought into the business of the new firm the sum of $ 3,000, which he borrowed from his daughter, Mrs. Coleman, indicating thereby, as it seems to me, a bona fide intention to go on with the new business, with [**15]  the advantages of additional capital, and which he continued to prosecute, without doing any act in connection with it of a suspicious character, until he was compelled to suspend its operations, and there is no proof in the cause of his having misapplied, squandered, secreted, or clandestinely disposed of any part of these effects.

"In regard to another objection to this transfer, viz: that so far as it attempts to transfer debts of the firm of 'Jacob Ayres & Son,' those debts, notwithstanding the assignment, will continue to be joint property, that objection is founded upon decisions in the English Court of Bankruptcy, growing out of the peculiar provisions of the English statutes upon that subject, and they shew that the assignee in bankruptcy cannot claim the debts of the firm as the individual property of the bankrupt, unless the retiring partner had assigned them in writing, and the continuing partner had given notice of the assignment to the debtors. That decision is deemed necessary to gratify the requirements of the words of these statutes by the judges sitting in bankruptcy. But certainly such a rule cannot be demanded by a Court of Equity, one of whose peculiar functions [**16]  it is, to maintain the title of the assignee of the choses in action whose title is not respected at law. Such a Court could not seriously consider the sole objection-- coming from a party impeaching an assignment of choses in action--that no notice had been given to the debtor. I must, therefore, pass an order in conformity with the foregoing views." 

DISPOSITION:
Order affirmed.  

HEADNOTES:

Notice of the dissolution of a partnership, duly published, was in the following words: "B having disposed of his interest in the firm of 'A & B' to A, the firm is this day dissolved. A assumes all liabilities of the old firm, and for such purposes will use its name, and to whom all debts due the firm will be paid." A having afterwards executed a deed of trust to secure the debts of certain of his creditors, a bill was filed by others of them to set aside the deed as void, on the ground, among others, that there was no sufficient transfer in writing by B to A, to authorize A to deal with the effects and assets of the old firm as his individual property, and to convey it in trust, &c. HELD:

1st. That the original paper, from which said notice was copied, if treated as a bona fide assignment, was sufficient as a written transfer or assignment to A of all of B's interest in the partnership effects.

2nd. That the allegation in the bill of complaint, that "A had purchased out all the rights of B in the said firm," is sufficient to estop the complainants from controverting that fact in a subsequent stage of the proceedings.

3rd. That the mere circumstance of the inability of the retiring partner to pay his debts, cannot render such a transfer fraudulent; nor will the insolvency of the firm at the time of the dissolution and assignment of the retiring partner's interest to the continuing partner, vitiate the transfer, or prevent the property from becoming the individual property of the continuing partner. 

COUNSEL:
Wm. Price, for the appellants:

The trusts of the deed are to collect, receive and reduce to possession, the property mentioned therein, and distribute the same pro rata among the following persons, viz: To Priscilla Fahnestock, $ 3,376.75; to Sidonia Coleman, $ 4,000; to Elizabeth Ayres, $ 600; to James Sellman & Co., $ 850; and to James Armstrong & Co., $ 150. The debt due to Priscilla Fahnestock, as appears from her answer, was a loan made to her father in November 1840, and January 1841, of $ 2,000, which was during the firm of Ayres & Sewell; and a further loan of $ 1,750, to Jacob Ayres & Son, amounting to the sum of $ 3,750. The acknowledgment of Jacob Ayres & Son, dated January the 31st, 1849, is of a debt of $ 3,406.75, due her as having been borrowed from her by Jacob Ayres & Son, on the 23rd of January [**17]  1842. The money lent by Priscilla Fahnestock to Jacob Ayres, was an individual debt, which will be presumed to have been paid from the lapse of time. Priscilla Fahnestock went to live with her father in 1838, and continued to live with him, and was supported by him principally from the goods of the firm, her board, &c., constantly reducing the debt, the interest having been paid.

The debt due Sidonia Coleman was for money lent by her to her father, after the failure of the firm of Jacob Ayres & Co.

The debt due Elizabeth Ayres, was created as follows: She received the money in an ordinary course of distribution from her father's estate, and of course it was her husband's, who was a member of the firm, and it was by him very properly put into the business of the firm.

The property conveyed was that of Jacob Ayres & Son, Jacob Ayres & Co., and the individual property of Jacob Ayres. If the assets of each firm go to the creditors of each, and the assets of the individual to his separate creditors, then the property conveyed by this deed would go of right to persons very different from those contemplated by the deed.

Under the commission, when first returned, the witness,  [**18]  Wood, proved the insolvency of Ayres & Son. After this, the respondents by petition, prayed that the commission should be remanded, and under the remanded commission Woods was re-examined, and proved that Ayres & Co. were not insolvent when the money was advanced. The judge below says, there was but one issue in the case, and that the question of the insolvency of the firm was not raised. But the respondents instead of taking this position, as they had a right to do, by petition asked for the remanding of the commission to take testimony on this very issue, and did take it, and having enlarged the issue must stand by it. Sto. Eq. Pr., sec. 291.

An assignment by a firm, preferring creditors of the individual or vice versa, or preferring the creditors of one firm to payment out of the assetts of another, is invalid. Jackson vs. Carroll, 1 Sanf. Ch. R., 348. A retiring partner may, for a valuable consideration, convey to his successor his interest in the firm from which he is about to retire, but it must be done by assignment. But he cannot assign when he or the firm is insolvent. 11 Md. 573, Sanderson vs. Stockdale. There was no assignment from Henry H. Ayres to Jacob Ayres [**19]  & Co.

The equity of the joint creditors to the joint effects, and vice versa, has been adhered to in Maryland, with more constancy than elsewhere. McCullough vs. Dashiell, 1 H. & G., 96. 2 Md. 15, Glenn vs. Gill. A general assignment, giving preferences which does not on its face convey all the property, is void. 3 Md. 35, Green & Trammel, vs. Trieber. 11 Md. 380, Rosenberg & Blonheim, vs. Moore. The deed of trust was voluntary, the debts preferred not being actually due by Jacob Ayres or by Jacob Ayres & Son. Bur. on Assignments, 137, (Ed. of 1858.)

Robt. J. Brent and J. Prentiss Poe, for the appellees:

It is no evidence of fraud, that a partner on retiring, assigns his right to the effects and assets of the firm to the continuing partner, on his assuming the liability for the debts of the firm, nor that the daughter lived with the father, and used groceries furnished from his store. The charge of actual fraud has been abandoned. The only allegation of the bill in this point of view, pressed by the appellants, is, that Jacob Ayres has made a fictitious conveyance of property belonging to Jacob Ayres & Son, and Jacob Ayres & Co., for debts not actually due [**20]  and owing.

Whether the inheritance or distributive share of her father's estate, received by Elizabeth Ayres, became the property of her husband, was a matter resting with the husband. If he thought proper that it should remain her separate property, it is not a matter for others to question. The money lent was hers, and was lent as hers, and this all the testimony shows.

No issue of insolvency was raised by the bill, the evidence taken by the defendants was to show that Ayres & Son, and Ayres & Co., were not insolvent at the time the several sums were lent. It was discretionary with the Court, whether to remand the commission or not, and that discretion was properly exercised. We maintain the following positions:

1st. The complainants having alleged a purchase by Jacob Ayres of the interest of his son, Henry H. Ayres, in the effects of the firm of Jacob Ayres & Son, and having framed their bill on that theory, cannot now controvert that fact.

2nd. Conceding that they are not thus estopped upon the pleadings, from denying what under oath they had asserted, yet the proof in the cause is clear that such purchase was made. The recitals in the bill of sale of the 28th [**21]  of December, and in the deed of trust of the 31st of December 1857, the advertisement in the newspaper at the time of the dissolution of the co-partnership, and the retirement of Henry H. Ayres, with the testimony of Wood, all prove this.

3rd. The proof being clear that such transfer was made by Henry Ayres to Jacob Ayres, in February 1857, it was competent for Jacob Ayres to convey to Priscilla Fahnestock, whatever effects or choses in action, originally belonging to the old firm of Jacob Ayres & Son, he still had at the date of the deed of trust; and the effect of the sale and transfer to said Jacob Ayres by Henry H. Ayres, in February 1857, was to convert what had been joint, into separate property, and to exempt it from all lien of partnership creditors. Glenn vs. Gill, 2 Md. 16. Griffith vs. Buck, 13 Md. 102. Reese vs. Bradford, 13 Ala. Rep., 846. Sanderson vs. Stockdale, 11 Md. 563. There was no judgment or execution to bind real or personal estate, at the time of the conveyance by Jacob Ayres, and the lien being lost by the dissolution of the partnership, was gone forever.

4th. The sale and transfer by Henry H. Ayres to Jacob Ayres, in February 1857, which [**22]  the proof shows were undoubtedly made, were actual and bona fide; first, because there is nothing in the record to rebut the legal presumption of bona fides, but on the contrary, the proof is all the other way; and also, secondly, because the insolvency of the retiring partner, and the insolvency of the firm of Jacob Ayres & Son, at the time of its dissolution, in February 1857, conceding both of these facts, do not vitiate said sale and transfer. Ex-parte Peake, 1 Mad. Ch. R., 346. Collyer on Partnership, Book 11, ch. 202, p. 515. Corning vs. Baker, 7 H. & G., 31; and thirdly, because the proof shows that the firm was solvent in February 1857.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINION:

 [*72]  BY THE COURT:--A careful examination of the pleadings and proofs in this case, has satisfied us of the correctness of the order of the Circuit Court, dissolving the injunction; and for the reasons assigned by the learned judge of that Court in his opinion, transmitted with the record, we will sign a decree affirming the order appealed from.
Order affirmed. 

9 of 196 DOCUMENTS 

JAMES CECIL vs. OWEN CECIL, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

19 Md. 72; 1862 Md. LEXIS 58 

December 3, 1862, Decided 

PRIOR HISTORY:
 [**1]  This is an appeal from a pro forma order and decree of the Orphans Court for Baltimore city, passed on the 19th day of December 1861, dismissing the petition of the appellant. The case is fully stated in the opinion of this Court.  

DISPOSITION:
Decree reversed and cause remanded.  

HEADNOTES:

Any person, on whose interests any order or decree of the Orphans Court has a tendency to operate injuriously, may appeal therefrom; but such person must show that he has an interest in the subject matter of the decree or decision appealed from.

In matters in rem., such as the factum of a will, where solemn proof has been resorted to, the decisions of the Orphans Court are final, if not appealed from; and issues involving the same questions will not be sent a second time.

If a party avails himself of the provisions of the Code, Art. 5, sec. 40, and places himself in a position to appeal, by immediately notifying his intention, and having the testimony reduced to writing, at his expense, he then becomes a party to the record, and may be concluded by it.

It is a well settled principle, that to make the record of a former trial evidence to conclude any matter in issue between the parties, it should appear, by the record or other proof, that the same matter was in issue and decided at the former trial, between the same parties.

Estoppels must be reciprocal, and bind both parties. They operate only on parties and privies in blood or estate, and can be used neither by or against strangers.

All persons who are represented by the parties, and claim under them, or in privity with them, are equally concluded by the same proceedings.

Parties, in the larger sense, are all persons having a right to control the proceedings, to make defence, to adduce and cross-examine witnesses, and to appeal from the decision, if an appeal lies; only those, therefore, who have enjoyed all these privileges, collectively, should be concluded by a decision, judgment or decree.

The administrator has no interest in establishing the fact of an advancement, and cannot be said to be a party in interest. It would be hazardous to extend the privity of interest in law, where there is no common interest in fact, and conclude a party in interest by a constructive representation.

Where a petition is filed by one of several distributees, charging certain specific advancements, in cash, notes and negroes, to his co-distributees, who, in their answers, admit the receipt of the money and property, as alleged in the petition, but deny that it was received by way of advancement, and aver and offer to prove matters in avoidance, which are denied by the replication -- HELD: That such averment and offer does not so neutralize the admissions, as to render them inoperative to support the presumption of an advancement, arising from a gift of money from a parent to a child.

An answer will not support a matter set up in avoidance or discharge, where the matter of avoidance is a distinct fact. In such case the defence must be proved.  

COUNSEL:
A. H. Hobbs, for the appellant:

The question presented for consideration is, whether a distributee is bound by a proceeding in the Orphans Court between his co-distributees, and to which he was not a party on the record. The appellant will contend that he was not bound, and that his petition, as an original proceeding, was properly exhibited in the Court below. There is a striking analogy between the proceedings in the Orphans Court, and in Courts of Equity. To a great extent they have concurrent jurisdiction. Having jurisdiction of the same subject matter, and in the main for the same purposes, it reasonably follows, that the practice in the two Courts should be conducted on the same principles. If this were a proceeding in Chancery, it would be necessary that all persons beneficially interested, should be made parties to the proceeding; for otherwise, full and complete justice could not be done, nor would a [**2]  multiplicity of suits be prevented. Sto. Eq. Pl., secs. 72 and 76. 6 H. & J., 14, Cromwell vs. Owings. We contend that the same rule holds good as to the Orphans Court. It would prove exceedingly oppressive, if a person should be visited with the effects and operation of a decree of Court, in which he had no opportunity to summon witnesses, or to cross-examine those summoned by other parties, and deprived generally of the opportunity of preparing for the investigation of the matter in controversy. It is for this, among other reasons, that judgments and decrees only bind parties and privies. 2 Phil. Ev., 3, 4, 7 and 9. 4 G. & J., 360, Shafer vs. Stonebraker.

A distributee is in no sense a privy to the administrator. 1 Mundf., 446. The general proposition will not be denied, that an interested person, not a party to the proceeding, and having no right of appeal, is entitled to bring an original suit in his own name. It is submitted that the special right given by the peculiar phraseology of the Act of 1818, ch. 204, does in no wise abridge or take away the ancient common law right of notice and warning, before judgment passed. The Act of 1818, was intended to extend, not to abridge,  [**3]  the rights of litigants; it was designed to increase and enlarge the facilities of full and thorough investigation, not to silence persons whose interests, it might be, were invaded and violated. Ordinarily, none but parties to the record can appeal; but parties to the record have a voice in the conduct and management of the cause. Here, the right of appeal does not depend upon the general law; it is the creature of a special statute. If a person, whose rights were injuriously affected by a decision of the Orphans Court, should only be permitted to appeal and seek redress in the Appellate Court, from the case made by others, and, it may be, imperfectly prepared, the right of appeal would frequently prove worthless, and of no avail. If the privilege of instituting a new suit should thus be cut off, the Legislature, instead of multiplying, as they supposed they were doing, the means of remedial justice, by passing the Act of 1818, would only have succeeded in disarming the litigant of his common law right.

Robert C. Barry and Thos. Donaldson, for the appellees:

The Orphans Court properly decided not to hear evidence in regard "to the sums of money charged to have been advanced [**4]  to them," because that question had been heard and decided on by said Court, in the matter of the petition of Owen Cecil, et al., vs. Caroline Hooper and Mary Ann Harrington, (which case is now pending in this honorable Court, on an appeal prayed by James Cecil.) The same issue was embraced and involved in the petition of James Cecil, as was heard and determined by the Orphans Court for Baltimore city, in the antecedent petition of Owen Cecil, et al., vs. Caroline Hooper and Mary Ann Harrington, and the judgment of the Court below was binding, in so far as that question was concerned. Pegg, et al., vs. Warford, 4 Md. 385. Warford vs. Van Sickle, 4 Md. 397.

The law assumes that every one interested is, in fact, a party in the Orphans Court. Code, Art. 5, secs. 39 and 40. Were not the ends sought to be arrived at, by the petition filed by James Cecil, identical with those set forth in the petition of Owen Cecil and others? If so, the Orphans Court was right in refusing to hear testimony upon the same subject matter on which it had passed judgment. The Courts do not favor litigation, and if each person claiming to have an interest in a case, be allowed to file a petition [**5]  embracing the same subject matter, after the Court has pronounced on it, when will a case terminate? 

JUDGES:
The cause was argued before BOWIE, C. J., and BARTOL and COCHRAN, J.  

OPINIONBY:
BOWIE 

OPINION:

 [*76]  BOWIE, C. J., delivered the opinion of this Court:
This was a petition filed in the Orphans Court of Baltimore city, by the appellant, on the 25th November 1861, against the appellees, as administrator and next of kin of Wm. Cecil, deceased, charging that Owen Cecil, as administrator, was about to make distribution of his intestate's estate, of which the appellant and appellees were co-distributees; that the defendants had received certain advancements, in cash and negroes, and praying the same might be brought into hotch-pot. The appellees, Owen and William, answered and denied they had received any advancements.
The appellees, Harrington and Hooper, by their answer, insisted that by an order passed by the Orphans Court, in 

 [*77]  the cause of William Cecil, Thomas Owens, and Owen Cecil, adm'r, against the said Harrington and Hooper, on the 27th of November 1861, the question was fully adjudicated and disposed of, they admit the receipt of $ 4,500, but aver that it was given to [**6]  them by said deceased for services rendered; in reference to the negroes, they claim to hold them under bills of sale. To these answers a replication was filed, stating, inter alia, that the appellant's petition was exhibited and filed some time before the alleged adjudication in the cause above referred to; that he was not a party to that cause, not notified or summoned to appear, and, for these causes, was not estopped or concluded thereby. The replication took issue upon the other averments as to advancements.
At the trial of the cause, each party having read his pleadings, the petitioner called his witnesses, and was about to proceed to examine them, when the Court decided they would hear no evidence in regard to the sums charged to have been advanced to Mrs. Hooper and Mrs. Harrington, whereupon the appellant took a pro forma decree, dismissing said petition, and prayed an appeal.
The appellant contends he is not bound by proceedings in the Orphans Court, between the co-distributees, to which he was not a party on the record. The appellees insist that the ends sought to be attained by the petition filed by the appellant, were the same with those set forth in the petition [**7]  of the appellees, and the Orphans Court were right in refusing to hear testimony upon the same subject matter on which it had passed judgment, and the question is, whether the same matter may be inquired into in the Orphans Courts, "toties quoties," as there are persons interested. The Courts of this State, in consideration of the peculiar nature of the jurisdiction of Orphans Courts, and the informality of proceedings therein, have held that "any person on whose interests any order or decree of the Orphans 

 [*78]  Court has a tendency to operate injuriously, may appeal therefrom. Parker & Wife, vs. Gwynn, 4 Md. 423. Yet they must show they have an interest in the subject matter of the decree or decision appealed from. Hoffar vs. Stonestreet, 6 Md. 303. In matters in rem., such as the factum of a will, where solemn proof has been resorted to, their decisions are final, if not appealed from, and issues involving the same questions will not be sent a second time. Pegg vs. Warford, 4 Md. 385.
The Code, Art. 5, sec. 40, prescribes a mode by which appeals shall be taken in cases of summary proceedings: "If the [**8]  decree, order, decision or judgment shall have been given or made on a summary proceeding, and on the testimony of witnesses, the party shall not be allowed to appeal unless he shall immediately notify his intention, and request that the testimony be reduced to writing, and in such case the depositions shall be at the cost of the party making the request."
If the party avails himself of the provisions of the Code, and places himself in a condition to appeal, by immediately notifying his intention, and having the testimony reduced to writing, at his expense, he then becomes a party to the record, and may be concluded by it. But as far as the record discloses the facts in this case, it is not shown that the appellant was a party to the cause, the decree in which is relied on as conclusive; on the contrary, it is manifest it was a decree in a cause in which appellant was neither complainant nor defendant. The answer relies on an order passed by the Orphans Court, in a cause of William Cecil, Thomas Owens, and Owen Cecil, adm'r, against Mary Ann Harrington and Caroline Hooper. The record is not pleaded "prout patet per recordum," or made a part of the answer.
It is a well settled [**9]  principle, that, to make the record of a former trial evidence to conclude any matter in issue between the parties, it should appear by the record or other 

 [*79]  proof that the same matter was in issue and decided at the former trial between the same parties. Jarrett vs. Johnson, 11 G. & J. 173. Estoppels must be reciprocal, and bind both parties. They operate only on parties and privies in blood or estate, and can be used neither by or against strangers. He that shall not be concluded by the record or other matter, shall not conclude another by it. 8 Gill 247, Alexander vs. Walter et al. Lessee.
Justice requires that every cause be once fairly and impartially tried; but the public tranquility demands that having been once so tried, all litigation of that question, and between those parties, should be closed forever. It is also a most obvious principle of justice, that no man ought to be bound by proceedings to which he was a stranger; but the converse of this rule is equally true, that by proceedings to which he was not a stranger, he may well be held bound. Under the term parties, in this connection, the law includes all who are directly [**10]  interested in the subject matter, and had a right to make defence, or to control the proceedings and to appeal from the judgment. This right involves also the right to adduce testimony and to cross-examine the witnesses on the other side. Persons not having these rights, are regarded as strangers to the cause. But to give full effect to the principle by which parties are held bound by a judgment, all persons who are represented by the parties, and claim under them, or in privity with them, are equally concluded by the same proceedings. 1 Green. Ev., secs. 522, 523.
In regard to the decrees and sentences of Courts exercising any branches of ecclesiastical jurisdiction, the same general principles govern which we have already stated. The principal branch of this jurisdiction in existence in the United States, is that which relates to matters of probate and administration. And as to these, the inquiry, as in other cases, is, whether the matter was exclusively within 

 [*80]  the jurisdiction of the Court, and whether a decree or judgment has directly been passed upon it? If the affirmative be true, the decree is conclusive. Where the decree is of the nature of proceedings  [**11]  in rem., as is generally the case in matters of probate and administration, it is conclusive, like those proceedings, against all the world. But where it is a matter of exclusively private litigation, such as in assignments of dower and some other cases of jurisdiction conferred by particular statutes, the decree stands upon the footing of a judgment at common law. 1 Greenleaf Ev., sec. 550.
The preceding citations fully and forcibly announce the general principles which govern judicial tribunals upon the question of "res adjudicata." A cardinal condition is, that the judgment should be between the same parties and upon the same matter directly in question.
"Parties, in the larger sense, are all persons having a right to control the proceedings, to make defence, to adduce and cross-examine witnesses, and to appeal from the decision, if an appeal lies." 1 Greenleaf Ev., sec. 535.
All these privileges (not any one of them) are essential to the assertion and protection of private rights, and the investigation of the truth. Only, therefore, those who have enjoyed them collectively, should be concluded by a decision, judgment or decree. It is true, privies in blood, in [**12]  law and estate, are governed by the same rule. The petitioner, in this case, not being a party in the larger sense, it remains to inquire whether he is a privy in estate or interest. No one, in this State, can claim a share or interest in the personal estate of an intestate, except through an administrator. It is the administrator's duty to get in the personal estate of the deceased, for distribution.
Advancements, however, do not go into the inventory, and constitute no part of the assets for payment of debts, nor increase the fund on which the administrator's commission 

 [*81]  is allowed. It is optional with the party advanced, whether he will come into hotch-pot. The administrator has no interest in establishing the fact of advancement, and cannot be said to be a party in interest. It is wholly immaterial to him whether money or other property, given by his intestate, be brought into the settlement or not. The aggregate of the estate, as far as he is concerned, is neither increased nor diminished. In the absence of all motive to protect the rights of the distributees, it would be hazardous to extend the privity of interest in law, where there is no common interest in fact,  [**13]  and conclude a party in interest by a constructive representation.
The petitioner might, by adopting certain preliminaries, had he been notified in time, have entitled himself to the cumulative remedy of appeal; but that right, it has been well said, would be nugatory and nominal, without the right of producing evidence, cross-examining the respondents' witnesses, and controlling the conduct of the cause in such a manner as to enable the Appellate Court to determine whether the decree appealed from was erroneous or not.
The petition in this case charges certain specific advancements, in cash, notes and negroes. The answers of Harrington and Hooper admit the receipt of the amounts specified in the petition, but aver and are ready to prove that said sums were paid in consideration of services rendered. As to the slaves mentioned in said petition, the respondents alleged they held them by bills of sale, copies of which were exhibited. To which answers a replication was filed, denying the services, and declaring the bills of sale were voluntary and without consideration.
In the case of Stewart vs. Pattison, 8 Gill 46, the Court said: "If money is delivered by a [**14]  parent to a child, it will be presumed to be an advancement." Here the allegation of the petition is admitted, that they received certain specific 

 [*82]  sums of money, and certain negroes. Does the qualification annexed, "that they aver and are ready to prove," &c., so neutralize the admissions as to render them inoperative to support the presumption of law, until proof to the contrary is offered? Matter in avoidance, denied by the general replication, must be proved. Salmon vs. Clagett, 3 Bland 125,
An answer will not support matter set up in avoidance or discharge, where the matter of avoidance is a distinct fact; in such case the defence must be proved. Gibson vs. McCormick, 10 G. & J. 65. These decisions make it obvious the Orphans Court erred in assuming there was no evidence before them to sustain the petition, and whether the same was dismissed upon the plea of res adjudicata, or upon the ground of want of evidence, we think the decree below should be reversed, and the cause remanded for further proceedings.
Decree reversed and cause remanded. 

10 of 196 DOCUMENTS 

JACOB RISEWICK vs. GEORGE DAVIS, Garnishee of JAMES FORWOOD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

19 Md. 82; 1862 Md. LEXIS 59 

December 3, 1862, Decided 

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

This is a case of an attachment on warrant, issued May the 2nd, 1854, by the appellant, to bind the property and effects of James Forwood. The attachment was laid in the hands of George Davis, who appeared and pleaded three pleas, two of which were ruled bad on demurrer. To the third plea, which was that Forwood was a citizen of Maryland, and not liable to attachment, issue was taken, and joinder. The case was tried the 18th of November 1858.

1st Exception.--At the trial of the cause, the defendant proved that in 1847, James Forwood was a citizen of Maryland, residing in Harford county, with a family, consisting of his wife, his mother-in-law, his sister-in-law, and his four children, and there kept house and carried on a farm; that in 1847, he left said State and went to Pennsylvania, his family remaining and occupying the same house and farm; that while making his preparations to go to Pennsylvania, he declared to his family physician, and to several other persons in the neighborhood, his fixed intention to retain his home and residence in Maryland, and to return from time to time, for the purpose of voting at elections;  [**2]  and at various other times, before the issuing of the attachment in this case, he expressed the same intention, and spoke also of his intention to return home when he should have completed the business for which he left the State. To these declarations of Forwood, the plaintiff objected as inadmissible, but the Court (PRICE, J.,) overruled the objection, and the plaintiff excepted.

The defendants also proved that Forwood was in Harford county, for a few days at a time, on several occasions, between 1847 and the 2nd of May 1854; that he voted there in 1850, and was at the polls at other times; that in January 1853, he was in Harford county, negotiating for the purchase of a farm, and in the Spring of said year was also in said county, and, with J. McCausland, purchased a farm therein, an undivided moiety of which he still owns; that he went to Pennsylvania to work as a contractor upon a railroad, and had several contracts in succession for making railroads in different parts of said State; and that on several occasions, when he had completed his contracts, he sold his carts and horses, and packed up his goods. The defendant further offered in evidence the declarations of Forwood,  [**3]  made on such occasions, that it was his purpose to return to Harford county, and that he was detained in Pennsylvania by new contracts, and by some difficulties in getting the money for the work he had done. To the admissibility of these declarations as evidence, the plaintiff objected, and the objection being overruled, excepted.

The defendant further proved, by S. S. Johns, that during Forwood's absence, he was his agent to attend to his affairs, and in that capacity supplied Forwood's family, from time to time, with grain and provisions, and paid the rent for the house occupied by them the year preceding their removal to the farm purchased by Forwood and McCausland, in 1853, and assisted in removing them and the furniture to said farm; and that when Forwood employed him to act as his agent, he told him that he wished him to continue as his agent until he returned home, and always spoke of Harford county as his home. The plaintiff objected to the admissibility in evidence of the said declarations of Forwood, but the Court overruled the objection, and the plaintiff excepted.

The defendant further offered in evidence a bill of sale from the said James Forwood to John W. Massey,  [**4]  dated the 19th of February 1850, in which is the recital, "I, James Forwood, of Harford county, and State of Maryland," &c.; and also proved that Forwood owned the farm on which he lived before going to Pennsylvania, until 1850, when it was sold by a trustee.

The plaintiff then proved that the wife of said Forwood went to Pennsylvania in 1850, and died there a short time afterwards; that two of his children also went to him in Pennsylvania, one of them in 1852 or 1853, and the other some time after, in 1853, the first of whom married and remained there, and the latter, who went on a visit to her father, remained there until 1857, when she returned with him to Maryland; that said Forwood married again in Pennsylvania, prior to 1853, and he and his wife and two children lived for some time with his father-in-law; that he sometimes boarded, and for a month or two kept house; and that he brought his second wife to Maryland in 1857.

The plaintiff's witness, Laura Forwood, being then cross-examined by the defendant, proved that when the children of Forwood went to Pennsylvania, he was boarding; that he continued to board sometimes at Washington, Pa., sometimes near that town, sometimes [**5]  at Greensburg, and sometimes at Pittsburg, as his business on the railroad required; and that when he went to house-keeping, it was in consequence of the breaking up of the boarding-house at which he was then staying; that he frequently expressed his intention of returning to Maryland, and spoke of it as his home; that his second wife often urged him to settle in Pennsylvania, but that he always refused, because, as he said, it was his intention to go back to Maryland, when he finished his work upon the railroads. To these declarations of Forwood the plaintiff also objected, and the objection being overruled, excepted.

The plaintiff then proved that when Forwood left Maryland, he was indebted to various persons, and that an attachment on warrant issued against him, at the suit of P. W. and B. Silver, and judgment of condemnation thereon was entered in the Circuit Court for Harford county, at November term 1853; and that during the whole time of his stay in Pennsylvania, he was engaged in the business of constructing railroads there.

The defendant then offered rebutting evidence, to the effect that Forwood's first wife went to Pennsylvania in 1850, by the advice of her physician,  [**6]  with the avowed intention of returning in a few weeks, being at the time in delicate health; that she and the two daughters who afterwards went to Pennsylvania, had continued to reside up to that time, with the rest of Forwood's family, in the same house where said Forwood had lived, in Harford county, with the same furniture, stock and farming utensils; that the farming operations were carried on in his name, and at his expense; and that when the family, consisting of his mother-in-law, his sister-in-law and youngest child, removed to the farm in 1853, they carried with them the same furniture before spoken of, and that they have remained there, and have been supported by him since that time.

The defendant thereupon prayed the Court to instruct the jury: "That if they believe, from the evidence, that said Forwood had his home in Maryland, and left the State for temporary purposes, but with an intention to return to it, that such change of place was not, in itself, in law, a change of domicil, and he did not thereby cease to be a citizen of this State." Which instruction the Court gave to the jury, and the plaintiff excepted.

The plaintiff thereupon prayed the Court to instruct [**7]  the jury as follows: "That if the jury shall believe, from the evidence, that James Forwood, the defendant, left this State in the year 1847, to work on a railroad in the State of Pennsylvania, and remained there, and absent from this State, with the exception of a few visits of short duration, until the year 1857, and that two of his children, in the year 1853, or before, went to and lived with him there until his return to this State, in 1857, and that before the year 1853, he married a second wife in Pennsylvania, and lived with her there until 1857, and that during the whole period of his absence, the said Forwood was engaged in business in the State of Pennsylvania, and for a month or two kept house there, and boarded himself, wife and children for the residue of the time of his absence, and shall also believe that an attachment was issued against the said Forwood at the suit of P. W. and B. Silver, and judgment of condemnation was entered thereon at the November term 1853, of the Circuit Court for Harford county, that then the jury may find that Forwood was not a citizen and resident of this State, in the meaning of the attachment laws of this State, although the jury may also [**8]  believe that the said Forwood did intend to return to this State at some indefinite period." The Court refused to give this instruction as prayed, to which refusal the plaintiff excepted. The verdict and judgment were for the defendant, and the plaintiff appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

By the more recent decisions of this State, it is declared that the design of the attachment laws is to protect our own citizens from summary proceedings, as well as to give them, and the citizens of the United States, a remedy against debtors residing out of the reach of the process of Court.

The jurisdiction of the Court, in cases of attachment, is a special, limited jurisdiction, conferred by Acts of Assembly, where its power to act must appear on the face of the proceedings, or be proved at the trial.

The great purposes of our attachment laws are, by seizing the property of a debtor, to compel his appearance to answer the demand of the plaintiff, when, from non-residence or flight, he is beyond the process of our judicial tribunals, and, on failure of appearance, to apply such property to the just end of satisfying his debts.

An attachment is an extraordinary, not an ordinary writ. To use it when the debtor is within the reach of ordinary process, is wholly inconsistent with the spirit and design of this mode of procedure.

The attachment upon warrant, under the Act of 1795, ch. 56, cannot lawfully issue, without an affidavit that the debtor "was not a citizen of the State, and not residing therein," or that being a citizen, "he is actually run away, absconding or removed from his place of abode;" if it does not contain this averment, it is substantially defective, and the judgment of condemnation, upon appeal, will be reversed, and the attachment quashed.

The Act of 1750, ch. 40, is prohibitory only as respects residents, &c.; it is silent, "eo nomine," as to foreigners, but it has been decided, that under that statute attachments would lie against foreigners, whether they were residents of the State or not.

The meaning of the word "citizen," in the Act of 1795, ch. 56, is synonymous with "inhabitant or permanent resident;" all such are alike entitled to the most enlarged remedial process and protection from summary proceedings, whether native or adopted citizens, enjoying the elective franchise, and right of purchasing and holding real estate. This construction does not conflict with the provisions of 1715, ch. 40, but gives a cumulative remedy, adapted to the exigencies of trade and commerce, which would be otherwise much embarrassed by the delays of the law.

The question of citizenship, in the purview of these Acts, is a mixed question of law and fact, to be found by the jury, under the direction of the Court.

If "residing and doing business in the State" constitute a defendant, at the time he absconds, a citizen in contemplation of our attachment laws, not residing and not doing business in the State at the time of issuing the attachment, would necessarily bring the defendant within the opposite class of persons described in the Act of 1795, ch. 56, sec. 1, as not being citizens of this State, &c.

There being no express provision in the Act of 1854, ch. 153, as to when it should take effect, by the 31st sec. of Art. 3, of the Constitution, its operation was suspended until the 1st of June 1854, and did not affect pending cases.

In a case of attachment on warrant, the plea being "that the debtor was a citizen of Maryland, and not liable to attachment," the declarations of the debtor, offered to show an "animus revertendi" at some indefinite period, are not admissible.

In such a case, where the debtor has been absent from the State four or five years, working as a contractor in the construction of railroads in an adjoining State, it not appearing that he might not be absent as many years longer, the declarations of the debtor offered to show that he had not abandoned his home or domicil in the State, are not admissible.

Where the prayer was, -- "That if the jury believe, from the evidence, that the debtor had his home in Maryland, and left the State for temporary purposes, but with an intention to return to it, that such a change of place was not, of itself, in law, a change of domicil:" HELD, that upon an issue of domicil, absence from one's domicil for a temporary purpose, attended with an animus revertendi, will not amount to a change of domicil. The subject of inquiry, however, being "commercial citizenship," such an instruction, without qualification, has a tendency to mislead the jury.  

COUNSEL:
Otho Scott, for the appellant:

1st. The declarations of Forwood ought not to have been admitted in evidence, because they were the declarations of an interested party, and not admissible as part of any res gesta. Declarations of an intention to perform a future act, are never part of the res gesta. The declarations offered in evidence and admitted, were not such as to give character to any act which the party was doing at the time the declarations were made. Enos vs. Tuttle, 3 Conn., 250.

2nd. The prayer of the appellee ought not to have been granted, because it was calculated to mislead the jury, inducing them to believe that if Forwood retained his domicil in this State, he was not liable to attachment; when, in fact, he might have his domicil here, and still, by absence from the State, be such a non-resident as would subject his property to attachment. The law [**9]  of the prayer is wholly inapplicable to our attachment laws. A citizen, within the meaning of those laws, has no reference to the political rights of the party, as a citizen. Filed vs. Adreon, 7 Md. 209. Haggart vs. Morgan, 1 Selden, 422.

3rd. The prayer of the appellant ought to have been granted, because the jury, if they believed the facts stated in the prayer, might have found that Forwood had absented himself from the State, and placed himself beyond the reach of the process of the Courts for such a length of time as not to be a citizen, in the meaning of the attachment laws. See authorities above cited, and the Acts of 1795, ch. 56, and 1715, ch. 40. The Act of 1715, ch. 40, does not use the word citizen. The Act of 1795, ch. 56, uses the word evidently as a synonyme for resident. The Act of 1854, ch. 153, uses the words persons or non-residents. The passages from Story, relied on by the appellees, are not applicable here. He was writing upon a different question, as to natural and local allegiance. The case in Selden is a strong authority in favor of our attachment laws, as to the meaning in which the word citizen is used in them.

All the attachment laws being [**10]  in pari materia, must be taken together. The Legislature did not mean to restrict the remedy by attachment by the Act of 1795, it was only intended to facilitate the issuing of the attachment, and to expedite its operation. The practice under that statute has been in conformity with this view.

As to the declarations of the wife, they are clearly inadmissible upon every ground.

H. W. Archer, for the appellee:

1st. The declarations of Forwood were properly admitted, because they were declarations accompanying his acts of removal and remaining out of the State of Maryland. The residence of a party is a mixed fact, made up of the act of removing to and remaining in a place, and the intent accompanying those acts. The declarations are properly admissible to indicate and explain the intentions of the party.

2nd. If Forwood retained his domicil in this State, although he might be liable to attachment as an absentee, he was not liable to be proceeded against under the Act of Assembly, and by the form of proceeding, on which this attachment is based. The Act of 1854 does not apply to this case, because the attachment was issued before this law took effect. The Act of 1715,  [**11]  ch. 40, authorized attachments against all persons absent from the State, and the appellant should have proceeded under this Act, and not under the Act of 1795, as they have done. By the latter Act, citizens and residents are exempted from its operation. 5 H. & J., 130, Shivers vs. Wilson. Story's Conflict of Laws, secs. 47 and 48.

3rd. The prayer of the appellant was properly rejected, because it was calculated to mislead the jury, and did not correctly state the law applicable to the case. We contend, that if Forwood held his domicil here in Maryland, he could only be proceeded against by attachment under the Act of 1715, ch. 40. That he could not be proceeded against under the Act of 1795, because that Act expressly excepts from its operation both citizens and residents of this State, including both political and commercial citizens. Shivers vs. Wilson, 5 H. & J., 130. Field vs. Adreon, 7 Md. 209.  

JUDGES:
The cause was argued before BOWIE, C. J., and BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
BOWIE 

OPINION:

 [*91]  BOWIE, C. J., delivered the opinion of this Court:
Our jurists differ in their views of the policy of the process by attachment. In the earlier decisions, it is said [**12]  to be only a process to compel the appearance of the defendant, not derogatory to, but rather in mitigation of, the severity of the common law process of attachment, and distress infinite and outlawry, which was attended with forfeiture of goods. Vide Barney vs. Patterson, 6 H. & J. 182.
In the more recent opinions, it is declared, the design of these laws is to protect our own citizens from summary proceedings, as well as to give them and the citizens of the United States a remedy against debtors residing out of the reach of the process of the Court. 3 Gill 241. Ibid., 326.
It is admitted, on all hands, to be a special, limited jurisdiction, distinct from and not embraced by its general jurisdiction, conferred by Acts of Assembly on the Court, where its power to act must appear upon the face of the proceedings, or be proved at the trial. 1 Gill 381, Boarman vs. Israel & Patterson.
This Court, in Barr vs. Perry, 3 Gill 313, quoting with approbation from 1 Green. 134, say: "The great purposes of the Act are, by seizing the property of a debtor, to compel his appearance to answer the demand of the plaintiff,  [**13]  when, from non-residence or flight, he is beyond the process of our judicial tribunals, and on failure of appearance, to apply such property to the just end of satisfying his debts. An attachment is an extraordinary, not an ordinary writ. To use it when the debtor is within the reach of ordinary process, is wholly inconsistent with the spirit and design of this mode of procedure."

 [*92]  In some other cases, the Acts directing the manner of suing out attachments and limiting the extent of them, have received a strict construction, as in Shivers vs. Wilson, 5 H. & J. 130; Yerby vs. Lackland, 6 H. & J. 466, 497; where the right to an attachment was held to be confined to citizens of this State, or some one of the United States, in contra-distinction to citizens of the Territories or District of Columbia and of the United States. Citizenship, in these cases, was considered a jurisdictional fact, necessary to be averred and to be proved on the part of the plaintiff. In deference to these decisions, Acts of Assembly were passed, from time to time, to enlarge the jurisdiction and extend the right, until it is made common to all persons, natural or artificial, who [**14]  can sue in our Courts. Vide 1825, ch. 14; 1834, ch. 79; 1854, ch. 153.
The classes of persons against whom this right of attachment existed, continued up to 1854, ch. 153, (and at the date of the attachment in this cause,) to be regulated by the Acts of 1715, ch. 40, and 1795, ch. 56.
The attachment upon warrant, under the Act of 1795, ch. 56, cannot lawfully issue without an affidavit that the debtor "was not a citizen of the State, and not residing therein," or that, being a citizen, "he is actually runaway, absconding, or removed from his place of abode," &c. 1 Gill 372. 3 Gill, 318, Barr vs. Perry. If it does not contain this averment, it is substantially defective, and the judgment of condemnation, upon appeal, will be reversed, and the attachment quashed. "To warrant the proceeding, the non-residence of the debtor is as essential as his indebtedness. It was because he was alleged to be a nonresident, that the defendant in error was enabled to obtain the attachment. If, then, it be true, as the garnishee alleges, that the debtor was a citizen of this State, and residing therein when the attachment was issued, then the proceeding [**15]  was 'in fraudem legis.'" *** "Unless the 

 [*93]  Court can superintend and control the writ by keeping it within the design and intent of the Act, it becomes an engine of great oppression and abuse." 3 Gill 318.
In 6 H. & J. 199, it was decided, attachments under the Act of 1750, ch. 40, would lie against foreigners, whether they have been residents of the State or not. It was admitted the Act is silent as to foreigners "eo nomine," but it was held to be prohibitory only as respects residents; and in the absence of such provision, contemporaneous construction had settled the practice so as to command respect, whatever would be the interpretation, if it was a "vexata questio." Barney vs. Patterson, 6 H. & J. 182.
The word "citizen" has various meanings, viz: "A native of a city, an inhabitant who enjoys the freedom and privileges of the city in which he resides, an inhabitant, a dweller in any city, town or place; a person, native or naturalized, who enjoys the privilege of exercising the elective franchise, or holding real estate." Webster's Dict'y, word citizen. In which of these senses the word was used in the Act of 1795, ch. 56,  [**16]  does not appear from the cases above referred to. If the object of the law was, as some of the earlier cases indicate, an amelioration of the common law process, or the protection of our own citizens from summary process, as well as to give them a remedy against debtors residing out of the process of the Court, as others declare, the largest interpretation of the word would be most consonant to reason and justice, "ubi eadem est ratio eadem est lex;" hence citizen would be synonymous with "inhabitant or permanent resident" in a city or county, as all such are alike entitled to the most enlarged remedial process, and protection from summary proceedings, equally, with native or adopted citizens, enjoying the elective franchise, and the right of purchasing and holding real estate. This construction does not conflict with the provisions of 1715, ch. 40, but gives a cumulative remedy, adapted to the exigencies 

 [*94]  of trade and commerce, which would be otherwise much embarrassed by the delays of the law.
Who is a citizen, in the purview of these Acts, is a mixed question of law and fact, to be found by the jury, under the direction of the Court, (Union Bank vs. Kerr, 7 Md. 88,) [**17]  and does not appear to have been decided in any of the cases preceding that of Field vs. Adreon, 7 Md. 209. It does not appear from the report of that case that the case of 6 H. & J. 191, was referred to. It was assumed, in the argument, that the Acts relating to attachments gave no right of attachment against a resident absconding, but only against a citizen absconding, and drawing from this assumption the deduction that if there was any right of attachment as against a resident absconding, it was only to be exercised against him as a non-resident of the State, for the reason that, "eo instanti," a resident who is not a citizen absconds, he becomes a non-resident. Responding to this argument, the Court said: "This view of the subject might be unanswerable, if the attachment laws contemplated that a debtor should leave the State before he could be said to have absconded. But this argument is a 'non sequitur.' A party may abscond, and subject himself to the operation of the attachment laws against absconding debtors, and still not depart from the limits of the State. In such a case, the party could not be said to be a non-resident of the State, and [**18]  therefore could not be proceeded against by attachment, as such; and unless, under such circumstances, he could be treated as an absconding citizen, his case would not be covered by the attachment laws at all."
"Kennedy, the defendant in this case, it appears, was an unnaturalized Irishman, residing and doing business in Baltimore at the time he absconded, and the question for us to determine, is whether these circumstances are sufficient to constitute him a citizen in contemplation of our attachment laws, inasmuch as we have shown that he could 

 [*95]  not be proceeded against as a non-resident debtor. It certainly never could have been the intention of our Legislature to have made such an invidious distinction in favor of foreign citizens residing in our State, over our own resident citizens, as to exempt the former from being proceeded against as absconding debtors, while the latter were to be held subject to all the penalties of the attachment laws, against debtors absconding to evade their creditors. We are of the opinion, that as the debtor was residing and doing business in Baltimore, he was, in contemplation of our attachment laws, a citizen of this State, and as such,  [**19]  having actually run away to avoid his creditors, was liable to be proceeded against as an absconding debtor. We do not wish to be understood as declaring that the debtor in this case was a citizen for every purpose and in every sense. A party may not be a citizen for political purposes, and yet be a citizen for commercial or business purposes."
If "residing and doing business in the State," constituted the defendant in that case, at the time he absconded, a citizen in contemplation of our attachment laws, not residing and not doing business in the State at the time of issuing the attachment in this, would necessarily bring the defendant within the opposite class of persons described in section 1, 1795, ch. 56, "as persons not being citizens of this State," &c., as well as within the spirit and scope of the law, and therefore liable to attachment on warrant. The case of Adreon vs. Field, like the case at bar, was instituted before and decided independently of, although subsequently to, the Act of 1854, ch. 153. That Act has been referred to as operating on this case. The enacting clause declares: "Every person who doth not reside in this State, and every person who absconds, may [**20]  be made a defendant in an attachment;" adopting the more enlarged view of the process of attachment announced in the last decision. The repealing clause, which rescinds so much of the Act 

 [*96]  of 1795, ch. 56, as relates to citizenship, (it was supposed,) gave immediate effect to the Act. This, as well as the enacting clause, is controlled by the 31st sec. of Art. 3 of the Constitution, which declares: "No law passed by the General Assembly shall take effect until the first of June next after the session at which it may have passed, unless it be otherwise expressly declared;" there being no express declaration in the Act when it should take effect, its operation was suspended until the 1st of June 1854, some twenty days after the attachment in this case was sued out, and did not affect pending cases. With this preliminary view of the law, we will proceed to examine the several exceptions.
The appellant's first exception is to the admissibility of the declarations of the defendant, Forwood. Without expressing any opinion upon the question of res gestae argued at the bar, we are of opinion that this evidence was inadmissible on other grounds. These declarations were offered [**21]  to show an "animus revertendi" in the defendant, at some indefinite period, which, according to the judicial interpretation affixed to the term "citizen" in the case above cited, could not affect the issue in this case, and they were therefore incompetent testimony. They were also offered to show that the defendant had not abandoned his home or domicil in Maryland. Under the ruling in Adreon vs. Field, the issue involved the actual, not constructive, residence or non-residence of the defendant, the "residing and doing business in the State."
Residence and domicil are sometimes distinct things. In the matter of Thompson, 1 Wend. 43, it was decided that residence out of the State, for the purpose of being subject to foreign attachment, did not import that domicil should be out of the State also. 19 Wend. 14, Frost vs. Bresbin. In Haggart vs. Morgan, 1 Sel. 428, the defendant offered to prove that, at the time of taking out the attachment, he was not a non-resident, but a resident of the city of New York, 

 [*97]  that he had been absent about three years, attending a law-suit at New Orleans, and returned in the Spring of 1848;  [**22]  the judge excluded the evidence, on the ground that the offer itself showed the debtor to be a non-resident, within the spirit of the Act. In the case at bar, the defendant had been absent four or five years, and non constat, but he might be absent as many years longer. The evidence being foreign to the issue, should have been excluded.
The 2nd and 3rd exceptions involve virtually the same questions. The appellee prayed the Court to instruct the jury, "That if they believe, from the evidence, that the said Forwood (the defendant debtor) had his home in Maryland, and left the State for temporary purposes, but with an intention to return to it, that such a change of place was not, of itself, in law, a change of domicil," which being granted, the appellant excepted, and then offered a counter instruction, negativing and qualifying the instruction granted by the Court, which being refused, he likewise excepted.
These exceptions present the same points considered upon the exception to the evidence, and turn entirely upon the matters previously discussed.
As an abstract legal proposition, upon an issue of domicil, the appellee's instruction was undoubtedly proper. Absence from one's [**23]  domicil for a temporary purpose, attended with an "animus revertendi," will not amount to a change of domicil. Grier vs. O'Daniel, 1 Amer. Lead. Cases 747.
The subject of inquiry, however, being "commercial citizenship," residing and doing business in the State, the instruction granted had a tendency to mislead the jury, if granted without qualification; and being so granted, and the counter instruction being refused, we think the Court 

 [*98]  below erred on both exceptions, and the judgment should be reversed and procedendo awarded.
Judgment reversed and procedendo awarded. 

11 of 196 DOCUMENTS 

JAMES A. STEWART vs. JOHN P. ROGERS, Surviving Partner of NATHAN ROGERS & CO.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

19 Md. 98; 1862 Md. LEXIS 60 

December 3, 1862, Decided 

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

This was an action brought by the appellee against the appellant, on the 6th of July 1848. A full statement of the pleadings and evidence in the case, as well as all questions of law arising thereunder, will be found in the opinion of this Court.  

DISPOSITION:
Judgment reversed and cause remanded.  

HEADNOTES:

In an action by a surviving partner, the declaration containing the usual common counts, in the form prescribed by the Act of 1856, ch. 112, the evidences of debt were accounts of transactions between the defendant and firms to which the plaintiff was successor, acting as agents for the defendant, under a written agreement -- HELD:

1st. That to enable the plaintiff to recover, it was unnecessary to prove an acknowledgment of indebtedness, and an express promise by the debtor to pay the debt to the plaintiff; and that it was a matter of inference for the jury, from the facts proved, whether there was an assignment and transfer of the accounts from the old firm to the new, and whether the defendant assented to it, and promised, expressly or impliedly, to pay the balance to the plaintiff.

2nd. That the agency, like the accounts, might have been transferred with the knowledge and assent of the defendant, from the old to the new firms, but this transfer and assent must be manifested by some evidence that the defendant knew who constituted the new firms, and recognized them as his agents in the transactions referred to.

3rd. Where an agreement, with the object of securing ship-brokers for advances and liabilities incurred for a vessel or its owner, authorizes them to have said vessel registered in their names, they agreeing to surrender the same to the owner or his assigns, on payment of the amount that may become due them, and giving them the security required by other provisions of the agreement -- HELD: That such an agreement makes an express reservation of a lien on the vessel for advances to said vessel, its owner, or his order, and for all liabilities therefor.

Apart from any agreement, although a mooted question, the better opinion seems to be, that a lien exists in behalf of the "ship's husband," for advances.

The clause of said agreement, relating to the compensation of the agents, was: "We hereby agree and oblige ourselves to manage the said vessels to the best advantage, according to our judgment, for the owner, and to pay to him or his order, from time to time, as they may accrue, any and all net profits arising therefrom, charging for our services such usual commissions as are generally charged" -- HELD: That the agents' commission does not depend on the profitable result of any adventure, if they discharge their duty faithfully.  

COUNSEL:
Daniel E. Henry and Jervis Spencer, for the appellant:

1st. The defendant's motion should have been granted, because the evidence objected to relates to matters of account between the defendant and partnership firms, of which the plaintiff is not the legal representative. The said firms are legally distinct from that of which the plaintiff is the surviving partner, and there is no evidence of any assignment, in writing, of the indebtedness shown by said accounts against the defendant, either to the plaintiff or to the firm of which he is the surviving partner; nor is there evidence of any unwritten equitable assignment of said indebtedness, made with the assent of the defendant, or supported by any promise from him to pay the same to the plaintiff, or to the firm of which he is the surviving partner. Sto. on Part., secs. 254, 253, 244 [**2]  and 334. 2 Robs. Pr., 255. Ch. on Cont., 537. Onion vs. Paul, 1 H. & J., 114. Owings' Excr. vs. Owings, 1 H. & G., 484. Lamar vs. Manro, 10 G. & J., 50. Col. on Part., 62, and note. Gow. on Part., 64, 244, 230, 231.

2nd. The instruction asked in the defendant's 1st and 2nd prayers should have been granted. There being no evidence whatever of an assignment, in writing, to the plaintiff, or the firm of which he is the surviving partner, of the defendant's alleged indebtedness to the firms which existed prior to July 1st, 1857, the Court, in admitting the testimony objected to by the defendant, to go to the jury, must have been of opinion, that the said testimony tended to prove an unwritten equitable assignment of said indebtedness. But such unwritten assignment, if proved, would give the plaintiff no right of action at law, in his own name, against the defendant, unless it was either made with his assent, or the defendant expressly promised to pay. There is no evidence, whatever, that the defendant assented to the making of any such assignment, or that he ever had knowledge of any changes in the firm of Nathan Rogers & Co., other than that communicated by one of the witnesses.  [**3]  In this aspect of the testimony, nothing but an express promise to pay, by the defendant, could give the plaintiff a right to sue him at law.

3rd. That the contract of the 15th of October 1852, created a special agency, and was not such a chose in action as admits of assignment. Nathan Rogers and John P. Rogers, in the firm name of Nathan Rogers & Co., could not take upon themselves the execution and discharge of the agency created by the said contract, and charge the defendant on account thereof, without his knowledge and assent. The Court therefore erred in rejecting the defendant's 3rd prayer. White vs. Davidson, et al., 8 Md. 169.

4th. The instruction asked in the defendant's 4th prayer should have been granted. The losses referred to, all occurred after the first change in the firm; and the right or authority to place any part of any cargo in the barque, on the barque's account, being entirely derived from the agreement of the 15th of October 1852, it could not be assumed by other persons than those who were the parties to the said agreement, nor could they assign it. The defendant would not be responsible for any such losses sustained by other persons than those [**4]  upon whom this right or authority was conferred by said agreement, unless before or at the time of putting in the cargo, he promised or agreed to be responsible therefor. Even a subsequent express promise to that effect would not avail, being nudum pactum.

5th. That the instruction asked in the defendant's 7th prayer ought to have been granted without modification. It was not calculated to mislead the jury, and the propriety of the charges for commission was one of the matters in dispute, and the defendant had a right to the instruction without modification. Whiteford vs. Buckmyer & Adams, 1 Gill, 127. Chitty on Cont., 480. The addition to the prayer is not law. Commissions were to be allowed by the defendant, according to the stipulations of the special agreement creating the agency, and the usage therein referred to. The addition to the prayer asserts, in effect, that commissions were to be paid for all acts performed in execution of the agency, without reference to the agreement; provided only, in the performance of said acts, the party performing them acted with a proper knowledge of, and a proper regard for, the interests of the defendant.

On the point made under the [**5]  first exception, as to the effect of the Act of 1825, ch. 117, see Sothoron vs. Weems, 6 G. & J., 435. Coates vs. Glenn, 5 Md. 121, and 433. See, also, 1 Bouv. Law Dict., "Ship-brokers," 147. Bro. Leg. Max., 387.

Charles F. Mayer, Grayson Eichelberger and Charles F. Goldsborough, for the appellee:

The motion, the subject of the first exception, was properly denied. Upon the testimony following that of the accounts, the defendant is shown to be answerable on the final balance of those accounts to the firm of Nathan Rogers & Co., as it was composed at Nathan Rogers' death; all the firms subsequent to the first one having been in effect, recognized as successors to that first in reference to the management of the vessels, and all matters embraced in the accounts, and all successive balances of account of the respective partnerships being merged, through Nathan Rogers' rightful control of those balances, in the balance finally resulting to Nathan Rogers in his ultimate partnership with John. Besides, the defendant has given no point to the motion, as required by the Act of 1825, ch. 117, but has virtually offered a general prayer, that the plaintiff, on all the evidence,  [**6]  is not entitled to recover.

The first and second prayers (2nd bill of exceptions) are erroneous, at least in requiring as conditions to the plaintiff's recovery, as survivor of the last constituted firm of Nathan Rogers & Co., not only knowledge in the defendant as to who made up that firm, but also an acknowledgment of indebtment to that firm, and, moreover, an express promise to pay the firm or plaintiff what may be claimable on all the transactions and accounts of the preceding firms. At the farthest, either one of the last two terms of the requisition would suffice for title to recover. But a recognition of the substitutional rights of the successive firms, and that to be even implied from circumstances, and to be imputed by law in the absence of defendant's inquiry as to partners, and a promise thence to pay, to be inferred, will suffice for the defendant's liability to the plaintiff, as surviving partner of the last firm; especially as Nathan Rogers, the primary and essential agent in the defendant's view, and his contract, continued the principal in the last and every preceding firm. It was sufficient, too, to have testimony (as we have) whence to infer assignment or surrender [**7]  to Nathan Rogers, and his successive associates, of all claims of extinguished firms. Beside all which, the precedent balances merge in the final claim of the last firm. The balance of each firm's account (on each the defendant being the debtor) was settled in the account with the succeeding firm. Nathan Rogers was competent, as a partner in each firm, so to extinguish those balances. Charles Butler shows, too, that Nathan Rogers and John were authorized to such effect, in being empowered to close all business and accounts. His being examined as a witness, proves him divested of all interest, and in favor of the last firm. 7 H. & J., 213, Barger vs. Collins. An express promise to pay was not necessary, even before the Act of 1829, ch. 50. 4 H. & J., 351, Allstan vs. Contee. 16 Pick., 321, Armsby vs. Farnham. An agency may be recognized by subsequent adoption and recognition. Pars. Merc. Law, 127 and 128. 5 Barn. & Adol., 925, Thompson vs. Percival. 2 Mees. & Wels., 483, Hart vs. Alexander. 4 Metcalf, 12.

The same considerations oppose the third prayer; and Nathan Rogers being a member of the last firm, made it a contingency assumed by defendant, as to who might be his associates [**8]  in the firm. An actual knowledge in defendant on that subject, was not necessary for his liability to the last firm, constituted, as it might be, of any one or more with Nathan Rogers; his not inquiring, (if he did not inquire,) putting at his risk the fact as it might prove to be. Nathan Rogers was the man principally trusted, and Stewart was careless as to who might be associated with him; he makes no complaint on this score, nor of any loss on account of carelessness or negligence. 2 H. & G., Mitchell vs. Dall. John P. Rogers, and all parties connected with these firms, are estopped by these proceedings from ever claiming again against Stewart, and this is all he can in justice demand. 1 Phil. Ev., 360. 3 Id., 370. Story on Part., sec. 328. Pars. Mer. Law, 115. 2 Md. Ch. Dec., 157, Drury vs. Roberts. 31 Eng. L. & Eq. R., 121. 12 Ill. Rep., 298.

Stewart's silence was a waiver of all objection on the score of the change of the members of the partnership. 6 H. & J., Allegre vs. Ins. Co. He never made the objection when it could have been made, although he had every inducement to make it.

The principles asserted in refutation of the first and second prayers, condemn the position [**9]  of the fourth prayer. The sixth prayer seems to claim the discharge of the defendant from all liability for his debt, upon the fallacy that the "Linda Steward" being security for the debt, is (inasmuch as she was, as alleged, unlawfully sold) to be regarded as constructively availed of, at a value equal to the amount of the debt; or, in consequence of the asserted illegal conversion, is to be treated as having been the only resort for payment of the debt. The proposition thus presented, cannot require argument to repel it.

The seventh prayer was granted, so far as to concede that commissions are forfeited where agency was unskilful or negligent, so as to yield no benefit to the defendant, but the Court below, by their clause added to the proposition, declared in effect, and properly, that where there was proper knowledge of the defendant's interests, and proper regard for them, in the conduct of the agent, there could be no unskilfulness nor negligence imputed; and that although no benefit might have flowed from the agency, commissions for even the unsuccessful service were claimable.

The following authorities were also cited on the part of the appellee: 10 East., 104, Peacock [**10]  vs. Harris. 2 Har. Dig. Index, 2203. 2 Cromp. & Jerv., 139, 140, Edensor vs. Hoffman. 10 Eng. C. L. Rep., 438, Garrett & Bodenham, vs. Handley. 13 Md. 413, Fouke vs. Fleming & Douglass. 2 Md. 16, Glenn vs. Gill. 35 Eng. L. & Eq. Rep., 193, In re Langmead's Trusts. 8 Ired. Eq. Rep., 21, Holmes vs. Holmes, et al. 37 Maine, 408, Milliken, et al., vs. Loring.  

JUDGES:
The cause was argued before BOWIE, C. J., and BARTOL and COCHRAN, J.  

OPINIONBY:
BOWIE 

OPINION:

 [*105]  BOWIE, C. J., delivered the opinion of this Court:
The appellees sued the appellant on the 26th July 1858. The nar. contains the usual common counts, in the form prescribed by the Act of 1856, ch. 112, and a special count on an agreement. The defendant pleaded:
1st. That he never was indebted as alleged.
2nd. That he did not agree as alleged.
The plaintiff's original firm were the ship's husband, of two vessels, belonging to the defendant, which were placed under their management and control, on the terms and conditions in two papers, marked N. R. & Co., No. 1, and N. R. & Co., No. 2.
N. R. & Co., No. 1.
BALTIMORE, 18th October, 1852.
Nathan Rogers & Co., Merchants, Baltimore, have full authority to take charge [**11]  of the new barque "Linda Stewart" and brig "Thomas R. Stewart," both of Baltimore, under an arrangement I have made with them, as my agents in the control and management thereof, and the captains and all concerned, will govern themselves accordingly. Given under my hand.
Signed   JAMES A. STEWART.
N. R. & Co., No. 2.
BALTIMORE, Oct. 15th, 1852.
James A. Stewart, of Cambridge, Dorchester county, Md., being the owner of a new barque which he has had built and fitted out, called "Linda Stewart," and also of the brig "Thomas R. Stewart," has placed the said vessels with us, to be managed by us, as his agents, to the best advantage, according to our judgment, and to facilitate the better employment of the said vessels, and to secure us for any necessary advances that we may make for the said vessels, or to James A. Stewart, or any liabilities that we may 

 [*106]  incur on account of the said vessels or order, the said Stewart has signed the necessary certificate, to enable us to have the said barque registered in our names, we hereby agree and oblige ourselves to manage the said vessels to the best advantage, according to our judgment, for the  [**12]   said Stewart, and to pay over to the said Stewart, or his order, from time to time, as they may accrue, any and all net profits arising therefrom, charging for our services such usual commissions as are generally charged; and we further agree and oblige ourselves to surrender up the said vessels and the control thereof to Stewart, his heirs, executors, administrators or assigns, at any time when he or they may desire the same, upon payment to us of any sum or sums that may be due to us, on account of the usual and necessary expenses of the said vessels, more than the profits arising from the said vessels, and all advances that may be made to the said Stewart or order, if any should be made, and securing us for any liabilities that we may incur, as aforesaid. We further agree, in case we put the said vessels, or either of them, in for one-third of the cargo on the vessel's account, where an adequate freight cannot otherwise be obtained, the said vessels, or either of them, or the said Stewart, are to be allowed for one-third of the profits thereon, and in case of loss by the said vessel or vessels being thus interested, the said vessel or vessels, or James A. Stewart,  [**13]  are not to be answerable for any such loss beyond the freight of the said vessel or vessels, respectively, for each respective voyage. It being hereby understood, in any event, that although the said barque is registered in our names, by the authority of the said Stewart, for the purposes aforesaid, that we set up no claim to the same, or any part thereof, or to the brig "Thomas R. Stewart," other than for any advances that may be made by us on her or their account, or to the said James A. Stewart or order, or for liabilities incurred as aforesaid, but the said barque "Linda Stewart" and brig "Thomas 

 [*107]  R. Stewart" belong of right to the said Stewart, and are subject at all times to his disposal, by the said Stewart, his heirs, executors, administrators or assigns, paying to us any advances that we make for him, more than the profits arising from the said vessels, according to this agreement, and securing us for liabilities incurred as aforesaid.
N. ROGERS,
NATHAN ROGERS, Jr.
CHARLES BUTLER.
Test:--Henry Hartbin.
These papers being admitted in evidence, the appellees proved that Nathan Rogers, Nathan Rogers, Jr., and Charles Butler, constituted [**14]  the firm of Nathan Rogers & Co., from the 15th October 1852, (the date of the agreement,) to the 31st December 1853, and transacted all business connected with the management of the vessels, in said firm's name. That Nathan Rogers, Jr., retired from the firm on the 31st December 1853, Nathan Rogers, Sen., and Charles Butler remaining, and constituting the firm until 1st March 1856, when John P. Rogers became a partner, and Nathan Rogers, Sen., Charles Butler and John P. Rogers constituted the firm from 1st March 1856, to July 1857, when Butler retired, and Nathan Rogers, Sen., and John P. Rogers composed the firm from the 1st July 1857, to 2nd July 1858, when N. Rogers, Sen., died, John P. Rogers surviving. That Charles Butler and N. Rogers, Jr., are still living; that John P. Rogers proceeded, as surviving partner, to settle the business of Nathan Rogers & Co., under the name of Nathan Rogers & Co., and continued the same business in the same name, without having any partner.
The appellee further proved that the original firm of N. Rogers & Co. took charge of the brig and barque belonging to the defendant, by virtue of the agreement of the 15th and 18th October 1852, and that [**15]  the brig (until she was lost, shortly after the 27th December 1853) and the said 

 [*108]  barque were managed by the firm of N. Rogers & Co., composed of partners, as before stated, according to the dates above mentioned. The appellee then produced sundry accounts current between the said brig and barque and owners, on the one side, and the firm of N. Rogers & Co. on the other, marked A, B, C, D, E, F, G, O, P and X, running from August 1st, 1853, to 1858, inclusive, which said accounts were produced at the trial, by the defendant, upon notice to produce them given at the bar, by the plaintiff's counsel. The plaintiff proved that account B was delivered in March 1856; C in October 1856; D in January 1857; E in June 1858; F in May 1858; G in June 1858; O in April 1858; P and X in the Fall of 1856; that the barque was sold on the 18th June 1858, by John P. Rogers, at public sale, after due notice, and purchased by plaintiff, for $ 8,000; that the last voyage of the barque commenced in the life of N. Rogers, Sen., and terminated after his death; and all the items in said account, subsequent to the death of N. Rogers, Sen., except in regard to the sale of the barque, were incidental [**16]  and necessary to the winding up of said voyage. The plaintiff also offered in evidence paper No. 6, being a duplicate of the original agreement, dated 27th January 1853, signed by Nathan Rogers and Charles Butler, to shew that the defendant was aware, at the date of No. 6, that N. Rogers, Jr., had retired from the firm. The plaintiff also offered all the correspondence between the firm of Nathan Rogers & Co. and the defendant, from the 18th October 1852, to 12th August 1858.
The plaintiff, by his counsel, having announced that he had closed his testimony, except as to rebutting evidence, the defendant, by his counsel, made the following motion to the Court:
"The defendant, by his counsel, moves the Court to rule out all testimony that has gone to the jury in reference to accounts current, or the items of account between Nathan 

 [*109]  Rogers, Nathan Rogers, Jr., and Charles Butler, trading under the name of N. Rogers & Co., and the defendants, and in reference to accounts current, or the items of account between Nathan Rogers, Charles Butler and John P. Rogers, trading under the name of N. Rogers & Co., for the reason that it was objected to by the defendant when offered, as [**17]  inadmissible, and admitted by the Court, with the understanding that it was to be followed up by the plaintiff, and the plaintiff has closed his testimony, and failed to follow it up by testimony sufficient to make it admissible;" which motion was overruled by the Court, and the defendant excepted.
The defendant having offered certain testimony, and closed, submitted the following prayers, No. 1, No. 2, No. 3, No. 4, No. 5, No. 6, No. 7:
Prayer No. 1.--The defendant, by his counsel, prays the Court to instruct the jury, that if they believe, from the evidence, that Nathan Rogers and John P. Rogers, named in the declaration, on the 1st day of July 1857, formed a partnership for the purpose of conducting the shipping business, under the name and firm of N. Rogers & Co., and that the said Nathan Rogers, before the institution of this suit, departed this life, leaving the said John P. Rogers his surviving partner, that under the pleadings in this cause they cannot find a verdict for the plaintiff on account of any transactions between the defendant and any firm composed of other partners, unless they further believe, from the evidence, that subsequently to the formation of the said [**18]  first mentioned firm, the defendant has acknowledged an indebtedness on account of said transactions, and expressly promised to pay the same to the said first mentioned firm, or to the plaintiff, as the surviving partner thereof.
Prayer No. 2.--The defendant, by his counsel, prays the Court to instruct the jury, that if they believe, from the 

 [*110]  evidence, that the defendant, on the 15th day of October 1852, was the owner of the brig "Thomas R. Stewart," and the barque "Linda Stewart," and that afterwards, on the same day, he placed the said vessels under the management and control of Nathan Rogers, Nathan Rogers, Jr., and Charles Butler, by virtue and according to the terms of the special contract executed by them on that day, and offered in evidence by the plaintiff, and that the said Nathan Rogers, Nathan Rogers, Jr., and Charles Butler were at that time partners, trading under the name and firm of N. Rogers & Co., and with the knowledge and assent of the defendant, afterwards transacted all business connected with the management of said vessels, in the firm and name of N. Rogers & Co., down to the 31st day of December, 1853; and if they further believe, from the evidence,  [**19]  that on said last mentioned day, the said Nathan Rogers, Jr., retired from the said firm, and the said Nathan Rogers and Charles Butler became partners, under the name of N. Rogers & Co., and took upon themselves the management of the said vessels, and continued to manage them in the said firm and name of N. Rogers & Co., down to the 1st day of March 1856, and on the said last mentioned day the said Nathan Rogers, Charles Butler and John P. Rogers, the plaintiff in this action, became partners, under the said firm and name of N. Rogers & Co., and took upon themselves the management of said vessels, and continued to manage them in the said firm and name of N. Rogers & Co., down to the 1st day of July 1857, and that on said last mentioned day the said Charles Butler retired from the said firm, and the said Nathan Rogers and John P. Rogers became partners, under the said firm and name of N. Rogers & Co., and took upon themselves the management of the said vessels, and continued to manage them in the said firm and name of N. Rogers & Co., down to the 2nd day of January 1858, and that on said last mentioned day the said Nathan Rogers departed this 

 [*111]  life, leaving the said John [**20]  P. Rogers his surviving partner, that then they cannot find a verdict for the plaintiff on account of any transactions connected with the management of the said vessels, or either of them, which occurred prior to the date at which the said last mentioned firm was formed, unless they further believe, from the evidence, that the defendant knew who composed said firm, and with such knowledge, acknowledged an indebtedness on account of said transactions, and expressly promised to pay the same to the said last mentioned firm, or to the plaintiff, as the surviving partner thereof.
Prayer No. 3.--That if they believe, from the evidence, the facts mentioned in the preceding prayer, that they cannot find a verdict for the plaintiff, on account of any transactions connected with the management of the said vessels, or either of them, which occurred subsequently to the formation of the said last mentioned firm of Nathan Rogers and John P. Rogers, trading under the name of N. Rogers & Co., unless they further believe, from the evidence, that the defendant knew who the partners were who composed the said firm, and with such knowledge recognized the said firm as his agents, for the management [**21]  of the said vessels, or either of them.
Prayer No. 4.--That if they believe, from the evidence, that the defendant placed the barque "Linda Stewart," of which he was the owner, under the management and control of the firm of N. Rogers & Co., by virtue of the contract, dated on the 15th day of October 1852, and offered in evidence by the plaintiff, and that the said firm was at that time composed of Nathan Rogers, Nathan Rogers, Jr., and Charles Butler, and that afterwards any changes were made in the partners of the said firm, either by the retirement of one or more of the original members thereof, or by the introduction of a new member therein, and that after such change in said firm, any losses occurred to the said 

 [*112]  firm by reason of their putting in the said barque any part of any cargo on the said barque's account, that then the defendant is not responsible in this action for any such loss, unless they further believe, from the evidence, that at or before the time of putting in any such part of any cargo on the said barque's account, the defendant knew who composed the firm so putting in the same, and with such knowledge expressly agreed that he or the said barque [**22]  would be responsible to the firm so putting in for any loss that might result therefrom.
Prayer No. 5.--The defendant, by his counsel, prays the Court to instruct the jury, that all the evidence offered by the plaintiff, as to any charge for interest, are matters within their discretion, in the consideration of the claim of the plaintiff, unless they should find, from the evidence, that there was an express agreement to pay interest, and that in no event should they allow as interest any item of charge for the same, where more than six per cent. per annum has been claimed upon any loan, advance or other indebtedness, unless they should also find, from the evidence, that such item of interest is charged in a foreign country, and that such rate of interest as charged, is allowed by the laws thereof.
Prayer No. 6.--The defendant, by his counsel, prays the Court to instruct the jury, that if they believe, from the evidence, that John P. Rogers made sale of the barque "Linda Stewart," without authority; that then he was guilty of an unlawful conversion of the same, and no charge on account of indebtedness in the management of the same should be allowed by them; that if they believe [**23]  the said barque belonged to James A. Stewart, the defendant, that the said John P. Rogers could not make sale of her without authority from the said Stewart, and if he did so, he was a trespasser; that the agreements (see ante page 105) between James A. Stewart and Nathan Rogers, Sen., Nathan 

 [*113]  Rogers, Jr., and Charles Butler did not authorize the said Nathan Rogers, Sen., Nathan Rogers, Jr., and Charles Butler, or John P. Rogers, to make sale of the said barque.
Prayer No. 7.--That the plaintiff is not entitled to claim commissions for any acts done by him, or those under or through whom he claims, as the agent or agents of the defendant, if the jury should believe, from the evidence, such acts to have been so done; provided they further believe, from the evidence, that in the performance of said acts, the party performing the same was guilty of such negligence or unskilfulness that the defendant derived no benefit therefrom.
The Court made an addition to, and modification of, the 7th prayer, and granted said 7th prayer with the said addition and modification, which is as follows, to wit:
That the plaintiff is not entitled to claim commissions for any acts done [**24]  by him, or those under or through whom he claims, as the agent or agents of the defendant, if the jury should believe, from the evidence, such acts to have been so done; provided they further believe, from the evidence, that in the performance of said acts the party performing the same was guilty of such negligence or unskilfulness that the defendant derived no benefit therefrom; but if the jury shall believe that in the performance of said acts, the party performing the same therein acted with a proper knowledge of, and a proper regard for, the interests of the defendant, then the said plaintiff is entitled to claim commissions for said acts so done, notwithstanding no benefit may have resulted therefrom to the defendant.
The Court granted the 5th prayer of the defendant, but rejected the 1st, 2nd, 3rd, 4th and 6th, and granted the 7th with the modification as above, from which refusal to grant the said prayers and modification of the 7th, the defendant excepted.

 [*114]  The first exception arises on the motion to exclude the plaintiff's testimony as to the accounts and items therein referred to. (See ante page 108.)
The question or point presented by this exception, is [**25]  substantially the same with those in the 1st, 2nd and 4th prayers, viz., that in the absence or failure of evidence of an acknowledgment of indebtedness and express promise by the defendant to pay the plaintiff, the evidence as to the accounts and the items enumerated in the motion should be excluded, because those accounts were "res inter alios actae," and the causes of action represented by those accounts could not be recovered by the plaintiff, without evidence of such acknowledgment of indebtedness and express promise by the defendant. The prayers above referred to, being based upon the same theory, (that an acknowledgment and express promise are necessary to be proved, to enable the plaintiff to recover,) we will consider them and the first exception together. The position assumed by the defendant in his motion and those prayers, if correctly interpreted, is not tenable. Choses in action, between partners and others, like choses in action between individuals, rest in privity of contract, and, at common law, could be sued on only in the name of the parties thereto, or their legal representatives.
Exceptions to the rigid rule of the common law, growing out of the doctrines [**26]  of equitable actions and implied assumpsits, have long been recognized and adopted. In Surtees vs. Hubbard, 4 Esp. Rep. 203, Lord Ellenborough said: "Choses in action, generally, are not assignable. Where a party is entitled to money, and assigns over his interest to another, the mere act of assignment does not entitle the assignee to maintain an action for it. The debtor may refuse his assent; he may have an account against the assignor, and wish to have his set off; but if there is any thing like assent on the part of the holder of the money, 

 [*115]  in that case I think this, which is an equitable action, is maintainable." The principle of this decision was early incorporated in our own adjudications. In Allston vs. Contee, 4 H. & J. 351, it was determined, that where three partners dissolve, and two of them form a second partnership, assuming the debts of the old firm, and, after notice or knowledge of this arrangement, a debtor of the old firm promises to pay the new firm, the latter could sue in its own name, alone, for the debt. This case resembles, in many of its features, that now under consideration. More recently, the decision in [**27]  4 Esp. Rep. has been cited and expressly approved by the Court of Appeals of this State, in Barger & Collins, 7 H. & J. 213. There it was held, that although all the partners must sue on a contract made with the partnership generally, if, after a dissolution, a claim is assigned to one of the parties, the assignee can sue in his own name, by proof that the debtor, with notice of the dissolution and assignment, promised to pay the assignee, and such promise may be implied from the acts of the debtor, as well as expressly proved. The general remark of the Court, in Crawford vs. Brooke, 4 Gill 213, viz., "Prior to the Act of 1829, ch. 51, the assignee of a chose in action, unless it was negotiable by the mercantile law, was obliged to sue in the name of the assignor, or, if he was dead, in that of his personal representative, is to be construed in connection with the subject matter. That was the case of a written assignment, under the Act of 1829, ch. 51, in which the Court held, the assignee, suing in his own name, need neither aver, in his declaration, a promise by the defendant to pay him the account, nor that it was bona fide assigned to him.  [**28]  The Court were speaking of the effect of assignment solely, at common law, in contradistinction to a written assignment, under the Act referred to, and correctly laid down the general rule, without adverting to the effect of an assignment, parol or written, 

 [*116]  followed by assent or assumpsit, express or implied. We think, therefore, the ruling of the Court below, in rejecting the defendant's motion to exclude the testimony as to the accounts and the items thereof, and refusing the defendant's 1st, 2nd and 4th prays, was correct, because they imposed upon the plaintiff the necessity of producing evidence, which the law did not require; it being competent for the jury to find, from the facts proved, whether there was an assignment or transfer of the accounts from the old firm to the new, and whether the defendant assented to it, and promised, expressly or impliedly, to pay the balance to the plaintiff.
The defendant's third prayer refers to the agency established between the original firm of Nathan Rogers & Co. and the defendant, and declares that the transactions connected with the management of the vessels, which occurred subsequently to the formation of the last mentioned [**29]  firm of Nathan Rogers & Co., are not subjects of charge against the defendant, unless he knew who the partners were who composed the said firm, and with such knowledge recognized the said firm as his agents. In contracts of a continuing nature, as guaranties for advancements to be made, or bonds for the faithful discharge of a duty, questions often arise as to their true extent and operation, when there has been any change of the partners, by the retirement of the old, or the admission of the new one; for instance, whether the guarantee would be liable either to the old firm or to the new, for any such advances or credits, after any such change?
"It has been held, that the guarantor would not be liable therefor; and that no such guaranty ought to be extended beyond the actual import of its terms, but that it ought to be limited to advances and credits made by the original firm only." Story on Part., sec. 245. In Weston vs. Barton, 4 Taunt. Rep. 673, 682, Sir James Mansfield said, "It 

 [*117]  is not necessary, now, to enter into the reasons of these decisions, but there may be very good reasons for such constructions. It is very probable that sureties may [**30]  be induced to enter into such a security, by a confidence which they repose in the integrity, diligence, caution and accuracy of one or two of the partners. In the nature of things, there cannot be a partnership consisting of several persons, in which there are not some persons possessing these qualities in a greater degree than the rest, and it may be that the partner dying, or going out, may be the very person on whom the sureties relied. It would, therefore, be very unreasonable to hold the surety responsible after such change." These considerations apply, if possible, more strongly to the agencies of the character in question, where the largest confidence is involved, and the largest capital may be invested.
This prayer is only an assertion of the common law maxim, "delegatus non potest delegare." The agency, like the accounts, might have been transferred with the knowledge and assent of the defendant, from the old to the new firms, but this transfer and assent must be manifested by some evidence that the defendant knew who constituted the new firms, and recognized the said firms as his agents in the management of his vessels, or either of them. Unlike the prayers before mentioned,  [**31]  this did not impose on the plaintiff any illegal requirements; did not prescribe any mode of proof, positive or presumptive, of the knowledge and recognition prior or subsequent, but required the jury to find facts which, it seems to us, were material to the issues, and, as such, should have been granted.
Prayer No. 6, assumes that the plaintiff forfeited all claim to charges for services, management, advancement, &c., if the jury believed he sold the barque without authority. This assumption is erroneous. The plaintiff might, by the course of dealing between the defendant and 

 [*118]  himself, have become entitled to a balance on account against the defendant, and the latter have a claim against the former, for the amount of the vessel improperly sold; the conversion or trespass of the plaintiff would not extinguish the debt of the defendant. This defect justified the Court below in rejecting the prayer, without deciding whether the plaintiff had, under the contract, a power of sale for the general balance due on their advancements and liabilities for the vessel. The contract of the 18th October 1852, recites, that to facilitate the better employment of the said vessels, and to [**32]  secure (the appellants) for any necessary advances that they may make for said vessels, or to James A. Stewart, or any liabilities they may incur on account of said vessels, or order, the said Stewart has signed the necessary certificate to enable them to have the said barque registered in their names, and the appellants agreed to surrender said vessels, or the control thereof, to appellee, or his assigns, upon payment of any sum due them, over and above the nett profits, and all advances to said Stewart, and securing them for all liabilities therefor. There is an express reservation of a lien on the vessels for advances to said vessels, or their owner, or to his order, and all liabilities therefor, with the legal title and possession in the plaintiffs. Independently of such a contract, although a mooted question, the better opinion seems to be, that a lien existed in behalf of the ship's husband, for advances. Story on Part., 444, 20. John. Rep., 611, note 3. A pawnee, at common law, may file a bill in equity against the pawner, for foreclosure and sale, or he may proceed to sell ex mero motu, upon giving due notice of his intention to the pledger. Story on Bail'ts,  [**33]   sec. 310. 2 Kent's Com., 453. It appears in this case, that the defendant was notified of the balance against him for advances, and of the plaintiff's intention to sell.
The modification of the 7th prayer, when taken in connection 

 [*119]  with the points presented, does not seem subject to exception. The proposition presented by the defendant, was, that if the jury believed the vessels were managed so unskilfully that no benefit accrued to the defendant from the services and management of plaintiff, or those through whom he claimed, then the plaintiff was entitled to no commission; an instruction which might, we think, have been safely given, without misdirection. The Court below did not reject this proposition, but added, from abundant caution, a modification not conflicting with it, that if the jury believe that, in the performance of said acts, the party performing the same therein, acted with a proper knowledge of, and a proper regard for, the interests of the defendant, (that is, not unskilfully,) the plaintiff is entitled to claim commissions for acts so done, whether any benefit resulted or not. In other words, that the agent's commission did not depend upon the profitable [**34]  result of the adventure, if he discharged his duty faithfully. No allusion was made to the instruments under which the agent acted, and no presumption was to be drawn unfavorable to its observance; on the contrary, "a proper regard for the interests of the defendant," implied a strict observance of all the obligations of the agent, written or otherwise.
We concur with the Court below in its rulings on the first exception, and in the rejection of the appellant's 1st, 2nd, 4th and 6th prayers, and modification of the 7th, but think there was error in rejecting the defendant's 3rd prayer, and therefore reverse the judgment and remand the cause upon procedendo.
Judgment reversed and cause remanded. 

12 of 196 DOCUMENTS 

HARVEY K. HAIGHT and HENRY O'CONNELL, vs. HENRY BURR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

19 Md. 130; 1862 Md. LEXIS 62 

December 3, 1862, Decided 

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

This is an appeal from an order of the Circuit Court for Baltimore city, appointing a receiver and granting an injunction. The bill was filed on the 15th of February 1862, and the order passed the same day, without notice to the defendants. The answers of the defendants, under oath, were filed on the 17th of the same month. The material averments of the bill are concisely stated in the opinion of this Court.  

DISPOSITION:
Order affirmed and cause remanded.  

HEADNOTES:

The provisions of Art. 5, sec. 21, of the Code, in reference to appeals from orders granting injunctions and appointing receivers, being identical with those of the Act of 1835, ch. 380, must be construed in the same way.

Under the Act of 1835, ch. 380, it has been uniformly decided, that although the necessity of filing an answer is imposed on the defendant as one of the conditions on which his right to appeal depends; yet the Court of Appeals, in its decision, is confined to the case made by the bill, and does not consider the answer.

One of the rules by which Courts of Equity in this State are governed in the appointment of receivers, is: "That fraud, or imminent danger, if the intermediate possession should not be taken by the Court, must be clearly proved, and that unless the necessity be of the most stringent character, the Court will not appoint until the defendant is first heard in response to the application."

A bill in equity, asking for an injunction and the appointment of a receiver, filed by A, one of three partners doing business in this State, against B & C, the other members of the firm -- A & B residing and also doing business under another firm, in Bridgeport, Conn., and C residing and managing the business in Baltimore, Md. -- alleged in substance: That the partnership formed in 1854, and continued to 1857, under articles of agreement, was further continued, by agreement signed by B & C, and by the tacit consent of A, to terminate in July 1861; that there were annual settlements of the business, by the last of which, in July 1861, it appeared that the profits for the year preceding, amounted to several thousand dollars; that since that time C had largely over-drawn his interest in the concern, and B largely diminished his, while A had received nothing; that C had since controlled the business as if it was exclusively his, denying to A any settlement or satisfaction, or even access to the books of the firm; that C had failed to pay the debts of the firm, and was fraudulently appropriating the partnership funds, and diminishing the assets, and threatening "to sell out the whole concen," disregarding, and to the exclusion of, all rights of A; and that C was "of no pecuniary responsibility." HELD: That the case, as made out by the bill, satisfies the requirements of the rule above stated.

The failure of the complainant to exhibit the articles of co-partnership, had it appeared from the bill that they were in his possession, might have been urged, with much force, as a ground for refusing to grant an injunction or appoint a receiver before answer.  

COUNSEL:
Richard J. Gittings and Arthur W. Machen, for the appellants:

We submit that the bill, on its face, did not present a case for the appointment of a receiver. It is well established, as a general rule, that a receiver ought never to be appointed without notice to the opposite party; that such notice was not given, is cause, prima facie, for the reversal of the order. Nusbaum vs. Stein, 12 Md. 322. Blondheim vs. Moore, 11 Md. 365. And it is incumbent on the party applying for the order, to show an "imperious necessity," to justify a departure from the rule. Triebert vs. Burgess, 11 Md. 461. But the special circumstances here, so far from justifying an ex-parte proceeding,  [**2]  very clearly indicated that it was not a case for the exercise of the exceptional power of appointing a receiver, without hearing the opposite party on the application. By his own showing, the complainant had been resting without complaint for a long time; no recent act of injury was alleged, and no facts of any kind were stated, from which it could be reasonably inferred that irreparable injury must be the consequence of any delay. (See cases above cited.) Indeed, the whole cause of complaint resolves itself into vague allegations of his belief that some fraud was intended against him, without a single fraudulent act on which to ground his suspicion. Hubbard vs. Hubbard, 14 Md. 356. It was the case of one partner setting himself against two; one of whom, Haight, stood confessedly clear of any imputation of fraud, and had at least equal claims with the complainant.

The bill discloses that there were articles of partnership, by which the rights and interests of the partners inter se were necessarily determined: such documentary evidence should be shown to the Court, when an ex-parte order is asked, yet these articles of partnership were not produced, nor is their non-production [**3]  accounted for, or excused, nor is any call even made on the defendants to produce them. Waters vs. Taylor, 15 Ves., 15. The same observation may be applied to the entries in the cash book, and to the stated account taken the 1st of July 1861. The defendants were both in Baltimore, within five minutes walk of the Court house, and their representation might have been obtained without loss of time, or possibility of prejudice to the complainant.

The property in question, carriages, and materials for making carriages, was not of such kind as to justify the apprehension of its being very speedily made way with. There was no sufficient ground for such an injunction as was prayed by the complainant, more especially in the absence of the articles of partnership; it was only meant to be in aid of the receivership, and the order ought therefore to be reversed in this respect also.

No counsel appeared for the appellee.  

JUDGES:
The cause was argued before BOWIE, C. J., and BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*132]  BARTOL, J., delivered the opinion of this Court:
This is an appeal from an order of the Circuit Court for Baltimore city, granting an injunction and appointing [**4]  a receiver. By the 21st sec. of the 5th Art. of the Code of Gen. Laws, the right of appeal from such an order is given, "the answer of the party appealing being first filed in the cause." In this respect the provisions of the Code are identical with 

 [*133]  those of the Act of 1835, ch. 380; and must be construed in the same way. According to the uniform course of decisions under the Act of 1835, it has been held, that although the necessity of filing an answer is imposed upon the defendant, as one of the conditions on which his right to appeal depends, yet this Court is confined to the case made by the bill, and does not examine the answer. Wagner vs. Marshall & Cohen, 6 Gill 97. Roman, et al., vs. Strauss, et al., 10 Md. 89. McCann vs. Taylor, et al., 10 Md. 418.
The averments of the bill on this appeal, whatever may be the real state of the case, must be taken as true. 10 Md. 470, Rose & Gauss, vs. Bevan, et al.
Our duty is to determine whether the case stated by the complainant, was one which justified the passage of the order appealed from.
Without stating here all the averments in the bill,  [**5]  we will briefly refer to those allegations on which the equities of the complainant mainly rest. It is alleged, that in the year 1854, he formed a co-partnership with the respondents, Haight and O'Connell, in the business of making, repairing and selling carriages, in the city of Baltimore. The two partners, Burr and Haight, residing at that time in Bridgeport, Connecticut, it was agreed that O'Connell, the other partner, should give his personal attention to the business, and receive a compensation of $ 500 per annum therefor. The bill alleges that the partnership was to continue for three years, and that after the expiration of that time, (in 1857,) articles for the renewal thereof were signed by the respondents, but not by the complainant, though he tacitly assented to the continuance of the old partnership till July last past, (July 1861,) as one during the sufferance or pleasure of the co-partners.
The bill, after stating that settlements had been made every year, up to July last, and setting out the condition 

 [*134]  of the affairs of the firm at the time of the last settlement, in July 1861, charges "that since that time O'Connell has largely over-drawn all his interest [**6]  in the concern, and Haight has largely diminished his, while the complainant has received nothing;" and the bill further charges that the respondent, O'Connell, has carried on the business as if it was his own, exclusively, denying to the complainant any settlement or satisfaction, refusing to allow him to have access to the books of the firm; that he has failed to pay the debts of the firm, although he had funds in hand sufficient for the purpose, leaving the complainant liable for such debts; and the bill further charges that the defendant, O'Connell, is fraudulently appropriating to his own use the funds of the partnership, and that he "threatens, in fraud of the complainant's rights, to sell out the whole concern, (being in possession,) to the exclusion of all rights of your orator; and is actually diminishing the assets of the said firm, which, if lost, your orator is remediless," because it is alleged "that O'Connell is of no pecuniary responsibility."
In the case of Blondheim vs. Moore, 11 Md. 365, the rules by which Courts of Equity in this State are governed in the appointment of receivers, were distinctly stated, and among them is the following: "That [**7]  fraud or imminent danger, if the intermediate possession should not be taken by the Court, must be clearly proved, and that unless the necessity be of the most stringent character, the Court will not appoint until the defendant is first heard in response to the application."
These rules are deduced from an examination of all the cases on the subject. And while we adhere to them, we are of opinion that the case made by this bill of complaint falls within them, and justified the Court below in passing the order, without waiting for the answers of the defendants. See Williamson vs. Wilson, 1 Bland 418. Rosenberg 

 [*135]  & Blondheim, vs. Moore, 11 Md. 376. Speights vs. Peters, 9 Gill 472. Walker vs. House, 4 Md. Ch. Dec. 39. N. C. Railway Co. vs. State, 18 Md. 193.
In the argument of the cause, the appellants have contended that the complainant ought to have exhibited with his bill the articles of co-partnership, so that their terms and the respective rights of the partners might clearly have appeared to the Court. Such a course would certainly have been proper, and if it had [**8]  appeared from the bill that they were in his possession, the failure to produce them might have been urged with much force, as a ground for refusing to grant an injunction or appoint a receiver before answer. See Union Bank vs. Poultney, 8 G. & J. 324. Nusbaum vs. Stein, 12 Md. 315, 319, 321. Mahaney vs. Lazier, 16 Md. 69.
It appears, however, from the bill, that the articles of co-partnership were not in the possession of the complainant. This is our interpretation of the averment in the bill on this subject, which is, "that they were left in the hands of the defendant, O'Connell." In such case, the failure of the complainant to produce them, forms no valid objection, and ought not to deprive him of the relief to which he appears to be entitled upon the allegations of the bill, verified by his oath. If upon the exhibition of the articles of co-partnership by the respondents, and their answers, it shall appear that the complainant is not entitled to a continuance of the injunction, or to have the funds placed in the hands of a receiver, an opportunity will be afforded to the respondents, by the Circuit Court, for an early [**9]  hearing, on a motion to rescind the order complained of; but, as we have said, the proceedings subsequent to the passage of the order, are not before us on this appeal. And being of opinion that the averments of the bill, verified by the oath of the complainant, presented such a case of alleged fraud 

 [*136]  and imminent danger as to justify the action of the Circuit Court, the order appealed from will be affirmed.
Order affirmed and cause remanded. 

13 of 196 DOCUMENTS 

JOHN EVERETT, Administrator of JOHN S. TOUGH, vs. WILLIAM AVERY, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

19 Md. 136; 1862 Md. LEXIS 63 

December 3, 1862, Decided 

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

The appeal in this case is from two orders of the Circuit Court for Allegany county, sitting as a Court of Equity, the first passed on the 28th of March 1862, granting an injunction, and the second passed on the 21st of April 1862, refusing to dissolve said injunction, and appointing receivers.

The bill of complaint and petition of the appellees, was filed on the 26th of March 1862, and the answer of the appellant on the 7th of April following. The bill alleges that John S. Tough, deceased, was at the time of his death, and had been for some years previous, engaged in mining coal, in Allegany county, Maryland, and that he died intestate in September 1861, largely indebted to the several complainants, and to others in his employ, for wages then due them for work and labor done for him in his said business of mining, and which had been due and owing to them respectively for the space of more than thirty days preceding his death; and then proceeds to set forth specially the indebtedness to each of the complainants, the account of each against the said deceased being exhibited with the bill, showing in detail [**2]  the items of said indebtedness. The bill further charges that administration upon the personal estate of said deceased had been granted by the Orphans' Court of Baltimore city, to John Everett, of Allegany county, who had taken possession of said personal estate, and advertized the same for sale, "without any regard or respect to the rights or liens" of the complainants thereupon, which they claim and set up under the provisions of Art. 1, secs. 99 to 103, of the Code of Public Local Laws; "that the estate of the said deceased is utterly and hopelessly insolvent; that the only hope or prospect the petitioners have of securing their said claims, is in enforcing the lien upon the personal estate of the said John S. Tough, deceased; and that if the said personal estate is permitted to be sold by the said administrator, the petitioners will, in all probability, lose their entire claims, and that the danger of losing their said claims is imminent and pressing. The prayer of the bill is for an injunction and the appointment of a receiver, and for general relief.

The answer of the defendant admits, as alleged in the bill, the death and intestacy of the said John S. Tough, that previous [**3]  to his death, he had been engaged in the business of mining, in Allegany county, that letters of administration upon the estate of the said deceased had been granted to the respondent, his proceedings as administrator, and the insolvency of the estate of his intestate. As to the other material allegations of the bill, the defendant neither admits nor denies them, but puts the complainants to the proof of the same.

The answer then charges: "That John S. Tough, in his lifetime, purchased of the defendant three undivided fourth parts of certain mining and leasehold rights and privileges acquired by this defendant from Douglas Percy and others, lessees of John Neff, under an agreement of lease bearing date the 13th of May 1854, filed with the answer as exhibit 'A;' that the said John S. Tough also purchased from the defendant, at the same time, certain improvements, fixtures and personal property adapted to and required for the operations of mining, including about fifty mining cars, railways in and from the mine to the railroad of the Cumberland Coal and Iron Company, load-house, about thirty sets of mining tools, about three horses, one mule, two sets of weigh scales," &c., (a schedule [**4]  whereof is at said mine,) "for the sum of six thousand dollars, as will appear on reference to a copy of the assignment therefor, herewith filed, marked exhibit 'B,' of which said sum the said John S. Tough has paid to this defendant all except the amount of two promissory notes herewith filed, which are wholly due and unpaid, and were secured to be paid, or intended so to be, by a mortgage of all of said property so sold as aforesaid by this defendant to the said John S. Tough, bearing date the fourth day of December 1857, an official copy of which is herewith filed, marked exhibit 'E,' and which said two promissory notes and mortgage were given to secure the payment of the balance of purchase money remaining unpaid, as aforesaid." The defendant, in his said answer, further charges: "That as to the said three-fourths of the said mining tools," &c., "he has and is entitled, by virtue of his deed of mortgage aforesaid, to the possession thereof, and a lien thereon for the payment of the said two promissory notes, and that his said lien is prior and superior to the liens sought to be established by the complainants.

By a subsequent agreement, signed by the solicitors of the complainants [**5]  and defendant, filed on the 18th of April 1862, it was agreed that the motions to dissolve the injunction and for the appointment of a receiver, should be submitted and argued before the Court, and "that for the purpose of obtaining a decision upon both of said motions, it shall be assumed and admitted that the claims of the plaintiffs or petitioners, as alleged in their petition, are to be regarded and considered as proved, as alleged in said petition. After the decision of the Court is announced, (in case the same is in favor of said petitioners,) it is further agreed that no decree shall be actually passed until the claims of said petitioners are proved in such manner as the Court may prescribe."

On the 21st of April 1862, the Court below (WEISEL, J.) passed the following order:

"The motions to dissolve the injunction heretofore granted in this cause, and for the appointment of a receiver, have been argued together, and very ably, by the counsel on both sides. Whatever doubts arose when the injunction was ordered, have been dispelled by the argument, and by further reflection and consideration. The grounds taken in the answer against the injunction and the appointment [**6]  of a receiver, will be disposed of by considering the following points:

"First.--Does that portion of Article 1st, of the Code of Public Laws of the State, embraced in the sections from 99 to 103, inclusive, under which the petition in this cause has been filed, and these proceedings had, create a lien upon the personal estate of an individual or corporation indebted in the manner therein specified? There is no express language so declaring or creating a lien, in the sections referred to, but in construing them together, the implication is too strong to be resisted. The object of the law is to afford security to certain creditors for their claims, and to effect this, it authorizes certain proceedings to subject all the personal estate of the debtor to their payment, and provides for their priority over certain other debts and liens. It goes further, and in section 103, makes it the duty of any sheriff or coroner who may have an execution or attachment against the property of such debtor, to exempt from the execution in his hands, and from levy, a sufficiency of the property to pay such indebtedness, and diligently to inquire whether such indebtedness exists; and subjects his official [**7]  bond to suit for any damages suffered by them, in consequence of his neglect or refusal so to inquire, and so to exempt from execution. This proceeding on the part of the sheriff is required at his hands in cases where no proceedings have been instituted for the appointment of a receiver, or to perfect the right the creditor may have under the law. The property, therefore, is subject to the claims before any proceedings are instituted or adjudication had, as provided by the law for satisfaction, and this, it is conceived, operates an absolute lien upon the property.

"Secondly.--A lien being thus created, the next question that arises in the case is, whether, in the event of the death of the individual debtor, before any proceedings have been instituted under the law, the lien so survives that it can be enforced against the property in the hands of his administrator; or, in other words, does the property pass into his hands discharged from the lien?

"The claims provided for in the law, are such as arise upon contract, and the general rule is, that in contracts the right of action survives the death of a party bound or liable, and can be enforced against the administrator.  [**8]  This, however, is the case of a lien attaching to property that has passed into the hands of an administrator, and no reason can be perceived why it should be regarded in a light different from that which attends every other case of lien. It would not be pretended that if the property were bound by a bill of sale or mortgage, it would pass to the administrator, discharged from it. The administrator takes it cum onere; otherwise the very object of the law would be defeated by the death, and contractors entering into service, and furnishing materials, one day, upon the faith of the law and the security it afforded for their engagements, might, in a few days afterwards, by the death of the employer, be defeated of all their rights arising under the law. One of the considerations which enter into an arrangement for security, is a provision or guard in case of death. In the absence of such a security, the law disposes of the estate of the deceased in its own way. And the authorities cited are in support of this view. That in 10 Peters, 596, (Brent, use of U. S., vs. Bank of Washington,) is regarded in point. There the lien upon bank stock was enforced against the administrator of the deceased [**9]  holder, and by the appointment of a trustee to make the sale. And although the orders in that case were based upon an agreement of parties, that agreement was regarded by all the counsel, and by the high tribunal that decided the cause, as in conformity with the rules and principles of law governing in a case in that predicament. The leading case relied on, contra, is the one cited from 1 Wm. Bl., 284, (Stevens vs. Evans, et al.,) in which a distress warrant was issued against an administrator, to enforce the payment of poor-rates due by a decedent. This does not, in fact, establish a different doctrine, but rather concedes the view taken by this Court; for one of the judges regarded the matter sought to be enforced, as a quasi offence, and not a debt; and, on that account, gave the opinion that the remedy only reached the offender, and not his representative. The other learned judge expressed his doubts as to the character of the claim, but was not disposed to subject the administrator to the warrant of distress without a previous summons. For these reasons, I regard the property as subject to the lien in the hands of this administrator.

"Thirdly.--How is this lien to be enforced?  [**10]  It is contended that the property, being in the hands of an administrator, it cannot be disturbed, but whatever rights the petitioners have, must be adjudicated in the Orphans' Court that granted the letters.

"In a general sense, all the personal effects and estate of a deceased, devolve upon his administrator, after letters granted, to be administered and distributed under the law and orders of the Orphans' Court, in such case provided. But this does not deprive any one who has a specific lien or claim upon the property, of his legal rights or remedies, except where the law itself may provide otherwise. The law creating this lien is special in its purpose and in its remedy. To perfect and enforce it, but one mode is given, and that in the Circuit Court for the county. It cannot be perfected and placed in a condition to be satisfied and paid, without the action and judgment of the Circuit Court, the tribunal specified in sec. 100, which also provides against any delay in trying and settling the claims presented, if denied or disputed. Under the testamentary system, no such proceeding could be entertained by the Orphans' Court. Nor could the claimant so prove and establish his [**11]  claim as an absolute lien against the assets of the deceased, as to secure his priority, by any of the rules provided by that system. He can only do it, in the judgment of this Court, in the mode and manner provided for by the law which creates the lien. And this being a public local law, it prevails over the public general law, if a conflict arises between them.

"Our insolvent system has been cited and relied on as illustrating the law in this case in favor of the administrator. By the terms of the insolvent laws, and the decisions upon them by the Court of Appeals of the State, all the property of the insolvent passes to the trustee, but he takes it not only with the liens in all their order and effect upon it, but with full provisions for their ascertainment and allowance. How far these laws, being of a public general nature, would place the property involved in this controversy in the hands of a trustee, in case of insolvency, would remain to be considered when such a case should arise.

"The question as to the priority of the claims of the petitioners, if established, over certain other debts and liens specified or referred to in sec. 102, or over the mortgage set up [**12]  by the defendant in his answer, does not arise at this stage of the controversy, and need not now be adverted to, except simply to state that if such mortgage were declared a priority, that would not arrest the appointment of a receiver on claims admitted or proved, inasmuch as the surplus, at all events, would be bound by the lien, and the same proceedings would be necessary to enforce the lien against the property.

"Entertaining these views, the Court will overrule the motion to dissolve the injunction, and will proceed to appoint a receiver, and pass the necessary decree in the premises, whenever the issues presented by the answers, on the claims exhibited with the petition, shall have been tried and disposed of, and the existence of said claims, or any of them, shall have been determined."

The cause was submitted to the Court, on notes filed by both sides.  

DISPOSITION:
Orders affirmed and cause remanded.  

HEADNOTES:

Under Art. 1, of the Code of Public Local Laws of this State, secs. 99 to 103, the personal estate of an individual or corporation, indebted in the manner therein specified, is subject to the claims of the creditor, before any proceedings are instituted, or adjudication had, as provided by the law for satisfaction. This constitutes, in effect, an absolute lien upon the property.

In the event of the death of the individual debtor, before any proceedings have been instituted under the law, the lien so survives, that it can be enforced against the property of the deceased debtor, in the hands of his administrator; or, in other words, the property passes into the hands of the administrator charged with the lien.

In a general sense, all the personal effects and estate of a deceased devolve upon his administrator, after letters granted, to be administered and distributed under the law and orders of the Orphans' Court, in such case provided; but the law creating the lien in this case, is special in its purpose and remedy. To perfect and enforce it, but one mode is given, and that in the Circuit Court for the county.

Questions of priority of claims, as between parties claiming a lien under the Art. of the Code above referred to, and one claiming a mortgage lien set forth in the answer, do not properly arise under a motion to dissolve an injunction and for the appointment of a receiver.  

COUNSEL:
William Walsh and G. A. & C. B. Thruston, for the appellant:

Art. 1, secs. 99 to 103, of the Code of Public Local Laws, give no lien per se. A lien attaches to the thing, and follows it into the hands of all persons. It is a property in the thing. But the Code, as above,  [**13]  merely gives a priority of payment, to be worked out as against the employer, through the agency of a receiver, selling and bringing the proceeds in for distribution. If a lien exists, the Court, and not the words of the Code, must make it. You cannot go beyond the strict words of the law against creditors. The 103rd section does not apply to a case where no petition is filed. The same construction would extend it to a case, where there was no default of the employer by the lapse of thirty days. It is a forfeiture of the employer's right of control of his property, and cannot be extended. The sheriff has no power to ascertain the indebtedness. He cannot summon a jury or examine witnesses. He has no means of preventing collusion between the employer and employees. What is the execution creditor to do, if by collusion the employer and employees assert an indebtedness to the latter equal to the whole property? The law will not destroy rights, without giving means of contesting the asserted claims of employees. Moreover, the sheriff could not have an execution against Tough's goods after his death, so that the section does not apply to this case.

Compare Stat. 8 Ann, ch. 14, sec.  [**14]  1; 2 Tidd's Pr., 1014; Waring vs. Dogberry, 1 Str., 97; Lee, et al., vs. Lopes, 15 East., 230; Brandling vs. Barrington, 6 Barn. & Cress., 467. The Act of Congress of March 3rd, 1797, sec. 5, creates no lien. U. S. vs. Fisher, 2 Cr., 390. U. S. vs. Hooe, 3 Cr., 90. Laws against common right, are confined to their strict terms. Hooper vs. Mayor & C. C. of Balto., 12 Md. 465. Warner vs. Fowler, 8 Md. 25. Special privileges are confined to the very case made by the Act conferring them. Shivers vs. Wilson, 5 H. & J., 130. Kerr vs. State, use of Levy Ct., 3 H. & J., 560.

Under the mechanic's lien law of 1835, ch. 205, which, by the Act of 1845, ch. 287, is to be construed as a remedial statute, conferring general jurisdiction, the lien must rest on the very terms of the law, which must be literally complied with. Greenway vs. Turner, 4 Md. 296. Carson vs. White, 6 Gill, 27. Thomas vs. Barber, 10 Md. 381. Hess, Reid, et al., vs. Poultney & Brown, 10 Md. 257. Denmead vs. Bank of Balto., 9 Md. 179. McKim & Kennedy, vs. Mason, et al., 3 Md. Ch. Dec., 186. Baker vs. Winter, 15 Md. 1. Pue vs. Hetzel, 16 Md. 539.

Under the Act of 1845, ch. 176, the word [**15]  "machine," used in that Act, has been limited to apply to stationary machinery--so unwilling are the Courts to extend liens to moveable personal property. New Eng. Car-Spring Co. vs. Balto. & Ohio R. R. Co., 11 Md. 81. The law discourages secret liens. They make business dangerous, and destroy credit, the life of commerce. Where the possession of the property accompanies the lien, the evils do not exist. Equity never favors a lien or priority against creditors. Am. Soc. of Lanc'r, ex-parte, 6 Ves., 99. Ross, ex-parte, 6 Ves., 804. Stamford Friendly Society, ex-parte, 15 Ves., 280. These authorities are to the effect, that such preferences should be brought within the very Act giving them, and show the reluctance with which equity yields to them against general creditors.

The portion of the Code relied on, only applies as between employer and employee. If that relation does not exist, there can be no case. The proceeding is based on a personal default of the employer, and seizes his property to prevent his making away with it. The administrator is not the employer. He could not be guilty of the default. Neither can he make away with the property. He takes it under the law,  [**16]  gives bond, and can only sell by order of the tribunal appointing him. He holds for all the creditors, according to their rights and priorities. The reason of the law fails as to him. It would be absurd to require his appointment, and then that the same system of law should give a right to take the whole estate out of his hands, without any fault alleged. An administrator cannot be called before a special tribunal, unless named in the Act creating it. Ailway vs. Burrows, 1 Doug., 263. Wiltshire vs. Lloyd, 1 Doug., 382. Stevens vs. Evans, 1 Wm. Bl., 284. Jenkins vs. Bryant, 7 Sim., 171. Hale's Adm'r vs. Howe's Exc'r., 4 H. & J., 448. Acts of 1791, ch. 68, and 1819, ch. 167, sec. 1. Purviance vs. Glenn, 8 Md. 202. Act of 1805, ch. 110, sec. 10.

Upon the death of a party, the testamentary law fixes the rights of his creditors, and seizes upon his property, and no proceeding in invitum can be taken to get a lien or priority on it over other creditors. The rights vest eo instanti, like an act of bankruptcy, or petition in insolvency. Bank of Md. vs. State, 6 G. & J., 230. Heapy vs. Parris, 6 T. R., 368. A judgment cannot be docketed, under 4 and 5 Wm. & Mary, ch. 20, after a defendant's [**17]  death, to get a preference on the personalty. Douglas vs. Yollop, 2 Burr., 722. Hickey vs. Hayter, 6 T. R., 384. Hopwood vs. Watts, 5 Barn. & Adol., 1056. A fi. fa. cannot issue as before the death, so as to complete the lien. Heapy vs. Parris, 6 T. R., 368. A right to a ship cannot be perfected in equity under the Registry Acts, after the death. Hibbert vs. Rolleston, 3 Bro. C. C., 571. A lien which the law, and not the contract of the party gives, must be perfected before the rights of other creditors intervene, or it cannot be asserted against them. It is not a lien till every thing is done to make it so. Kinlock vs. Craig, 3 T. R., 119. Montagu on Lien, 81, &c. The right to obtain a lien, if proceedings were taken in time, is very different from a consummated lien, and does not entitle to a preference. A landlord can distrain for rent and get a lien, but if he has not done it before the tenant applies for the benefit of the insolvent laws, he has no preference over general creditors. Buckey vs. Snouffer, 10 Md. 149. So on a judgment, the creditor might issue a fi. fa., and get a right to satisfaction out of the personalty, before all other creditors; but if he has not done [**18]  it before his debtor's death, he must come in on a footing with other judgment creditors. Before our statute of 1836, ch. 192, rent was only a specialty debt, and not a preferred claim over bonds and judgments, though the right to distrain existed. The right of the landlord to distrain on the tenant's goods after his death, is no exception. The goods are liable in respect of the place where they are found, and not in respect of the person to whom they belong. Anon. 1 Atk., 103. It is not true that an administrator or the property in his hands, is liable for a duty cast by law upon his intestate. He is not liable on covenants implied by law, Adams vs. Gibney, 6 Bing., 656; nor is he liable on a penal statute, 1 Ch. Pl., 91; nor for setting out tithes, 1 Sid., 88; 1 Wend., 40; nor for the default of the sheriff, People vs. Gibbs, 9 Wend., 29.

Even if the petitioners could be relieved against general creditors, they cannot against the defendant as mortgagee. The mortgage embraces all the property, as is stated in the answer and not denied. It puts the title in the defendant, and constitutes him the legal owner. He has the possession also. No Court can disturb the possession of the [**19]  legal owner, with equities superior to those of the parties seeking its aid. Furlong & Miller vs. Edwards, 3 Md. 99. The Code, as relied on, does not divest property. It does not take Everett's property to pay Tough's debts. The mortgage existed prior to the work done. The claims filed show this. The claims of petitioners could not date back and take property belonging to another before they existed. When they began to work, they had notice of the mortgage by the recording of it. The 102nd section refers to liens created after the work begun, perhaps after a lis pendens under the law. Otherwise a mortgagee is in a dangerous way, if the mortgagor should turn miner after the date of the mortgage, and not pay his employees. He could cut down the whole security. See Const. of U. S., Art. 1, sec. 10; and 10 Peters, 596, Brent, use of U. S., vs. B'k of Wash'n; 1 Peters, 386, 440, Conrad vs. Atlantic Insurance Co.; 9 G. & J., 408 to 412, The University of Md. vs. Williams.

Equity will not interfere with administrators in Maryland, by appointing a receiver. The Code does not give the Court the power, and general principles must govern the case. Alexander vs. Stewart, 8 G. & J., 226.  [**20]  Lee & Wife, vs. Price, 12 Md. 253. Estate of Colvin, 3 Md. Ch. Dec., 278. Ellicott vs. Warford, 4 Md. 80. Blondheim vs. Moore, 11 Md. 365. Title can be made only through the administrator. Smith vs. Wilson, Adm'r of Owens, 17 Md. 460. Cecil, Adm'r of Owens, vs. Negro Rose, 17 Md. 93. Grimes & Wife, vs. Talbott, et al., 14 Md. 169. The appellees have no lien, and, at most, a priority in the general distribution, which they can assert by action on the bond. Murray vs. Ridley's Adm'x, 3 H. & McH., 171. Carroll vs. Norwood, 1 H. & J., 471. State vs. Rogers & Wife, 2 H. & McH., 198. The State, in those cases, established its priority in that way, and the testamentary law then existing made no provision for it. It was a common law preference, as the Act of 1650 was repealed by the Act of 1692, as stated in 6 G. & J., 223. Or such priority might be asserted under a general bill for distribution of assets. Ward vs. Painter, 2 Beas., 85. Barton vs. Tattersall, 1 Russ. & Mylne, 237. Wells & Miller, vs. Canton Co., et al., 3 Md. 234.

The Code, vol. 1, Art. 1, sec. 2, makes the local law prevail over the general law, where there is a conflict. If there is any conflict [**21]  here, the local law, giving the preference claimed, would incorporate itself into the testamentary system, as to this estate, and govern the distribution in the Orphans' Court, and authorize that Court to allow the appellees' claims. The construction insisted on by the appellees, would overturn the whole testamentary system, and nullify the proceedings of the Orphans' Court, which, by the general laws, have sole jurisdiction of testamentary affairs. The administrator's bond is to administer according to law; hence whatever rights or preferences the law gives a party, he can assert it in a suit on the bond. Commonwealth, use of U. S., vs. Lewis, 6 Binney, 266.

The administrator, defending the rights of all interested in the estate, is entitled to costs, as between solicitor and client, even if the orders are affirmed. Compton vs. Barnes, 4 Gill, 55. Young, ex-parte. 8 Gill, 285. Nelson vs. Pierson, 8 Md. 300. Young vs. Everest, 1 Russ. & Mylne, 426. Decker vs. Miller, 2 Paige, 149. Bennett vs. Going, 1 Molloy, 529.

Thomas Devecmon, for the appellees:

1st. The appellees, upon the allegations of the bill, were entitled to the injunction. On this point we refer simply [**22]  to the allegations of the bill, which, if true in fact, as admitted to be, and if correct in law, entitle them to the injunction. Are they correct in law? This inquiry properly arises on the argument of the second point, and will be there considered.

2nd. After the answer was filed, and after the agreement, the injunction could not be dissolved. The answer sets up three defences only. We will refer to them separately. The first of these is, that the sections 99 to 103, of Art. 1, of the Code of Public Local Laws, do not create a lien upon the personal estate. In view of the language of those sections, all argument here would be useless. The second defence is, that conceding the lien to be created, it was lost by the death of the party against whom it existed, as it was not asserted against him in his lifetime. The executor and administrator take the title of the decedents only, and are bound by whatever bound their decedents, and cannot assert any other control over the property of their decedents than the parties themselves could assert, if living. 2 Wms. on Exc'rs, 1410 and 1465, 3rd Am. Ed. Hyde vs. Skinner, 2 P. Wms., 197. Pollitt vs. Parsons, 2 H. & J., 61. Allein vs. Sharp,  [**23]  7 G. & J., 96 and 108. 10 Peters, 596, Brent, use of U. S., vs. Bank of Wash'n. This last case, it is humbly submitted, is conclusive on this point. It was a purely statutory lien, enforced against an administrator, which is identically this case. The case in 1 Wm. Bl., 284, for the reason stated by the learned judge below, in his opinion, is not in conflict with our position. Besides, there can be no doubt about the right of distraining the goods of a deceased party in the hands of his executor or administrator. Longwell & Ege, vs. Ridinger, 1 Gill, 57. Braithwaite vs. Cooksey, 1 Hy. Bl., 465. Arch. Land. & Ten., 111. Code, vol. 1, Art. 93, sec. 91.

If, therefore, the lien is created by the law, and is not destroyed or lost by the death of the party, the third defence in the answer raises a question as to how the lien is to be enforced? We say, clearly in the mode provided by the statute giving the lien; and it could not be enforced in the Orphans' Court. The testamentary system does not authorize the administrator to pay such liens, unless they be established in accordance with the statute. (See sec. 116, of Art. 93, of the Code.) Miller, Adm'r of Pottinger, vs. Dorsey, 9  [**24]  Md. 317. It is humbly submitted, that the dictum in 6 G. & J., 230, is not correct in law, as attempted to be here applied. Besides, if the testamentary system, as contained in the Code, should be deemed in conflict with the Public Local Laws, the latter must prevail. Art. 1, sec. 11, of the Code of Pub. Gen. Laws.

3rd. If the appellees be correct as to the preceding points, viz., that they are entitled to a lien that can be enforced against the administrator, then the decree appointing receivers, was a necessary incident, and is undoubtedly the proper remedy. Code of Pub. Loc. Laws, Art. 1, sec. 99.  

OPINION:

 [*151]  BY THE COURT.--After mature consideration of the questions presented by this appeal, and an examination of the authorities cited in argument, this Court concurs with the Judge of the Circuit Court, in the opinion pronounced by him, and, for the reasons assigned in his opinion, this Court will pass a decree affirming the orders appealed from, and remanding the cause.
Orders affirmed and cause remanded. 

14 of 196 DOCUMENTS 

THE PRESIDENT AND DIRECTORS OF THE BALTO. FIRE INS. CO., vs. BOUDINOT S. LONEY ET AL., AND BOUDINOT S. LONEY ET AL., vs. THE PRESIDENT AND DIRECTORS OF THE BALTO. FIRE INS. CO.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

20 Md. 20; 1862 Md. LEXIS 72 

DECEMBER, 1862, Decided 

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

This was an action brought on the 28th of August 1857, by Loney and Co., against the Baltimore Fire Insurance Company, upon a policy of insurance issued by said company, on the 27th of August 1855, which was continued by renewals to July 1st, 1857. This Court in its opinion having concisely stated all the leading facts and points raised by the proceedings in the cause, it will be only necessary here to present portions of that statement in detail.

Exception. The plaintiffs proved that when the policies sued on were issued and for several years before, they were largely engaged in business as commission merchants in Baltimore--having occasionally on hand small quantities of their own goods, but for the most part, selling and having on hand goods consigned to them on commission, which was specially their business, and these facts were generally known in the City of Baltimore;--that by their course of business with their customers, and especially with those by whom the consigned goods destroyed by the fire were so consigned to them, they received 2 1/2 per cent. commission for sale, 2 1/2 for guaranty, and 1 per cent. for [**2]  insurance and expenses--being bound by their said course of dealing to insure the goods so consigned;--that they were likewise accustomed to make advances on consignments of goods, and had advanced on the consigned goods destroyed by fire as aforesaid, $ 39,903.39, previously to said fire;-- that after said fire, they duly accounted to their respective consignors for the goods so destroyed, at the prices set forth in their statements to the defendants--deducting therefrom the amount of their said advances and commissions.

They also proved by George B. Coale, that he had been, for many years, connected with the business of insurance, having acted, and then acting, for various companies, and among others for some of those by whom the out of town policies in this case were issued, that he knew, and had, for many years known, the plaintiffs as engaged extensively in the dry goods commission business, and supposed they were generally so known to be in the City of Baltimore. That if he had been called upon to insure them under the applications herein before referred to, he would have understood from their occupation and business, and the large amount of their insurances, that they intended [**3]  to insure not only their own goods, but also the goods held on consignment, it being the general practice for commission merchants in Baltimore to insure goods held on consignment, and to have quantities of such goods in store.

The said witness further testified, that on the assumption that the defendants were not liable on any goods but the plaintiffs' own, and that the defendants were entitled to contribution from the other policies by which the plaintiffs were insured, as well on goods held on commission as on their own goods, the proper mode of adjustment, and one which he had adopted as underwriters' agent, would be as follows: Inasmuch as the policies blending both classes, do not designate the proportion insured on each, and assuming that the defendants were only entitled to contribution from the amount underwritten on the classes of goods which they had insured, it was necessary to arrive at the latter amount by an arbitrary rule; the fair rule seemed to be, to assume that the plaintiffs intended to insure each class of goods in the ratio which its amount bore to the amount at risk. Thus if the plaintiffs' own goods were of equal value with those held on commission, that [**4]  one-half of each policy, blending both classes, was intended to apply to each.

The plaintiffs further proved that the companies by which the blended policies aforementioned were underwritten, paid the several amounts so by them underwritten, in gross, without any adjustment or contribution.

The plaintiffs further proved by their book-keeper, Mr. Anthony, that they usually had on hand, comparatively small quantities of goods of their own, for sale, and the amount which they happened to have of their own at the time of the fire aforesaid, was unusually large.

It was admitted by the defendants, that if the plaintiffs had declared, in their several applications, or otherwise, to the defendants, that they desired to be insured on goods held in trust or on commission, the defendants would not have regarded that fact as material to the risk, but would have still insured them at the same rate of premium, which they asked, and received upon the policies in controversy.

The plaintiffs then offered six prayers, (all of which, except the sixth, were rejected,) of the following effect, viz:

1st. That, if at the time of issuing the policies sued on, the plaintiffs were,  [**5]  and for a long time theretofore had been, and down to the happening of the loss continued to be, commission merchants in the City of Baltimore, whose business it was to sell goods sent to them on commission, and were extensively and almost exclusively engaged in the sale of such goods, and were commonly and publicly known so to be, and it was the custom of commission merchants in good business in Baltimore, to have on hand, in store, large quantities of goods sent to them, to be sold on commission, and the defendants at the time of issuing said policies, had knowledge of said facts, and received the plaintiffs' applications for insurance with such knowledge, and prepared and issued the policies in suit accordingly, and in reference thereto, and without requesting any information further, in regard to the ownership or character of the goods on which insurance was so applied for, and if the plaintiffs in good faith sought and desired to be insured upon their said applications, as to all the goods which were, or might be in said warehouse, and the defendants knew that fact, and did not, nevertheless, inform the plaintiffs, or suggest to them, that the policies so issued were not intended [**6]  to cover, and would not be held by the underwriters as covering any goods said plaintiffs might hold on commission or in trust, and have in said warehouse, and if said goods so held in trust or on commission, would not have been regarded by the defendants as a more hazardous risk than goods belonging to the plaintiffs absolutely, and would have been insured by the defendants as well, at the same premium, then the whole of the goods held by the plaintiffs in said warehouse, at the time of said fire, whether absolutely their own, or held in trust or on commission, were covered by the policies in suit.

2d. That even if the defendants had not knowledge of said facts, the goods on which they had a lien for commissions and advances, are to be regarded, for the purposes of these suits, to the extent of said lien, as their own goods, and covered by the defendants' policies.

3rd. That the plaintiffs had the right to apply the amount received by them from the out of town policies; first, to the goods held by them on commission, and not covered by the amount of their advances and commission; secondly, to the amounts covered by said advances and commissions; and that the plaintiffs were [**7]  entitled to recover in these suits, the balance, if any, of their said advances and commissions, together with the value of the goods owned by them absolutely, provided the same did not exceed the amount of the policies sued on, with interest.

4th. That if the plaintiffs were not entitled to the instructions asked for as aforesaid, the mode of adjustment stated by Mr. Coale was the proper one for apportioning the losses.

5th. That on the admissions stated in the first prayer, and the hypothesis of the second, the plaintiffs were entitled to recover the full amount of the policies in suit, if the loss of the plaintiffs on the value of the goods absolutely their own, together with their commissions and advances exceeding the whole amount underwritten by said policies.

6th. If, however, the Court should not adopt the rule of compensation set up in the last preceding prayer, that the plaintiffs were entitled to recover the value of the goods absolutely their own, to be divided between the defendants in the ratio of the amounts of their policies respectively.

The defendants also offered three prayers, to the following effect.

1st. If the policies were made on the [**8]  basis of the applications of the plaintiffs, and the plaintiffs did not, at the time of making said applications, or afterwards, declare to the defendants that the goods or any part of them specified in said application were held by them in trust or on commission, that the policies did not cover goods held on commission or in trust.

2d. That on the hypothesis of the first prayer, the defendants' policies did not cover goods held on commission, although it may have been generally known in the City of Baltimore, that in the course of their business, they generally had on hand large amounts of goods so held.

3rd. That if $ 16,855.02 of the goods destroyed by fire, and no more, belonged to the plaintiffs, and the out of town companies were solvent, each defendant, was responsible on its policy, only in proportion to the amount of its subscriptions as shown by the respective policies.

The Court below, (MARTIN, J.,) granted the defendants' 1st and 2nd prayers, and rejected the third.

The Court also assigned the following reasons for its refusal of the defendants' third prayer, to which, as well as to said refusal, the defendants excepted:

In deciding that this is [**9]  not a case for apportionment, I place my opinion upon the ground that the insurance affected by the plaintiffs, in the Alliance and other out of town companies, was a compound insurance, not affected upon the individual and private goods of the plaintiff for an ascertained sum, and then specifically for an ascertained amount upon the goods held by the plaintiffs on commission, but on the blended stock of the individual goods and the goods held on commission by the plaintiffs, without any specific sum being insured on each class or parcel of goods specifically.

That a case of this description is not a case for apportionment, within the clause on that subject in the policy of the defendants, is, I think, clear upon principle, and is directly affirmed by the Superior Court of New York, in the case of The Howard Insurance Company vs. Scribner, 5 Hill, 298.

The plaintiffs excepted to the refusal of their 1st, 2nd, 3rd, 4th and 5th prayers, and to the granting of the defendants' 1st and 2nd prayers.

The verdict of the jury was for the plaintiffs. Both plaintiffs and defendants appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

FIRE INSURANCE POLICY, CONSTRUCTION OF. -- Where a policy of insurance provides that, "goods held in trust or on commission are to be declared as such, otherwise the policy will not extend to cover such property," and it appears that the insured have obtained their insurance without making any specific statement of the nature of their interest in the goods destroyed; HELD: --

1st. That the insurer has a right to limit the extent of the risk by such condition.

2nd. That a knowledge of that condition by the insured must be presumed from their acceptance of the policy, and it will have the effect of limiting the risk to the goods which belong to them.

Where the policy is entirely consistent with the terms of the application, free from ambiguity, and susceptible of a consistent construction in all its parts, and if there be a mistake in the insurance effected it be not attributable to the insurer, the Court will not look beyond the terms of the policy in ascertaining its meaning and legal effect.

Loney and Co. were insured in a Baltimore Company on their own goods, and in sundry foreign companies on their own goods and goods held on commission. The policy in the first company contained a clause that "the insured shall not in case of loss or damage be entitled to demand or recover on this policy any greater proportion of the loss sustained than the amount hereby insured, shall bear to the whole amount of the several insurances." The whole insurances were insufficient to cover the value of the goods lost. The Baltimore Company refused to pay more than the proportion of the losses as stated in the above clause; HELD, that the foreign policies were not within the effect of the covenant relating to other insurances, and that the Baltimore Company is not entitled to any abatement of its liability on this policy by reason of them.

WAIVER, INTEREST. -- A policy provided for the payment of losses within sixty days after the same should be ascertained and proved. The loss was proved and demand of payment made within the time limited. The loss was also admitted by the insurance company, which offered payment of what it assumed to be the amount of its liability, but refused payment of the full amount of the insurance; HELD: That the condition as to the time of payment was waived, and that the sum for which the insurers were bound, became due and recoverable with interest from the date of the demand.

CONTRIBUTION. -- The right to contribution is based upon the concurrence of the policies, and the necessary incident of its existence is, that the several insurers should be bound with equal certainty, and in the same sense for the same loss.  

COUNSEL:
Wm. Schley, for the Insurance Companies:

In support of the [**10]  appeals, by the insurance companies, the following points will be maintained:

I. The plaintiffs' 6th prayer ought to have been rejected.

(1st.) It claimed interest from 7th May 1857. The fire occurred 14th April 1857. By the 9th condition of the policy of the Baltimore Fire Insurance Company, the loss is payable within 60 days, after the loss shall have been ascertained and proved. Computing, therefore, even from the very day of the fire, the term of 60 days would have extended to 13th June 1857; computing from the affidavit of proof of loss, 18th August, the term of 60 days would have extended to 17th October. Even if the denial of liability to the extent claimed, on the 7th May, was improper, still the time of payment, as fixed by contract, was not thereby accelerated. If the principal was not due on the 7th May, interest could not accrue from that day. Allegre vs. Ins. Co., 6 H. & J. 413. Newson's Adm'r vs. Douglas, 7 H. & J. 417.

(2nd.) The 6th prayer refers to the 5th prayer for its hypothesis; and the 5th prayer refers to the 1st and 2nd prayers, which are dissimilar; and, in some respects, repugnant. It is impossible to decide, on what precise hypothesis [**11]  of facts, the prayer was based.

(3rd.) But, apart from minor objections, the 6th prayer is essentially wrong. It denies to the defendants any right of contribution, on any basis whatever, from the other insurances. The learned Judge granted the prayer, in reliance on the case of the Howard Ins. Co., vs. Scribner, 5 Hill, 298; a case, which has been cited, occasionally, in other Courts, but has never been followed or adopted in any reported case, and has been denounced as unsound. It declares that the covenant, limiting the liability of the insurer to a mere proportion of the loss, is inapplicable and inofficious, where there is another insurance, covering the same property, but covering, also, additional property. Identity of the subject--without more and without less-- identity in omnibus, precise and exact--is made the criterion of contribution; the sine qua non of the occurrence of the casus foederis. In our Court, in the case of The Associated Fireman's Insurance Company, vs. Assum, 5 Md. 165, its authority was disregarded; and the principle of the decision, in that case, is directly the other way.

The companies will insist, that the other insurances covered the goods [**12]  of the assured, belonging to them, as their own property, notwithstanding that said other insurances, also, covered property held in trust or on commission. Covering both classes of property, those other insurances covered each class. If property, belonging to either class, was destroyed by fire, the assured was entitled to indemnity for such loss, from those other insurances, even if no part of the other class was injured. The risk assumed was not limited to a blended loss. Those other insurances covered every article of goods in the warehouse, whether belonging to the assured, as their own property, or held by them in trust. The covenant is unambiguous and comprehensive; plainly embracing "all merchandise--their own or held by them, in trust or on commission."

(4th.) It is obvious, that if the defendants' third prayer ought to have been granted, then the plaintiffs' 6th prayer ought to have been rejected. But, even if the defendants' 3rd prayer was properly refused, still, if the theory of contribution on the basis of a double proportion, suggested by the witness, Coale, and affirmed by the plaintiffs' 5th prayer, was the true rule, then the 6th prayer ought not to have been [**13]  granted.

II. The defendants' third prayer ought to have been granted. The covenant is plain and unambiguous. The casus foederis, making a proportionate liability, the basis of adjustment has occurred. The premises insured, by the defendants' policy, mean the assured's own goods. Now the other insurances clearly cover the defendants' own goods, notwithstanding those other insurances also cover goods held on commission. The policy of the defendants, and the other policies, therefore, cover the same subject;-- the assured, whose interest is covered by the policy, have the same interest covered by the said other insurances; and, in all, the risk taken is the same, to wit: against loss or damage by fire. Suppose that the goods destroyed had been only those belonging to the assured in their own right, and further, that the said other insurances were the only insurances covering the same, would not the assured be entitled, as against said other insurances, to indemnity, notwithstanding said other insurances also covered property, held on commission? And are not said other insurances still liable, notwithstanding the risk assumed by the defendant? And if this be so, are there not several [**14]  insurances on the same premises?

The following authorities will be relied on in support of this position. Angell on Fire Ins., secs. 26, 88. Whiting vs. Independent Mut. Ins. Co., 15 Md. 297, and cases there cited. Storer vs. Elliott Ins. Co., 45 Maine 179. Haley vs. Dor. Ins. Co., 1 Allen, Mass., 536. 1 Phil. on Ins., sec. 366. 2 Id., sec. 1263, note 2.

On the appeals by the assured, the following points will be maintained, on the part of the insurance companies:

III. The plaintiffs' 1st prayer was properly rejected. The policy of the defendants is to be construed by its terms. If not in conformity with the actual contract, relief should be sought in equity. Extrinsic facts, where there is no ambiguity, cannot vary the construction of the written contract. Even if facts had been given in evidence, which would afford ground for an action of deceit, or would justify an imputation upon the contract, as originating in fraud, still, such facts could not avail, in an action, founded exclusively on the contract, and having no other basis. The manifest meaning of the contract is, to limit the premises insured, to goods in which the assured had an interest as proprietors.  [**15]  Carpenter vs. Providence Co., 16 Peters, 496, 506, 509, 500. Parks vs. General Ins. Co., 5 Pick., 34, 36. Col. Ins. Co., vs. Lawrence, 2 Peters, 25, 48, 49. 2 Marshall on Insurance, 789. Angell on Insurance, sec. 74, and note 4, page 115. Halhead vs. Young, 36 Law & Eq., 109. Hughes vs. Tindall, Id., 415. Glendale Woollen Co., vs. Protection Ins. Co., 21 Conn. R. 19.

The same views and authorities apply to the plaintiffs' 2nd, 3rd and 5th prayers.

IV. The plaintiffs' 4th prayer affirms the propriety and application of the rule of adjustment, as stated by Coale, in his testimony. In case of general average, in marine insurance, adjustment, on this principle, has been commended as just. But where there is a fixed amount of insurance on goods, (embracing goods belonging to the assured, himself, and goods held by him on commission,) without any apportionment, it is an insurance for its full amount, on each class; and the insurer takes the risk for the full amount, on each class, if loss of one class should happen to such amount. Abatement, from contribution, is a qualification of the consequences of such liability. Restriction, in case of loss of goods of both classes, to an [**16]  amount not exceeding the amount insured, is another incident, qualifying the consequences of liability. But the construction of the contract does not depend on the actual or possible consequences; but upon the meaning and intention. If the proposition, asserted in the last preceding point, is not true, then the doctrine of the plaintiffs' 5th prayer would be correct. The difficulty of ascertaining the contributory amount of the other insurances results, as a consequence, from the confusion, introduced by the assured; and which ought not to enlarge the responsibility of these companies. It cannot affect the principle of contribution; although it may embarrass adjustment, in practice.

R. Johnson and S. Teakle Wallis, for Loney & Co.

1. Insurance is recognized by all writers as preeminently a contract of good faith, uberimae fidei. Policies ought, without too literal adherence to the language of them, to be held binding upon underwriters in the sense, and to the extent in which they knew at the time of issuing them, the assured understood them. It is immaterial how the defendants knew the manner in which the goods were held--if they actually did know it. If an underwriter looks [**17]  at a house, and misdescribes it in the policy which he prepares, it is protected nevertheless. These policies, issued with a knowledge of what the plaintiffs meant to insure, were either intended by both parties to cover the goods held on commission, and if so meant, ought to be so construed--or the defendants, in bad faith, which the plaintiffs are unwilling to impute to them, had in view and concealed from the plaintiffs the condition requiring goods held on commission to be described as such, and purposely described them otherwise. If the latter, they ought not to be allowed the benefit of the condition so fraudulently concealed. An underwriter who insures a ship, which he knows has arrived, is compelled to pay back the premium, although nothing in the policy imposes on him such an obligation; because good faith requires it. Effect can only be given to the same principle here by nullifying the condition, in reference to which the bad faith was practised, or by allowing to the information, which the defendants are assumed to have had, the same weight as if it had been embodied in the written applications. National Fire Insurance Company vs. Crane, 16 Md. 260. Perry County Insurance [**18]  Company vs. Stewart, 19 Penna. R., 45 and 46. Howard Fire Insurance Company vs. Bruner, 23 Penna. R., 50, 56 and 57. Wilson vs. Genessee Mutual Insurance Company, 16 Barbour, N. Y. Sup. Ct., 511, 512, &c. Marshal vs. Columbia Insurance Company, 7 Foster, N. H., 157. Franklin Ins. Co., vs. Hewitt, 3 B. Monroe, 231. AEtna Insurance Company vs. Jackson, 16 B. Munroe, 242, 243, &c. Duncan vs. Sun Ins. Co., 12 La. An. Rep., 486.

2. Even if the defendants had not knowledge of the facts relied on in the first prayer, the goods on which the plaintiffs had a lien for commissions and advances, were, within the meaning of the policies, to the extent of such lien, their own goods. Franklin Fire Insurance Company vs. Coates & Glenn, 14 Md. 285. Russel vs. Union Insurance Company, 1 W. C. C. R., 409. De Forrest vs. Fulton Fire Insurance Company, 1 Hall N. Y., 84. Lee vs. Barreda, 16 Md. 198 and 99. Mut. Ins. Co., vs. Deale, 18 Md. 47.

3. The policies, by their language, insured the plaintiffs from all loss on the goods in question. They are not so insured unless they are fully indemnified for all they would have made out of them; at least to the full extent of those belonging [**19]  to them absolutely, and of their advances and commissions on those consigned. But, for the condition in reference to goods held on commission, the policies would have covered the interest of the consignors as well as consignees. That condition was only intended to guard against liability for the interest of strangers, of whose integrity the underwriters knew nothing. The plaintiffs were as much interested in protecting the consigned goods, to the extent of their claims against them, and their personal integrity was as good a guarantee therefore, as if they were their own absolute property. Waters vs. Monarch Ins. Co., 85 E. C. L., 870. De Forrest vs. Fulton Fire Ins. Co., 1 Hall, 84. 1 Arnould on Ins., 246, 247. 2 Am. L. Ca., 575. Stitwell vs. Staples, 6 Duer, 63. Same case, 5 Smith, 401.

4. The plaintiffs were entitled to apply the amounts received by them from other companies, whose policies covered two classes of goods, to that class not covered by the defendants' policies, and the Court ought so to marshal them as to make all the policies together cover, as far as practicable, the entire loss. That contribution from "blended," or "non-concurrent policies," as they are called,  [**20]  is not allowed, when the effect of it would be to leave any part of the loss unpaid. The insured ought to suffer no loss so long as there is a specific policy unexhausted. Insurance Monitor, 111, 112. Kane vs. Commercial Ins. Co., 8 Johnson, 229. Bousfield vs. Barnes, 4 Campbell, 228. Minturn vs. Columbian Ins. Co., 10 Johnson, 75. KcKim vs. The Phoenix Ins. Co., 2 W. C. C. R., 89. 1 Phillips on Insurance, secs. 367, 368, 124.

5. The clause in reference to apportionment of losses among different companies, like the "American Clause" in marine policies, is only applicable to cases of partial loss, or of over insurance; not to a case where all of the policies together amount to less than the loss sustained. 2 Philips on Insurance, sec. 1263. 2 Am. L. Ca., 651. 1 Philips on Insurance, 367 and 368.

6. The out of town policies, insuring a gross amount on the plaintiffs' own goods, and those held on commission, without specifying the amount intended to be insured on each, were not such as entitled the defendants to an apportionment of the loss with respect to them, and the defendants were therefore bound to the same extent as if such other policies had not been in existence. Howard [**21]  Ins. Co., vs. Scribner, 5 Hill, 298.

7. That if these be proper cases for apportionment, Coale's mode of adjustment was the proper one. Whiting, use of Sun Mutual Ins. Co., vs. Independent Ins. Co., 15 Md. 297.

8. Has interest been allowed from the proper period? Upon the positive refusal of the insurance company to pay the loss, the plaintiff, the insured, had the right to sue, viz: on the 7th of April 1857. If the contract was such as would at law bear interest, the right to claim interest arose simultaneously with the right to demand the principal. The question of interest is one for the jury. Newson vs. Douglas, 7 H. & J. 453. A minor is entitled to claim interest from the time when the guardian was bound to pay the principal. Fridge vs. State, 3 G. & J. 117. Dennison vs. Lee & Wife, 6 G. & J. 385, 386, affirms the case of Newson vs. Douglas. When the demand was made, the Baltimore Company offered to pay, but refused to pay more than the proportion of the insurance assumed by them to be the extent of their liability. If this offer had been accepted, Loney & Co. would have sustained a heavy loss. Cui bono to have waited for the expiration of the sixty days?  [**22]  Under the case of Allegre vs. Ins. Co., and Ins. Co., vs. Coates & Glenn, we were entitled to sue and claim interest at once.

The Court would not send the case back if they should disagree with us on this point.  

JUDGES:
The cause was argued before BOWIE, C. J., and GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
COCHRAN 

OPINION:

 [*33]  COCHRAN, J., delivered the opinion of this Court:
This suit was brought on a policy of insurance, issued by the appellant on the 27th of August 1855, and continued 

 [*34]  by successive renewals to the 1st of July 1857, by which the appellees, as co-partners, were insured to the amount of $ 5,000 against loss by fire on goods contained in the 3rd story of a brick warehouse on Hanover St., in the City of Baltimore. The policy contains a condition that it should not cover goods held in trust or on commission, unless they were so declared, and also clauses providing that other insurances on the same property should be endorsed upon it; and in case of such other insurance and of subsequent loss, that the appellees should not be entitled to demand or recover any greater portion of the loss or damage sustained, than the amount thereby insured should bear to the whole [**23]  amount of the several insurances effected. On the 25th of December 1855, the appellees obtained another insurance on the same goods to the amount of $ 10,000, afterwards increased to $ 15,000, by a policy containing the same clauses and conditions, issued by the Fireman's Insurance Company of Baltimore. The property insured was subsequently removed, by permission of that company and the appellant, to No. 35, S. Charles St. Prior to the 14th of April 1857, the appellees had affected, and then held, in addition to these insurances, six other policies for an aggregate amount of $ 65,000, issued by foreign companies, containing clauses requiring goods held on commission to be so specified, and in which the goods insured were substantially described as their own, or held by them for sale on commission. On the date last mentioned, the stock of goods amounting in value to $ 88,113.38, on which these several insurances were obtained, was destroyed by fire. A portion of the goods amounting to $ 16,855.02, belonged to the appellees, and the remainder, valued at $ 71,258.36, on which they had a lien for commissions and advances to the amount of $ 36,909.39, were held by them for sale on commission.  [**24]  The loss was $ 3,113.38 in excess of the whole amount of insurance, and the portion covered by the foreign policies was paid without reference to apportionment or contribution, leaving the balance of the loss $ 23,113.38 

 [*35]  to be satisfied by the policies of the two Baltimore companies, to the extent of their respective liabilities. The conditions of the policy as to preliminary proof, were complied with, and a demand made for payment of the whole amount insured by it on the 7th day of May 1857; but the appellant, contending that its liability was limited to loss on the appellees' own goods, and proportional thereon to the aggregate amount of all the policies, offered, in satisfaction thereof, to pay the sum of $ 991.13, which the appellees refused to accept. Evidence was offered at the trial without exception, showing that the appellees were Commission Merchants chiefly engaged in selling goods consigned to them for sale on commission, that they were generally known to be so engaged, and the custom of such merchants, of keeping large quantities of commission goods in store, and also tending to show, that the appellant received the application for this insurance, and issued [**25]  this policy with a knowledge of these facts.
Several prayers, involving the construction of the policy, were offered on both sides, all of which depend on the determination of two questions: 1st, as to the extent of the risk covered by the policy; and 2nd, as to the amount of the appellants' liability upon it.
The appellees contended, on the hypothesis that the appellant knew their application was intended to be for insurance on all the goods destroyed, both their own and those held on commission, that the policy should be so construed as to give effect to that intention; or in other words, that the extent of the risk underwritten should be ascertained from that fact, and not from the terms of the policy. The rule presented in this proposition, we think, cannot be applied here. The authorities referred to in support of the construction sought, present facts so far different from those in this case, as to involve other principles. In all of them the construction turned either upon the meaning of terms, which by usage or custom had acquired a particular sense, or on evidence that the insurer, after a 

 [*36]  full disclosure of facts material to the risk, and in violation of an obligation [**26]  implied therefrom, neglected to insert in the policy such a reference to those facts as was essential to its validity as a contract of insurance. Parol evidence was admitted in one class, not to change or vary the contract, but to explain the meaning of the terms used, and in the other to prevent the insurer from obtaining the advantage of a contract, which, through its default, would otherwise have been without obligation and void.
The policy in this case is entirely consistent with the terms of the application, free from ambiguity, and susceptible of a consistent construction in all its parts, and if there was mistake or error in the insurance effected, it does not appear to be one attributable to the appellant, nor such as to authorize us to look beyond the terms of the policy in ascertaining its meaning and legal effect. We think it cannot be excepted from the operation of the general rule requiring written contracts to be interpreted by their own terms, without regard to extrinsic facts.  Mumford vs. Hallet, 1 Johns. 439. Mellen & Nesmith vs. National Ins. Co., 1 Hall 452. Phil. Ins., 47, 319.
The appellees appear to have obtained [**27]  this insurance without making any specific statement of the nature of their interest in the goods destroyed, and had there been no express condition to the contrary, their interest in the goods held on commission, might have been covered by the policy, for upon that state of fact, the material question would have been, whether the failure to inform the insurer that the goods were held on commission, would have affected the risk, and the admission, that the communication of that fact, would not have changed the rate of premium, might have been relied on as concluding it. But that is not the question here. This policy expressly provides that it was not to cover goods held on commission unless they were so declared, or as we understand it, so expressed as to appear, in some form, in the description of the goods intended to be covered by it. The right of the insurer, to 

 [*37]  limit the extent of the risk by that condition, cannot be doubted.  Philips vs. Knox County Ins. Co., 20 Ohio 174. Briehta vs. Lafayette Ins. Co., 2 Hall 372. 2 Am. L. Ca. 642. And as we must presume, from the acceptance of the policy by the appellees, that they had [**28]  knowledge of that condition, we think it should have the contemplated effect of limiting the risk to the goods which belonged to them.
The next inquiry is as to the amount of liability on the policy, for the loss sustained on those goods. As we have before stated, the appellees held seven other policies, six of which, issued by foreign companies, covered the goods owned by them as well as those held on commission, on blended risks to the amount of $ 65,000, the remaining one for $ 15,000, issued by the Fireman's Insurance Company of Baltimore, covering their own goods only. There is no question in regard to the latter policy, but as the others covered the goods of the appellees, although blended in the risk with those held on commission, the appellant insists that they are insurances within the meaning and effect of the covenant relating to other insurances; and, therefore, that it is not liable for any greater portion of the loss on those goods, than the amount insured on this policy bears to the aggregate amount of all the policies. In considering this proposition, it is proper to observe that the contract of insurance is one of indemnity, intended to protect the insured from loss,  [**29]  to the amount of the risk assumed, whether it be on one or several policies, and in general, that the provisions of the contract are favorably construed for the insured in furtherance of that principle.
The covenant in this policy limiting the liability upon it to a share of the loss in proportion to the amount of all the policies, was not intended to impair the right of the appellees to the full indemnity which would otherwise be afforded by them, but to ascertain the amount of the appellant's liability, subject to that right, by an apportionment of the loss among such of the insurers of the same 

 [*38]  goods, as by the terms of their contracts should stand in the relation of co-sureties for any loss upon them. To establish that relation the policies should cover distinct and specific risks on the same subject, and in that sense constitute a double insurance, upon which, without the covenant in question, the liabilities of the several insurers, except as to the differences in the amounts underwritten, would be identical, and their rights to contribution reciprocal. The right to contribution is based upon the concurrence of the policies, and the necessary incident of its existence [**30]  is that the several insurers should be bound with equal certainty, and in the same sense, for the same loss.  Lucas vs. Jefferson Ins. Co., 6 Cow. 635. Angel Ins., 134, 135. As we understand the authorities, this covenant relates only to policies which constitute a double insurance, or in other words, it contemplates only such insurances as fix upon the insurers liabilities for this loss, which the insured could not resort to for the satisfaction of other losses, and the question here is, whether the foreign policies were insurances of that character. The loss of the appellees, on the goods held on commission, exceeded the whole amount of their insurance on those policies, and if the covenant relating to other insurances be permitted to have the effect claimed, it is obvious that the right of the appellees to indemnity upon them, would be defeated to the extent of the apportionment to them of the loss sustained on their own goods. Those policies, as we have seen, covered both classes of the goods without any specific apportionment of the amounts insured to either, and the application of them under the covenant to one class only, in derogation of the right of [**31]  the insured to indemnity for loss on the other, could be effected only by an arbitrary restriction of the scope and terms of the policies.
The covenant proceeds on the theory, that the insurers are to be discharged from some portions of their respective liabilities by an apportionment of the loss to the several policies. In that respect, it proposes a mutual and common 

 [*39]  advantage to all the insurers affected by it, entirely consistent with the protection of the insured, and there is no apparent reason why it should be permitted to have effect upon other insurances, when from the nature of the case, the common advantage contemplated by it becomes impossible. An apportionment to the foreign policies of the loss on the goods covered by this policy, without any reciprocal operation in the way of releasing the foreign insurers from any portion of the amounts of their several liabilities, would effect a disproportionment of the risks to the rates of insurances on the respective policies by a practical reduction of the appellant's liability.
In that aspect of the case, the appellant alone would derive the benefits of a condition intended to operate for the common advantage of [**32]  such other insurers as might be affected by it. It cannot be pretended in that view, that the the appellant and foreign insurers, were bound with equal certainty and in the same sense, for the loss on the appellees' goods, or that there was any mutuality in their relations and rights, as insurers of the same subject. We do not wish to be understood as saying, that the insurers on the home and foreign policies could under no circumstances have been equally bound and liable as co-sureties for that loss, for had the loss on the commission goods been less than the amount of insurance on the foreign policies, it might well be said that the excess of that insurance would have been applicable to the loss insured against by the home policies, and the liabilities and rights of the foreign insurers to the extent of that excess, identical with those of the home insurers. But in this case the loss on the commission goods was sufficient to exhaust all the policies covering them, and as the insurers on the home and foreign policies, in view of the right of the insured to full indemnity, became subject to different liabilities by the loss as it accrued, we think the foreign policies were not within [**33]  the effect of the covenant relating to other insurances, and that the appellant is not entitled to any abatement 

 [*40]  of its liability on this policy by reason of them.  Haley vs. Dorchester Mutual Ins. Co., 1 Allen 536. Howard Ins. Co., vs. Scribner, 5 Hill 298.
The objection made to the allowance of interest from the 7th of May 1857, when payment was demanded, is founded on a clause contained in the 9th condition of the policy, providing for the payment of loss within sixty days after the same should be ascertained and proved. There was no dispute as to the right of the appellees, to interest after the time fixed for payment by that condition, it being an established rule that interest may be claimed from the time the principal sum becomes payable by the terms of the policy.  McLaughlin vs. Wash. Co. Mutual Ins. Co., 23 Wend. 525. Hallet vs. Phoenix Ins. Co., 2 Wash. C. C. R. 279. The principle involved is the same as in cases where, by the expiration of the time limited for the payment of a principal sum, interest becomes payable for the time the sum due may be withheld; and the objection made [**34]  to the allowance of interest in this case, presents the question, whether the amount to be paid on this policy, was due and recoverable on the day from which the interest allowed was computed. We have no doubt on that point. It appears from the statement of facts made by agreement of the parties, that the conditions of the policy as to preliminary proof, were complied with, and a demand of payment made on the date mentioned, and that the appellant thereupon admitted the loss, and offered payment of what it assumed to be the amount of its liability, but in fact a less sum than it was bound for, and then, denying all further obligation on the policy, refused to pay any other or larger sum.
Upon these facts we must hold that the condition as to the time of payment was waived, and that the sum for which the appellant was bound then became due and recoverable. In our opinion the allowance of interest is not open to objection.
From our examination of the whole case, we conclude 

 [*41]  that the 1st and 2nd prayers of the appellant, and the 6th of the appellees, were properly granted, and that there was no error in the rejection of the others.
Judgment affirmed. 

15 of 196 DOCUMENTS 

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

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

19 Md. 22; 1862 Md. LEXIS 52 

November 13, 1862, Decided 

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

This cause was on a former occasion before this Court. The proceedings and decision of the Court upon the first appeal, will be found reported in 11 Md. 198, &c. Subsequently to the remanding of the cause, additional claims were filed by the complainant, Banks, under a new commission, and further testimony taken, not only in reference to said additional claims, but also to those before this Court on the first appeal. Under the new commission, the complainant, Banks, as holder thereof, filed four additional promissory notes, drawn by Hannah K. Chase, and endorsed by William Chase Barney, marked D. B. B., Nos. 1, 2, 3 and 4, amounting to the sum of seven thousand dollars, dated on the 25th and 30th of July 1844, respectively, all of them payable two years after date; and proved by Joshua Cockey that the signatures thereto were in the handwriting of said Hannah K. Chase, and by Levi K. Bowen that the endorsements were in the handwriting of William Chase Barney; and also proved the handwriting of the signatures and endorsements to the notes filed under the original commission, prior to the first appeal. The complainants also proved [**2]  by George W. Earhart, that in the Spring of 1846, at the instance of William Chase Barney, he negotiated the said four notes with Daniel B. Banks, and that he recollected meeting with Hannah K. Chase about that time, and that she stated to him that the notes were good, that they were her notes, and that she had given them to her grand-son, William Chase Barney. The defendants excepted to the declarations of Mrs. Chase as inadmissible.

The complainants also filed, under the commission, the following exhibits: 1st. Exhibit A, being the record of proceedings in a suit at law in the Superior Court of Baltimore city, wherein Richard G. Berford is plaintiff, and Nathaniel Williams and Joseph B. Williams, exrs. of Hannah K. Chase, are defendants. 2nd. Exhibit B, the record of proceedings in a suit at law in the Superior Court of Baltimore city, wherein Daniel B. Banks is plaintiff, and the said executors are defendants; to the admissibility of both of which, as evidence, the defendants excepted.

The defendants then proved, by Mrs. Mary Barney, certain declarations of William Chase Barney, and also filed three letters written by him to said witness, who was his mother, tending to [**3]  show fraud on the part of the said William Chase Barney, in obtaining the said notes, and usury on the part of those by whom they were negotiated. To the admissibility of which declarations and letters, as evidence, the complainants excepted.

To claims D. B. B., No. 3 and No. 5, filed under the original commission, and claims D. B. B. Nos. 1, 2, 3 and 4, filed under the remanded commission, the defendants plead the statute of limitations, and also to the notes bearing date subsequent to the date of the deed of trust, and to the claims of Renwick, Mills and Elion, which were, on the former hearing, allowed by the Court of Appeals--the complainants objecting to the right of the defendants to file the plea of limitations to said claims. The defendants also excepted to all of the claims of the said Banks: 1st, "because the same and each of them were originated in usury, to which said Banks was a party;" and 2nd, "because the same were ante-dated, and were in fact, if executed by the said Hannah K. Chase, dated, as they purport to be, with the fraudulent purpose of avoiding the effect of the said deed of trust of the 2nd of August 1844, and were, in fact, signed and executed long subsequently [**4]  to the execution and recording of said deed, and this was well known to said Banks."

The complainant, Daniel B. Banks, being afterwards examined, in pursuance of a petition of the defendants, to certain interrogatories therewith filed, testified that he purchased the notes, filed since the cause was remanded, from Earhart, in the early part of 1846, and that he did not recollect what he paid for them, and had no memorandum showing the amount; that he was not aware, at the time of purchasing them, that William Chase Barney had received the notes without consideration from Mrs. Chase; that he had filed a list of all the notes held by him, which were signed by Hannah K. Chase, amounting to the sum of $ 2,250, and that he was unable to say what proportion the respective sums paid by him bore to the notes and property, but that, to the best of his belief, the sums paid were a great deal more than one-third of the value of said notes and property.

The 5th of the interrogatories propounded to the said Banks, is in the following words: "If you held or possessed the said notes, now produced by you, since the mandate of the Court of Appeals, why did you not produce or file them before [**5]  this cause was appealed on?" In reply, he testified that he did hold the said notes at the time of filing the bill of complaint, but did not then file them, because he was told by D. Stewart, his counsel, at that time, that it was unnecessary to do so, he, Stewart, having made an arrangement with N. Williams, a defendant in this cause, that they were to abide the decision of this case, and that he, Banks, was not aware it was necessary to file them, until so informed by his present counsel. The defendants excepted to the admissibility in evidence of so much of said answer as relates to the statement of D. Stewart, and also to the answers generally, "as being vague, evasive, incomplete and unsatisfactory."

The Court below, (KREBS, J.,) by its decree, overruled the defendants' exceptions and plea of limitations to the complainants' claims heretofore established by the Court of Appeals, and also the exceptions of the defendants to the claim D. B. B., No. 4, under the original commission, and to the claims D. B. B., No. 1, No. 2, No. 3 and No. 4, filed by Daniel B. Banks, under the remanded commission, in which were set up the defences of usury, ante-dating and limitations; and sustained [**6]  the defendants' exceptions to Banks' answers to interrogatory No. 5. The complainants' exceptions to so much of Mrs. Mary Barney's testimony as related to conversations between her and William Chase Barney, were also sustained by the decree, and the property covered by the deed of trust of Hannah K. Chase, was thereby directed to be sold, for the payment of the claims allowed. From this decree the defendants appealed.  

DISPOSITION:
Decree affirmed in part and reversed in part, and cause remanded.  

HEADNOTES:

In cases remanded under the Act of 1832, ch. 302, where the opinion of the Court of Appeals has been pronounced on the several questions involved in the first appeal, the decision of that Court, thus pronounced, is, by the terms of that Act, made conclusive as to the points finally decided, and no error can be imputed to the Court below, if its subsequent proceedings have been in conformity with that decision.

Where a claim has been allowed by the Court of Appeals, and the cause remanded for further proceedings, it is too late to plead to such claim, for the first time, the statute of limitations.

Where the defence of usury is set up to the claims of the complainants, the affirmative of this charge by the defendants rests upon them under the Act of 1845, ch. 352, and must be sustained by evidence, which can enable the Court to decide that less than the nominal amount of a promissory note has been paid for it, and how much less, so that under the 3rd sect. of the Act, the Court may ascertain the amount really due, and decree accordingly.

A complainant in a bill in equity alleges an indebtedness to him by one as maker or endorser of "certain promissory notes," describing one of the notes filed as an exhibit with the bill; and the respondents, in their answer, make defence against "any note or notes" of the party indebted -- HELD: that any promissory notes of such party, held by the complainant at the time the bill was filed, are embraced within its allegations, though filed as claims, for the first time, after the cause was remanded; and also, that the plea of limitations cannot be sustained as to such of said claims as were not barred by limitations when the bill was filed.  

COUNSEL:
Henry May, for the appellant:

The decree now under review, overrules our exceptions to such of the antecedent claims, as were established by this Court, in 11 Md. 228. The claims thus said to be established are:

1. Elion's judgment rendered against Mrs. Chase the 26th of March 1846. It is true, that this Court say in 11 Md. 236, that limitations cannot bar this claim, as Elion obtained judgment against Mrs. Chase on the 28th of March 1846, nearly two years after the deed of trust to the appellant; but surely this Court never meant to say, that such subsequent judgment by confession against the grantor, Mrs. Chase, could prevent her prior grantees of August the second, 1844, from [**7]  pleading limitations to the cause of action, as held by Elion at the date of this deed of trust. That cause of action was the note of Mrs. Chase to Elion, which matured on the 5th of January 1845, and her other note for $ 350, due the 7th of January 1845. No subsequent acknowledgment or confession of judgment by Mrs. Chase, could affect the right of her prior grantees to plead limitations against the cause of action, as it stood on the day of the assignment of all her property to the appellants. Owings & Piet, vs. Low, 5 G. & J., 145. These notes were filed for the first time before the commissioner, on the 17th of February 1851, some six years after their maturity. We excepted to these notes on two grounds, viz: limitations, and the payment of dividends on them by Talbott. They were both clearly barred when filed, and must be rejected on the objection of limitations, which runs to the filing of the claim in the creditor's suit. Hall's adm'r vs. Cresswell, 12 G. & J., 36. It was therefore an error to hold this claim, to be clear of the recorded objection of limitations, because of the subsequently confessed judgment by Mrs. Chase. 3 Md. 67 and 78. Id., 312. And the question now [**8]  is, whether such mistaken opinion of this Court is conclusive on the remanding of the case under the Act of 1832, ch. 302, sec. 6. The order remanding the cause requires it to be disposed of in conformity with the opinion filed by this Court. If, therefore, the claim of Elion is to be established, it is solely because of the conclusiveness of that order.

The second of the claims allowed is Mills' note, dated July 30th, 1844, filed less than three years after maturity. The third is Renwick's note, dated July the 30th, 1844. This last note was not originally objected to on the ground of limitations, and therefore was allowed by this Court in the then state of the record. But as the Act of 1832, ch. 302, sec. 6, allows further proceedings by amendment of pleadings or new evidence, we had a right to object to it on the ground of limitations, as we have done by our new exceptions. Doub vs. Thomas, 1 Md. 327 and 328. Strike's case, 1 Bl. Ch. Rep., 85. Welch vs. Stewart, 2 Bl. Ch. Rep., 42 and 43. It was only filed as a claim under his petition of the 20th of March 1850, more than three years after its maturity. This Court could not, as the record stood on the first appeal, decide [**9]  the applicability of limitations to Renwick's claim, and its decision then, is not binding now when the record brought up is materially different. Brown vs. Somerville, 8 Md. 444.

The fourth of said claims is the note held by Banks, dated July 30th, 1844, Ext. D. B. B., No. 1 or No. 5. This note fell due July the 30th, 1845, and is not barred by limitations, as it was filed with the bill of complaint on the 29th of July 1848. It was excepted to by us originally on the ground of usury, but this Court said there was no evidence of usury at that time. But since the remanding of the case, Banks has admitted that he advanced a great deal more than one-third on each and all of said notes, and this impliedly establishes usury to at least one-half of this note, on the same principle that Renwick was convicted of usury.

Banks had another antecedent claim, which was the note of Mrs. Chase, dated since the 30th of July 1844, payable one year after date, for $ 2000. This note was marked Exhibit No. 4, and was at the former hearing rejected for want of proof. No additional proof of the execution of this note has been taken, since the remanding of the case, yet it has been allowed [**10]  by the Court below.

We now come to the consideration of the four additional notes, marked D. B. B., Nos. 1 to 4, all dated just prior to the deed of trust, and filed by Banks, for the first time, on the 14th of July 1858, after the remanding of this cause, and all of which were allowed by the Court below. It will be seen by Banks' answer to the 5th interrogatory, that he held these new or additional notes when he filed the original bill in this cause. A plaintiff has no right to file new or additional claims, after he has allowed the case to be heard as to a portion of his claims, and it has been returned from the Court of Appeals for further proceedings, in relation to the claims then before the Court. 10 Wheat., 443. 3 Howd., 424, Ringgold vs. Emory, 1 Md. 349, &c. Welch vs. Stewart, 2 Bl. Ch. Rep., 39. Post vs. Mackall, 3 Bl. Ch. Rep., 509. But an additional reason for excluding these last claims from this record, is found in the fact, that Banks had, on the 3rd of July 1849, brought suit on them at common law, which suit was still standing at the time of the decree below. The suit at law was brought against Mrs. Chase's executors, while this bill in equity is filed against [**11]  her trustee in the deed of August the 2nd, 1844. Therefore we could not have met the filing of these new claims in this cause, so late as 1858, by calling on Banks to elect between his suit at law and in equity, on the same causes of action, to relieve ourselves from a double vexation, because the defendants were different parties. 2 Story Eq., sec. 889. If judgment had been recovered on them, against the executors, it would not have been admissible in evidence against the trustees of the real estate, although the individuals filling both offices might be the same. Strike's case, 1 Bl. Ch. Rep., 57. Gibson, et al., vs. McCormick, 10 G. & J., 109. Collinson vs. Owens, et al., 6 G. & J., 4. Cox, et al., vs. McCausland's adm'r, Id., 16. Gist's adm'r, vs. Cockey, et al., 7 H. & J., 134. Dent adm'r, vs. Dent, 3 Gill, 482.

A fortiori, these notes even if declared on in the suit at law against the executors, cannot be considered as filed in this equity case, until filed de facto, which was July the 14th, 1858, up to which time limitations ran against them as interposed by us. Hall's adm'r, vs. Cresswell, et al., 12 G. & J., 36. Welch vs. Stewart, 2 Bl. Ch. Rep., 37. Post vs. Mackall.  [**12]  3 Bl. Ch. Rep., 486.

The purchaser of over-due paper, takes it subject to all the equities between the original parties relating to the particular note, and the true test is, whether at the time of the transfer the payee could have maintained an action on the note. Sto. Prom. Notes, sec. 178. The same authority shows, that the purchaser of over-due paper takes it subject to all the equities between the original parties, whether he had notice of those equities or not. See, also, 5 Sandford, 157 and 163, Pringle vs. Phillips. In Annan vs. Houck, 4 Gill, 325, this Court recognized the rule that the endorsee of over-due paper "is chargeable with notice of all the circumstances under which the note was obtained by the payee from the maker." In the case of the Merchants Bank vs. The Farmers Bank of Va., which was twice before this Court, (but is to be found only in manuscript,) it was held, that the holder for full value of a check on the Virginia Bank, marked "good," by its cashier, when the drawer had no funds, could not recover on the check, because having received it a few months after date, it was subject to all equities as over-due paper. In Renwick vs. Williams, 2 Md. 363,  [**13]  this Court say, that accommodation notes constitute an exception to the rule, "and in such a case the want of consideration cannot be relied on, although the holder took it when over due." But in that very case it is said, on page 364, that the endorsee of over-due bills, takes them subject "to those equities, which are inherent in the note, and which would show it to have been void ab initio, such as fraud, mistake, &c." The new evidence taken since the remanding of the case fully establishes the fraud on the part of Barney, in obtaining Mrs. Chase's notes; for the exercise of undue influence is fraud. Watkins vs. Stockett, 6 H. & J., 442. Davis vs. Calvert, et al., 5 G. & J., 269. The declarations of Barney, made before he passed the over-due notes to Banks, Berford and Renwick, are admissible against them, as purchasers of over-due paper. A bona fide holder for value, without notice, can only recover the amount actually received. Sto. Prom. Notes, sec. 197, note. 9 Cranch, 153, Clark vs. Van Reimdysk.

St. Geo. W. Teackle and J. Malcolm, for the appellees:

The decision of the Court of Appeals in 11 Md. concludes the appellants as to the claims filed under the original [**14]  commission, and also as to the principles there established. The exceptions taken to the testimony of Mary Barney, and the accompanying exhibits, are well taken. In the former case, in 11 Md. this Court passed on the defences of undue influence, usury, antedating, fraud, &c., as to all claims filed under the original commission. See Act of 1785, ch. 72, sec. 21. The answers of Banks are binding on the complainants. 11 Md. 233. There being no proof at all of usury, and the ante-dating of said notes in this case, those objections must be overruled. The plea of limitations cannot prevail as to the claims allowed by the former decision of the Court of Appeals; for as to the said matters, the case has been adjudicated, and as to the claims filed by Banks since the remanding of this case, it is proven that he had them at the time of filing the bill of complaint, and the plea of limitations can only go, if at all, to the time of filing the bill, (and at that time they were not barred, the notes all being notes at two years after date, and therefore would not be barred until August 1849,) and the bill was filed on the 29th of July 1848. McDowell, et al., vs. Goldsmith, 6 Md. 319.  [**15]  Strike's case, 1 Bl. Ch. Rep., 85, note as to limitations. The Act of 1832, sec. 6, permits further proceedings and further amendments and evidence upon the merits. The plea of limitations is not a plea to the merits, and could not be put in under the mandate in this case. 1 Gill, 220, Nelson vs. Bond. After a party has taken his defence, in equity, he cannot set up the plea of limitations. There is, then, no plea of limitations to Renwick's or Elion's claim, and No. 4 is admitted to be proven by agreement filed. Banks is not a subsequent purchaser or creditor, and therefore the question of notice does not affect him. 11 Md. 242 and 243. The appellants' objection to Banks' answer to the 5th interrogatory, is not well taken, and cannot be maintained, because he is required to state why said notes, filed under the remanded commission, were not filed prior to the last appeal, and the answer is therefore pertinent and responsive to the interrogatory, and gives the reason for not filing said notes; and for the same reason the exhibits A and B, filed with the answers, are evidence as showing the facts stated in said answers to be true, and the answers to the said interrogatories are [**16]  conclusive upon the appellants, under the Act of 1785, ch. 72, sec. 27, unless there is testimony to overrule the answers.

Robert J. Brent, for the appellants, in reply:

The answer of Banks to the 5th interrogatory was excepted to by the appellants, and the exception sustained by the Court below, and there having been no appeal taken by the complainants, his answer cannot now be considered by this Court. But if it were otherwise, we submit that our interrogatory was intended to discover facts known to Banks, and that it did not seek a discovery of what others had told him of matters transpiring between them and Williams. See Clark vs. Van Reimdysk, 9 Cranch, 153. 2 Story's Eq., sec. 1529.

The second defence of the appellees' counsel, to our objections to the four new claims filed, rests upon the fact that Banks' bill, filed on the 29th of July 1848, represented that Mrs. Chase was largely indebted to Banks and Stewart, as maker and endorser of certain promissory notes, one of which he filed with his bill, marked D. B. B., No. 1, but which is exhibit No. 5. 11 Md. 228. And their idea is, that such an allegation incorporates all the notes Banks then held, and when [**17]  produced and proved at any time in the case, they became and were the causes of action incorporated in the bill, and, as such, were not barred by limitations at the date of its filing. And to support this proposition they rely upon the case of McDowell vs. Goldsmith, 6 Md. 337 and 338. In that case, this Court held, that the claim of the complainant, described generally in the bill, was properly proved under the commission, and though not actually filed until proved, (some five years after the filing of the bill,) it was sustained against limitations, though pleaded in the answer. But our case is a very different one. The complainant, Banks, after alleging a general indebtedness on the part of Mrs. Chase, files with his bill one note, and confines his claims in the cause up to the first hearing, to that note, and to another marked exhibit No. 4, and he submitted the case for final decree upon these two notes alone. We claim that this was a clear waiver by Banks of the right to file these four new notes in this equity case, and moreover shows, in connection with the suit in the Circuit Court, that he had already elected to prosecute his claim thereon at law. The subsequent change [**18]  of purpose, and filing them here, since the remanding of the cause, amounts to the filing of a new claim, not meant to be included in the general language of his bill, and therefore it is wholly unlike the case in 6 Md. 337, and these new claims are subject to our exceptions on the ground of limitations, when filed.

The Act of 1832, directs the case, when remanded to be proceeded in as if no appeal had been taken in the cause, and the decree appealed from had not been passed, and we contend that limitations may also be pleaded. Brown vs. Somerville, 8 Md. 444. Thomas vs. Doub, 1 Md. 327. 6 G. & J., 29, Chalmers vs. Chalmers. There is no chancery rule that requires the plea of limitations to be filed within any particular time. No case can be found to the effect that the plea of limitations in equity, when properly filed, is not a plea to the merits. Both Banks and Renwick, not being bona fide holders of this paper, are subject to all the equities of manifest ante-dating, as well as of undue influence practiced by the endorser on the maker of the notes. On an inquiry into frauds such as these, the declarations of Mrs. Chase and of Barney, though made subsequently to [**19]  the title of these appellees, are clearly admissible, because they are not bona fide holders. 6 Md. 338 and 344, McDowell, et al., vs. Goldsmith. 4 Gill, 331, Annan vs. Houck. In law, Banks is chargeable with constructive notice of the deed of trust recorded in 1844, and should not be heard to deny it. 6 Md. 235, Mayor & City Council of Baltimore vs. Williams. 11 Md. 250. 13 Md. 469, Cooke's Lessee vs. Kell, et al.

We suggest, in conclusion, that as the deed of trust is only void quoad certain creditors, and not in toto, the decree should allow us time to redeem our property by paying, as in cases of foreclosure of mortgage, the lien debt. Such course is far more equitable than the absolute sale decreed below.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*35]  BARTOL, J., delivered the opinion of this Court:
This case was before the Court of Appeals on a former occasion, and is reported in 11 Md. 199. It was then remanded under the Act of 1832, ch. 302, and in conformity with the requirements of that Act, the opinion of the Court was pronounced on the several questions involved in that appeal, and [**20]  presented by the record. By the terms of the Act, to which we have referred, the decision of the Court of Appeals thus pronounced, is made "conclusive" as to the points finally decided, and no error can be imputed to the Court below, if its subsequent proceedings have been in conformity with that decision. Thomas vs. Doub, 1 Md. 252, 325. Young vs. Frost, 1 Md. 377, 394.
This being the established law of the case, our first duty, in disposing of the present appeal, is to ascertain what has been already finally decided.
An examination of the former decision, has satisfied us that the following points have been conclusively settled:
1st. That the deed from Hannah K. Chase to Nathaniel Williams and Joseph B. Williams, dated the 2nd day of August 1844, to impeach which the bill was filed, was not fraudulent in fact, but was fraudulent in law, under the Statute of 13th of Elizabeth, as against bona fide creditors without notice, upon debts which existed antecedent to the date of the deed, and, as to such, it ought to be set aside.
2nd. That the following antecedent claims had been established, and were entitled to be paid from the property [**21]  conveyed by the deed, viz:

________________________________________________________________________________

H. C. Elion's note, dated 2nd July 1844, for	$ 350.00	
Mills'   "   "  30th  "   "   "	300.00	
Renwick's   "   "   "   "   "   "	1,306.12	
Banks' note, dated 30th July 1844, Exhibit	
  D. B. B., No. 1 or No. 5,	2,000.00	
________________________________________________________________________________

See 11 Md. 243.

 [*36]  The grounds upon which the Court proceeded in its decision upon these claims, are not now open for examination, and therefore we cannot entertain the inquiry whether there was error, in declaring the claim of Elion to be proved, as has been alleged by the appellant. This conclusion, in our opinion, results from the provisions of the Act of 1832, and is in accordance with the uniform course of decisions in this State. It is unnecessary for us to express any opinion upon the question, whether it was competent for the appellants, after the cause was remanded, to interpose new objections, and offer new proof to impeach the claims passed upon by the Court of Appeals; or to decide how far the decision before pronounced would be binding, if by further pleading and additional evidence, the claims were presented in a new and changed aspect; because [**22]  in the case before us, the claims of which we have spoken, stand now, as they stood on the former appeal, the proof not being in our opinion materially altered.
To the claim of Renwick, the plea of the statute of limitations has been made, for the first time, after the cause was remanded; but in any view of the question, that plea could not be considered, having been made too late. See 1 Bland 85, note c. 2 Id., 42, 43.
For the reasons stated, we think there was no error in the decree below, in allowing the several claims which we have before enumerated.
We now proceed to notice those parts of the decree of the Circuit Court, by which other and additional claims of the complainant, Banks, have been allowed. These consist of four notes, marked respectively "D. B. B., Nos. 1, 2, 3, 4," filed since the cause was remanded; and one note marked "Exhibit No. 4," which had before been filed, but was disallowed by this Court on the former appeal, the same not then being proved. (11 Md. 229.)
To the four notes first named, the appellants have interposed several objections:

 [*37]  1st. That they were ante-dated.
2nd. That they were obtained [**23]  fraudulently by the complainant, Banks.
3rd. That they were obtained by him usuriously.
4th. That they are barred by the statute of limitations.
With reference to the first two of these objections, it is sufficient to say, that, in our opinion, they are not sustained by the proof in the cause. At the former trial in this Court, the same objections were made to the several claims then passed upon by the Court of Appeals, and it was ruled, after a full examination of the testimony, that there was not sufficient proof to establish the alleged ante-dating; (11 Md. 232;) or to show any knowledge or participation by the endorsees, in any "fraud or imposition or undue influence," alleged to have been practiced upon Mrs. Chase by William Chase Barney, in obtaining the notes; (11 Md. 237, 238.) On these questions the proof before us is not materially altered from what it was on the former appeal, and we concur in the opinion then announced, on the effect of the evidence. In deciding upon these two objections, we have excluded from our consideration that part of the testimony of Mrs. Mary Barney which relates to conversations between herself and William Chase [**24]  Barney, and have also excluded the letters of William Chase Barney, filed with Mrs. Mary Barney's testimony, under the remanded commission. The exceptions thereto by the appellees, being in our opinion well taken.
3. On the former appeal the appellants relied on the plea of usury, to the claim of Banks on the note marked ("Exhibit 1 or 5,") and the Court said, (11 Md. 235, 236,) "that the affirmative of this charge, by the defendants, rests upon them, under the Act of 1845, and they have not sustained it by evidence, which can enable the Court to decide that less than the nominal amount of the 

 [*38]  note was paid for it, and how much less, so that under the 3rd section of the Act, the Court may ascertain the amount really due, and decree accordingly."
These observations are equally applicable to the defence of usury now urged by the appellants, to the four notes of Banks, of which we are speaking. The onus imposed on the appellants, by the Act of 1835, ch. 352, still rests upon them. See Bandel vs. Isaac, 13 Md. 202.
And we are compelled to say that the evidence relied on by the appellants, does not gratify the requirements of the [**25]  law. For although the inference from the answer of Banks to the 3rd interrogatory may fairly be drawn, that he obtained these notes for less than their nominal amount, yet there is nothing from which the Court can ascertain how much less was paid by him, and the onus of showing the amount really due was on the appellants.
Under these circumstances, we are of the opinion, that the objection of the appellants on the ground of usury has not been sustained.
4th. In disposing of the objection on the ground of limitations, it is necessary for us to recur to the pleadings in the cause.
The bill is in its nature a creditor's bill, filed originally by Banks and Stewart, and alleges "that Hannah Kitty Chase, was in her lifetime largely indebted unto your orators, Daniel B. Banks and John Stewart, as maker and endorser of certain promissory notes," and then proceeds to name and describe one of those notes, which is exhibited with the bill, marked "Exhibit D. B. B., No. 1." The respondents, Nathaniel and Joseph B. Williams, in their answer, make defence against "any note or notes of hers," held by the complainants or either of them.
By our construction of the allegations [**26]  in the bill, and the answers, any promissory notes which were held by Banks at the time the bill was filed, are embraced within 

 [*39]  its allegations. The proof in the cause shows that the four notes filed by Banks under the remanded commission, were all held by him at the time the bill was filed; and as none of them were then barred by limitations, this objection must be overruled, and in our opinion, the decree below ought to be affirmed so far as it allows those four claims.
We now pass to the consideration of the claim filed under the first commission, marked (Exhibit No. 4.) On the former appeal it was decided that this claim was without proof to sustain it, and it again comes before us for examination, upon the new and additional proof since offered. We have carefully considered that proof, and are of opinion that it has not been established. A brief reference to the testimony, on which the appellee relies, will show that this claim has been erroneously allowed in the decree below. The witness, Cockey, does not prove it, he speaks only of the four promissory notes, "D. B. B., Nos. 1, 2, 3, 4," filed for the first time under the remanded commission. The witness, Bowen, in [**27]  his first examination, speaks only of the same four notes, and in his second examination testifies only with regard to "Complainants' Exhibit No. 3, and Complainants' Exhibit No. 5," filed under the first commission.
Banks' answer to the third interrogatory, setting out a list of the notes held by him at the time of filing his bill, refers to this note, but does not establish it as genuine; nor does exhibit No. 5, filed under the remanded commission, and the proof of the same being in William Chase Barney's handwriting, furnish any evidence of the genuineness of the note to which the assignment refers. In our opinion, the objections of the appellants to the admissibility in evidence of the transcript of proceedings in the Superior Court, in the case of "Berford vs. Nathaniel Williams and Joseph B. Williams, executors of Hannah 

 [*40]  K. Chase," was well taken, and ought to be sustained. And we think there was error in the decree below, in allowing this claim, "Exhibit No. 4,"--and the decree in that respect ought to be reversed.
We concur in the ruling of the Circuit Court, upon the exceptions of the appellants, to the admissibility in evidence of that part of Banks' answer to [**28]  the 5th interrogatory, in which he speaks of the declarations made to him by his counsel, David Stewart, as to any agreement made with Williams. A decree will be signed in conformity with the foregoing opinion, affirming the decree below in part, and reversing it in part; and remanding the cause in order that this decree and the decree of the Circuit Court, so far as the same is affirmed, may be executed, and to afford the complainant, Banks, an opportunity of giving further proof of "Claim No. 4."
Decree affirmed in part and reversed in part, and cause remanded. 

16 of 196 DOCUMENTS 

JOHN H. B. LATROBE, Trustee, vs. THE MAYOR & CITY COUNCIL OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

19 Md. 13; 1862 Md. LEXIS 51 

October 27, 1862, Decided 

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

This was an action by the appellee against the appellant, docketed by consent the 7th of October 1859, its object being the recovery of taxes due upon certain securities belonging to the estate of the late Joseph Thornburgh, deceased. The case was submitted to the Court below on a written agreement as to the facts, all of which are substantially stated in the opinion of this Court. The concluding paragraph of said agreement is as follows: "It is agreed that if the Court shall be of opinion, on the foregoing statement of facts, that the personal property of the late Joseph Thornburgh is liable to taxation where the trustee resides, there shall be a verdict for the defendant; but if they shall believe that the tax is to be levied in Baltimore, where the cestui que trusts reside, then there shall be a judgment for the plaintiff for $ 5,000, interests and costs." Judgment pro forma for the plaintiff was entered the same day upon which the suit was docketed, and the defendant appealed.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

In an action for the recovery of taxes upon mortgages of real estate lying in the city of Baltimore, assessed to the trustee of said property, residing, at the time of the assessment, and of the institution of the suit, in Howard county, the cestui que trusts residing, at the same time, in said city -- HELD:

1st. That taxes assessed upon a trust estate, constitute a legal cause of action against the holder of the legal estate; for, at law, the legal estate in the hands of the trustee, has the legal incidents and obligations of an absolute title, subject only to the claims in equity of the cestui que trust.

2nd. That in this case the appellant was the holder of the legal estate, upon the valuation of which the taxes sought to be recovered were imposed, and upon the construction given to the 13th Art. of the Bill of Rights, as well as upon the general rule above stated, he was the proper person to be assessed for their payment; and the assessment of the tax to the holder of the legal estate, through him, reaches and fastens upon the interest of the beneficial owner.

3rd. That a like construction should be given to the Acts of 1841, ch. 23, 1847, ch. 266, and 1852, ch. 337, requiring "all property owned by persons residents of the State, and not permanently located elsewhere within the State, to be valued to the owner in the county, district or city wherein he or she may reside."

Upon the principle that the possession of personalty follows the person owning the legal title, the mortgages on the valuation of which the assessment of the taxes in this case was made, so far as they could be made the basis of an assessment, were beyond the jurisdiction of the appellee.

The recording of a mortgage in another county or district than that of the creditor's residence, cannot have the effect of locating the debt where the mortgage is recorded. 

COUNSEL:
John H. B. Latrobe, for the appellant:

The 13th Article of the Bill of Rights declares, that every person holding property [**2]  in the State "ought to contribute his proportion of public taxes, for the support of government, according to his actual worth in real or personal property." Now the person holding the property, in this instance, is unquestionably the trustee, for "holding" is a technical term, and expresses clearly just such an interest as the trustee has in the premises. He holds the property for the benefit of the cestui que trusts, and it is his residence which must govern in fixing the rate of taxation.

In this case, the action has been brought in a Court of Law, to enforce a claim at law under an Act of Assembly, based on the 13th Article of the Bill of Rights. Let us see how the law regards the trustee and his cestui que trust, in their relations to the property now to be brought within the scope of either city or county taxation. At law, the cestui que trust is ignored altogether; a Court of Law recognizing only the legal owner of the estate. Crabb on the Law of Real Property, 1844, 55 Law Lib., 399. 97 Law Lib., 257. At common law, the legal estate in the hands of trustees has the same incidents as if the trustees were the usufructuary owner, subject, nevertheless, to the claims in equity [**3]  of the cestui que trust. Ibid., 1837. In Rivet's case, Moore, 890, it was assumed, apparently, as undisputed law, that the manorial burdens fell on the trustee, personally. The question here arose in connection with a copyhold estate. 97 Law Lib., 266. So, at common law, the right of voting for coroners, sheriffs and members of Parliament, was vested in the trustee, and thus continued until the right was taken away by the Statute of 58 Geo. III. Ibid., 1902. Lewin, 99 Law Lib., 269. Now, if the legal estate of the trustee gave him the right to vote, which, as it was purely a personal matter, could only be exercised where he was domiciled, why should not the estate be taxed according to the same domicil, unless there was a difference between real and personal estate in this particular, which we shall shew there was not. So absolutely, indeed, was the cestui que trust ignored at common law, that, before the Statute of Henry VIII, (of uses,) although there was a privity between the feoffee to uses and the cestui que use, yet to all other persons the feoffee was as much the real owner of the fee as if he did not hold it to the use of another. Even his wife was entitled to dower. See Butler's [**4]  note, 2 Co. Litt., 271--b. The feoffee being, then, as regards strangers, including the parties exercising the taxing power, the absolute owner of the estate, it is his residence, necessarily, that must determine the jurisdiction.

Had the present question arisen before the Statute of Henry VIII, the Court, then, would have had no hesitation in making the estate liable to taxation where the trustee resides. But the statute which changed the common law, does not affect cases where duties are imposed on the trustee, which makes it necessary for him to have the possession of real estate, to receive and pay over the rents and profits, &c. Willis on Trustees, 21. Law Lib., Vol. X, and cases cited. The statute of uses affected real estate only, and the estate here is personal. Does this make any difference? There is no reason why it should. The analogies of the law of real property furnish the data for decisions in regard to personal property wherever applicable. Here, all the reasons applicable to the one, are applicable to the other. It was the owner of the land, made so publicly by the feoffment, that the landlord looked to for his feudal dues. The law was for the benefit of the feudal [**5]  lord; and there was no more reason why he should hunt up the owner of personal property than of real estate. It was the visible and the tangible that he sought; and he claimed his feudal rights as well with regard to the cattle in the field, as to the field itself, where the reputed owner of both was the same person, though both field and flock may have been held in trust for a third party. For authorities to show that there was no difference between real and personal property in this connection, see Willis on Trustees, 72, note c, 10 Law Lib., and authorities there cited. Lewin, 97 Law Lib., 257. Where terms of years or other chattels, real or personal, are the subjects of trust, the trustee has the complete legal ownership. Ibid., 83, and authorities cited. So much so, that no notice is taken of trusts of stock, but the trustee is considered the absolute owner. Ibid., 83, note w.

Arguing, then, from analogy, and adopting the principles here explained, it would seem that we can come to but one conclusion, which is, that the domicil of the trustee must govern, in the exercise of the taxing power, on personal property. No case in this country has been found in the books, but it [**6]  seems to have been decided in England, that trustees are liable to be rated for the property vested in them, unless they are trustees exclusively for public purposes, without any profit to themselves or a particular class. Lewin on Trusts, 99 Law Lib., 265, citing Queen vs. Sterry, 4 Eng. C. L. Rep., 32; 12 Adolph. & Ellis, 84. The case before the Court falls within this ruling exactly. It is the case of a private trust, with which the public has nothing to do.

If the cestui que trust is to be regarded as the person "holding the property" to be taxed, under the 13th Art. of the Bill of Rights, the State ought to have an available remedy against him after the tax has been assessed, if it remains unpaid; otherwise, there would be a right without a remedy. And yet, what remedy could there be, except circuitously, against the cestui que trust, whose whole estate is in the income which the trustee pays him? In the present case, an action has been brought against the trustee, and in the event of a judgment against him, execution may issue, and the amount be collected; but, were the action against the cestui que trusts, and a recovery had, no execution against them would be available,  [**7]  and the judgment would have to be made the foundation of proceedings against the income payable by the trustee--and this, too, in another county, and before a different tribunal.

Again, were the cestui que trusts to remove beyond the State of Maryland, what alternative would there be, but to adopt the rule contended for, and make the domicil of the trustee the criterion or standard of the rate of taxation? Any other rule of taxation than this, would, in truth, be no rule at all; because that cannot be called a rule which is uncertain in its results, and may be impossible of application. All these difficulties are obviated by applying to the facts here, the principles that have had their origin in the common law, have been of daily recognition from the earliest times, and which, regarding the trustee, in a case like the present, as the absolute owner of the property, in the eye of a Court of Law, will, if correctly applied, make his residence the guide in determining the rate of tax to be collected from the personal property in his possession.

John L. Thomas, for the appellee:

The trustee in the will was only clothed with certain powers, to be executed by him for the [**8]  purposes therein mentioned, and was not vested with the legal estate; but the legal estate vested in the cestui que trusts. Fay vs. Fay, 1 Cushing, 94. Kuhn vs. Newman, 13 Legal Intelligencer, 260. Moore vs. Schultz, 13 Penn., 98. McNish vs. Guerarde, 4 Strob. Eq., 66. Ramsay vs. Marsh, 2 McCord, 252. Jackson vs. Schauber, 7 Cowen, 187. Perkins vs. Moore, 16 Ala., 9. 4 Kent's Com., sec. 321, and secs. 294, 296. Marshall vs. Fisk, 6 Mass., 31. If the trustee was vested with more than the exercise of a power under the will, he could not, under any circumstances, be any more than the dry legal trustee, appointed by a third party, and acting in his behalf, and for the benefit of the real, substantial, beneficial usufructuary under the will, the cestui que trust. 4 Kent's Com., secs. 316 and 317, also sec. 296. The cestui que trusts who reside in Baltimore city, are, to all intents and purposes, the owners of the estate to be taxed under the will. The interest which they hold is the same as though there were no trustee. 4 Kent's Com., sec. 302 to sec. 305. "All property owned by persons residents of this State, and not permanently located elsewhere within this State, shall be valued to [**9]  the owner in the county, district or city wherein he or she may reside." 1841, ch. 23, sec. 9.

The words of a statute are to be taken in their ordinary and familiar sense, signification, and import, and regard is to be had to their general and popular use. Dwar. on Stat., sec. 702. The word owner, means the rightful possessor, as contradistinguished from any other party who may have or hold the property, but for the benefit of some other. Vide Webster's Dict. Bouv. Law Dict., vol. 2, letter o.

The Acts in relation to tax and assessment, must be construed together, in pari materia, and the real intention of the law-makers must prevail. Dwar. on Stat., secs. 690, 700 and 703. It was undoubtedly the intention of the Legislature to assess the tax to the beneficial owner of the property. 1841, ch. 23, sec. 9. 1852, ch. 337, secs. 9 to 12. 1847, ch. 266, secs. 10 to 13. Md. Code, vol. 1, title "Revenue and Tax." If the trustee pay the tax upon the trust property, he does so in his fiduciary capacity, as and for the cestui que trusts.

A statute made pro bono publico, shall be construed in such manner that it may, as far as possible, attain the end proposed. Dwarris, secs. 722,  [**10]  723. Taxes are levied upon the people for the support of the government, be that either State or municipal, and the power of taxation extends to all the people of a government, and embraces every thing which may be fairly considered as a part of the mass of property in the State. Howell vs. The State, 3 Gill, 14. If the meaning and reason of the law were as contended for by the appellant, a large proportion of the assessable property of Baltimore would be taken away from her, and it would be in the power of a trustee to make constant changes of residence, and to carry along with him his trust estate, and finally to settle in that county or city where the taxes were the lowest, whilst the cestui que trusts could live in a large commercial city, enjoy its advantages, and partake of its privileges, and refuse to bear their just proportion of the public tax, for the support of the government under which they live, and by whose laws they are protected.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
COCHRAN 

OPINION:

 [*20]  COCHRAN, J., delivered the opinion of this Court:
This is an appeal from a judgment obtained in a suit at law, brought to recover taxes assessed [**11]  on mortgages of property in the city of Baltimore, made to the appellant as trustee of the estate of Joseph Thornburg, deceased. At the time of the assessment and institution of the suit, the appellant was a resident of Howard county, the cestui que trusts being, at the same time, residents of Baltimore city, and the question as to the liability of the appellant for the taxes assessed, is the only one presented.
We are not aware that the Acts of Assembly, regulating the imposition and collection of taxes, have effected any modification of the rules of law, which otherwise must govern the determination of this question. The appellee, in resorting to its remedy at law, assumes that the taxes assessed constitute a legal cause of action, and that the appellant, as the holder of the legal title of the property 

 [*21]  upon which the assessment was made, is liable for its satisfaction. That taxes assessed upon a trust estate, constitute a legal cause of action against the holder of the legal title, we do not doubt, for at law the legal estate in the hands of a trustee, has the legal incidents and obligations of an absolute title, subject only to the claims in equity of the cestui  [**12]   que trust. Crabb on Real Property, 55 Law Lib. 399; 97 Law Lib. 257. Willis on Trustees, 10 Law Lib. 21 72, 83.  Denton vs. Denton, 17 Md. 403.
In this case, the appellant was the holder of the legal estate, upon the valuation of which the taxes sought to be recovered were imposed, and upon our construction of the 13th Art. of the Bill of Rights, as well as upon the general rule stated, he was the proper person to be assessed for their payment. The declaration in that Art. of the duty or obligation of every person holding property in the State to contribute his proportion of public taxes, according to his actual worth in real or personal property, must be understood as intending and meaning a legal obligation to contribute to the public taxes, according to actual worth, and in that sense, the obligation for the payment of taxes falls upon the trustee or holder of the naked legal title. Upon this construction, the obligation of one entitled to the beneficial interest of property held by a trustee, to contribute to the public taxes, according to actual worth, is none the less satisfied, for in such a case the assessment of the tax to the holder [**13]  of the legal estate, through him, reaches and fastens upon the interest of the beneficial owner. In our opinion, a like construction should be given to the provisions of the Acts of 1841, ch. 23, 1847, ch. 246, and 1852, ch. 327, requiring all property owned by persons residents of this State, and not permanently located elsewhere within the State, to be valued to the owner in the county, district or city wherein he or she may reside, or, in other words, that these provisions contemplate and 

 [*22]  mean the holding or ownership of the legal estate of the property to be valued, without regard to the ownership of the equitable title or use. Adopting this view, we have then to ascertain the location of the property for which the taxes claimed were assessed, in order to dispose of the question presented. Upon the principle that the possession of personalty follows the person owning the legal title, the mortgages, on the valuation of which the assessment of the taxes in this case was made, so far as they could be made the basis of an assessment, were beyond the jurisdiction of the appellee. The assessment, in such cases, is made upon the amount of the mortgage debt, and not upon the [**14]  value of the property mortgaged to secure it. As the basis of the assessment is the amount of the debtor's obligation to the creditor, the recording of a mortgage in another county or district than that of the creditor's residence, collaterally securing its satisfaction, cannot have the effect of locating the debt where the mortgage is recorded.
We think the taxes, sought to be recovered in this case, were assessed without authority, and therefore reverse the judgment.
Judgment reversed. 

17 of 196 DOCUMENTS 

GEORGE W. COOK, vs. HENRY CARR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

19 Md. 1; 1862 Md. LEXIS 49 

October 8, 1862, Decided 

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

George W. Cook filed his petition in the Orphans Court of Baltimore city, on the 19th of April 1862, praying that letters of administration should be granted to him, on the personal estate of Sarah Ann Wigart, deceased, the grandmother of the petitioner. To this petition an answer, in the nature of a cross-petition, was filed on the same day by Virginia Carr, a grand-daughter of said deceased, and her husband, Henry Carr, objecting to the granting of letters to the said Cook, because "that by far the larger part of the estate of the said Sarah Ann Wigart, consists of a debt due by the said George W. Cook to the said deceased, which debt the said Cook denies," and praying that letters should be granted to them.

On the 24th of April 1862, an order was passed by said Court, in which it is said: "It being represented that George W. Cook, the party making the first claim, is largely indebted to the estate, whereby, in the Court's opinion, he is disqualified for the proper discharge of the functions of administrator, it is ordered that letters of administration be granted to Henry Carr, the party recommended by the other distributees [**2]  of said deceased's estate." From this order the petitioner, Cook, appealed.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

By the testamentary law of Maryland, as contained in Art. 93, sec. 23, of the Code, the right of administration vests in the grand-son of an intestate, in preference to the grand-daughter, notwithstanding he may be indebted to the estate of the intestate; and the Orphans Court has neither jurisdiction nor power to deprive him of such right.  

COUNSEL:
Benjamin C. Barroll, for the appellant:

Under the testamentary law, as contained in Art. 93, of the Code, it was the absolute right of the appellant to be appointed the administrator of the estate of his grandmother. Code, sec. 19, page 621, and sec. 38, page 624. And even if he had been a debtor to the estate, which he denied, that fact did not take away his right, and disqualify him from acting, the Orphans Court being expressly authorized to hear and determine that question, or any one interested being authorized to bring a suit in Chancery and try the question. Code, title "Test Law," sub-title "Orphans Court," sec. 231, page 669. Scrivner vs. Scrivner, 1 H. & J., 743. The Orphans Court, being a Court of special jurisdiction, has no discretion, under the law, to grant administration to whomsoever it pleases. The Code is peremptory, and its requirements must be obeyed. The right of the grand-son to the administration could not be taken away at the discretion of the Orphans Court. Code, Art. 93, secs. 31 and 33. 1 H. & G., 484. 6 G. & J., 349. 8 Gill, 286. 8 [**3]  G. & J., 79. 8 Md. 548. All the Maryland authorities speak of the matter of administration as a matter of right in the party; a vested right, coupled with an interest.

George W. Dobbin, for the appellee:

It is the policy of the law of Maryland to confide the administration of estates to those who, by reason of their relationship to the decedent, have the greatest interest in collecting, preserving and distributing them. Hence certain rules of preference are prescribed by the testamentary Code, based upon proximity of blood, and are intended, through that general principle, to work out the result above mentioned. These rules, however, have never been considered so arbitrary and imperative in practice as to demand the sacrifice of the obvious interest of the estate to their observance. In the administration of that branch of the law confided to them, the Orphans Courts of the State have necessarily conferred upon them very large discretionary power, to be exercised for the protection of the interests of creditors, legatees and distributees. Without them, it would be in vain that the law empowers them to superintend the distribution of the estates of intestates, secure the [**4]  rights of "orphans and legatees, and to administer justice in all matters relative to the affairs of deceased persons." Code, Art. 93, sec. 230.  

JUDGES:
The cause was argued before BOWIE, C. J., and BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
COCHRAN 

OPINION:

 [*3]  COCHRAN, J., delivered the opinion of this Court:
This appeal was taken by George W. Cook, from an order of the Orphans Court for Baltimore city, refusing to him, and granting to Henry Carr, letters of administration on the estate of Sarah Ann Wigart, deceased. The appellant and Virginia Carr, the wife of the appellee, stand in equal degree of relationship to the decedent, both being grand-children, and the question as to the right of the appellant to be appointed administrator, is the only one presented.
The determination of this question depends upon the construction to be placed upon the provisions of our testamentary laws, by which the right of administration is fixed and regulated. It was not contended that the alleged indebtedness of the appellant to the decedent's estate, prevented 

 [*4]  the right of administration from vesting in him, but that it constituted a ground upon which the Orphans Court was authorized to [**5]  exercise a discretion, as to which of the petitioners letters of administration should be granted. In our opinion, this view of the case is erroneous. It is true, that in a case where two or more persons are equally entitled to letters of administration, the Court may, in its discretion, determine to which of them the letters shall go, but its power, in that respect, results from its obligation to grant letters of administration to some one of the persons thus entitled, and not from the circumstances by which its choice may be determined. Although the Court, in such a case, may grant letters of administration to any one of a class of persons preferred by law, it has no power to discriminate against a person or class so preferred, by granting the letters to one standing in a more remote degree of right. In cases within the verge of the Court's discretion, the argument of the appellee, founded on the policy recognized by the testamentary Code, of confiding the administration of estates to those who, by relationship to the decedent, are presumed to have the largest interest in the distribution, would be irresistible, but it cannot have the effect of enlarging that discretion beyond the [**6]  limits fixed by the law conferring it. In this case, the appellant and Virginia Carr, although related to the decedent in equal degree, do not stand equal in right to the administration of her estate. The 23rd sec. of Art. 93 of the Code, declares a preference of the male relative for administration over the female of the same degree of relationship, which the Orphans Court should have observed. Under that provision of the testamentary laws, the right of administration vested in the appellant, notwithstanding his indebtedness to the estate of the decedent, and the Orphans Court had neither jurisdiction nor power to deprive him of it by the order passed.

 [*5]  With this view of the question presented, we shall reverse the order of the Court below, and remand the case, so that letters of administration may be granted in accordance with this opinion.
Order reversed and cause remanded. 

18 of 196 DOCUMENTS 

AUGUSTUS M. PRICE, Garn. of WILSON, vs. CHARLES D. DE FORD, and WILLIAM Y. DE FORD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 489; 1862 Md. LEXIS 40 

July 9, 1862, Decided 

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

Attachment, issued November 12th, 1857, on a judgment obtained by the appellees against Jos. C. Wilson, and laid in the hands of Price, as trustee of Wilson and Robt. W. Hyman. The garnishee pleaded nulla bona, and it was agreed that the object of the case was to test the validity of a deed of trust from Wilson and Hyman to Price, dated April 7th, 1857.

This deed recites, that the grantors had been partners, under the firm of J. C. Wilson & Co., and as such, were indebted to various parties in amounts, which they are at present unable to pay, and are desirous to convey their property for the payment of said debts, and then conveys to the trustee, all the estate, property, debts, &c., belonging to the grantors as partners under the firm of J. C. Wilson & Co., also all the estate, property, debts, &c., belonging to the late firm of Wilson, Young & Co., and belonging to the late firm of J. C. Wilson & Co., which was dissolved July 1st, 1854, in trust to sell, "as soon as conveniently may be, so much thereof as may be saleable, for the best price that can be reasonably had for the same, and collect so much thereof as is not saleable,  [**2]  but outstanding and collectable, and from the proceeds of such sales and collections," to pay first, costs, charges, commissions, &c., and out of the residue, to pay in full, if sufficient, if not, pari passu, "all the debts, claims and demands, set out and enumerated," in schedule A, annexed to the deed, and then out of the balance, to pay in the same way the debts, &c., set out in schedule B, and then to pay the balance so far as it will go or may be necessary for the purpose, to all the other creditors of the grantors, as partners under the firm of J. C. Wilson & Co., with power to the trustee "to compound for any doubtful debts;" "and it is hereby agreed between the parties hereto, that all the notes mentioned in schedule C, annexed to the deed, were drawn by the makers for the accommodation of J. C. Wilson & Co., and used for their benefit, without value to the makers, all of which with other collaterals have been deposited with the parties named in said schedule C, and on payment of the indebtedness for which said notes are severally deposited as collaterals, said notes shall be returned to the several makers thereof, each to receive his note without any claim being made thereon [**3]  or therefor by the trustee."

Two exceptions were taken by the garnishee to the rulings of the court below (LEE, J.) which are sufficiently stated in the opinion of this court, and from the judgment of condemnation he appealed.  

DISPOSITION:
Judgment reversed, with leave to take out a procedendo.  

HEADNOTES:

The fact, that a deed of trust for the benefit of creditors, conveys the assets of several previous firms, of which the grantors had been members, and makes no provision for the creditor of such firms, but only for the creditors of the last firm, does not avoid the deed.

Such an objection does not arise upon the face of the deed, and if made at all, could only be upon evidence dehors the deed, showing the existence of creditors of the antecedent firms, and that the assets of such firms were liable for their claims.

Power given to a trustee in a deed of trust for the benefit of creditors, "to compound for any doubtful debts" due the trust estate, is no objection to the deed.

A clause in such a deed, declaring that certain notes pledged by the grantors were made for their accommodation, and directing their return to the several makers, upon payment of the indebtedness for which they were pledged, does not justify the inference of fraud.

A deed for the benefit of particular creditors, not exacting releases, and not professing upon its face to convey all the grantor's property, is valid.  

COUNSEL:
John P. Poe and Wm. F. Frick, for the appellant:

1st. The deed does not exact releases. It is a deed from co-partners, conveying all their co-partnership property and effects for the payment of all their co-partnership creditors. The fact that it also conveys the assets of antecedent firms, and makes no provision for the creditors of these firms, is an objection which does not arise upon the face of the deed, and which cannot be urged in this case. If the deed could be assailed at all on this ground, it must be by showing by evidence outside of the deed, that such creditors exist, and that their rights have been affected thereby. In the case of Meannel vs. Murdock, 13 Md. 177, a similar conveyance of the assets of several firms was held not to avoid the deed. See, also, 11 Md. 563, Sanderson vs. Stockdale.

2nd. The power to compound doubtful debts due the trust estate, does [**4]  not vitiate the deed. A similar provision was contained in the deed in the case of McCall vs. Hinkley, 4 Gill 128, and no objection was urged to it on that ground. In the case of Meannel vs. Murdock, 13 Md. 164, where the deed exacted releases, this very question was raised, and yet the deed was held valid:--that case must be decisive of this. See, also, 13 Md. 404, Fouke vs. Fleming. 13 Md. 544, Berry vs. Matthews. 15 Md. 63, Farquharson vs. Eichelberger. 9 Barb., 258, Woodburn vs. Mosher. 15 Barb., 618, Brigham vs. Tillinghast.

3rd. The objection to the clause in regard to the notes, cannot avail. It merely assumes that these notes were not the property of the firm, and do not pass under the deed, and as this deed does not exact releases, it need not convey all the property of the grantors. The only ground on which this can be an objection to the deed is, by showing the declaration, as to these notes, to be false. It is a statement which, if false, makes the deed fraudulent in fact, and its falsity must be shown by evidence dehors the deed.

Geo. H. Williams and I. N. Steele, for the appellees:

1st. The deed conveys all the effects and property of [**5]  three firms to pay the debts of one firm, and makes no provision for the payment of the debts of the two other firms, or of the individual grantors. This is an objectionable feature in the deed, and renders it void.

2nd. The deed gives the trustee power to compound debts. This objection is an open question in this State:--it has not been decided in any of the other cases. In 4 Paige, 41, Wakeman vs. Grover, the chancellor decided such a clause to be objectionable, and condemned the deed on this and other grounds, and in the same case, on appeal, in 11 Wend., 203, the same decision was made. And these were cases of compounding with creditors, a feature much less objectionable than the power to compound debts. 3 Scammon, 583, Hudson vs. Maze, refers to the New York cases, and adopts their views. See, also, 29 Barb., 546, Jessup vs. Hulse, 16 New York, 566, Dow vs. Platner.

3rd. It is stipulated and agreed in the deed, that certain notes held or pledged by the grantors were made for their accommodation, and should be returned to the makers; so that the creditors cannot take under the deed without being bound by this agreement, whether it is founded in truth or falsehood. Such [**6]  a provision is an onerous and unreasonable condition, and may operate as a fraudulent reservation to the grantor, and avoids the deed. 7 Md. 380, Exchange Bank vs. Inloes. 7 Md. 268, Lanahan vs. Latrobe.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
COCHRAN 

OPINION:

 [*493]  COCHRAN, J., delivered the opinion of this court.
This appeal was taken from a judgment of condemnation upon an attachment issued on a judgment, obtained by the appellees against Joseph C. Wilson, and laid in the hands of Augustus M. Price, to whom Wilson and one Robert W. Hyman had executed a deed of certain property belonging to them, as co-partners, in trust for the benefit of their creditors.
Before the trial below, the parties entered into an agreement that the case should be tried for the purpose of testing the validity of the deed of trust, and admitting the respective amounts of the appellees' claim, and of assets in the hands of the garnishee.
The record presents two exceptions, the first of which was taken to the rejection of a part of the evidence of B. M. Heighe, offered on behalf of the appellant; and the second, to the instruction granted upon the appellees' prayer [**7]  declaring the deed, as against them, invalid and void.
The agreement filed in the case renders the consideration of 

 [*494]  the question raised on the first exception unnecessary. The effect of the evidence rejected would have been to show, from the knowledge of the witness, and from declarations made to him by both Wilson and Hyman, their relative interests in the property and assets in the hands of the garnishee, and the particular sources from which they were derived. In no aspect of the case, had the evidence been admitted, could it affect the appellees, as by the agreement, their rights must be determined by the character of the deed.
The objections urged by the appellees, in support of the instruction against the validity of the deed, were, 1st, because the property and effects of three firms were assigned by it, in trust for the benefit of the creditors of one firm, without any provision for the payment of the debts of the other two; 2nd, because it contains a power to the trustee to compound doubtful debts due to the trust estate; and 3rd, because it declares that certain notes, pledged by the grantors, were made for their accommodation, and directs their return to the [**8]  several makers, upon payment of the indebtedness for which they had been pledged.
We shall consider these objections in the order stated. In the argument of the case it was not pretended, that Wilson was not entitled to the property mentioned in the deed, as having belonged to the firms of Wilson, Young & Company, and J. C. Wilson & Company, nor that such property did not, at the time of executing it, belong to the firm composed of Wilson and Robert W. Hyman.
On the contrary, the appellees were obliged to assume, in accordance with the theory of their case, that the property so described was property of Wilson, and as such liable to condemnation on their attachment. The first of the objections to the deed was made to depend, not upon a want of title in Wilson to the property in question, but upon the devotion of it to the payment of the debts of the grantors, as co-partners, without regard to the creditors of the antecedent firms, in which Wilson had been a partner, and in that form it presents the 

 [*495]  single question, whether the preference of creditors thus declared avoids the deed? We think it does not. The question, as to the right of the creditors of the antecedent firms [**9]  to satisfaction of their claims, out of the assets of those firms, does not arise upon the face of this deed, and if made at all, it could only be upon evidence dehors the deed, showing the existence of such creditors, and some understanding or contract by which the assets of those firms were charged with, or made liable for, their claims. The cases of Maennel vs. Murdock, 13 Md. 163, and Sanderson vs. Stockdale, 11 Md. 563, fully justify this conclusion. The fact that no provision was made for the creditors of the antecedent firms, in which Wilson had been a partner, does not, in our opinion, avoid the deed.
The objection made to the deed because of the power given to the trustee to compound doubtful debts, we think is also untenable. That power is not inconsistent with the interest of creditors entitled to the benefit of the deed, nor is it of such a character as to secure any improper advantage to the grantors. The execution of the power would diminish the nominal assets, and in that respect operate adversely to the grantors, and on the other hand, the interest of those entitled to claim under the deed would be subserved by avoiding [**10]  the delay incident to the recovery of doubtful debts, and by effecting a more speedy realization and distribution of the assets. It cannot be construed as a reservation to the grantors of any power over, or control of, the property conveyed. In some States it has been held, that the power to a trustee, for the benefit of creditors, to compound with them, would avoid the deed containing it, but upon that point, we express no opinion. We think the deed in this case is not rendered invalid by the power objected to.  Dow vs. Platner, 16 N.Y. 562.
It was contended, in support of the last objection to the deed, that the declaration contained in it that certain notes were made for the accommodation of the grantors, and directing their return to the makers, might operate as a fraudulent reservation to the grantors, and for that reason would avoid 

 [*496]  the deed. As the effect of that clause was to except the notes mentioned from the operation of the deed, and to bar the grantors of the right to recover upon them, we think it does not justify the inference of fraud. But conceding that the grantors did by that clause reserve to themselves a property or interest in [**11]  the notes, the objection then presents the question whether a deed for the benefit of particular creditors, which does not exact releases, and does not upon its face profess to convey all of the grantors' property, is valid? This point was affirmatively decided in the case of Berry vs. Matthews, 13 Md. 537. There seems to be no reason why the deed in this case should be declared void, and we shall therefore reverse the judgment.
Judgment reversed, with leave to take out a procedendo. 

19 of 196 DOCUMENTS 

SAMUEL N. HYDE, JOSHUA S. INLOES and others, vs. GEORGE H. ELLERY and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 496; 1862 Md. LEXIS 41 

July 9, 1862, Decided 

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

Appeal, after answer filed from an order of the court below (KREBS, J.) granting an injunction, upon a bill filed September 23rd, 1859, by the appellees against the appellant. The allegations of this bill are sufficiently stated in the opinion of this court.  

DISPOSITION:
Order affirmed and cause remanded.  

HEADNOTES:

A bill charged that one of the defendants, by false representations as to his solvency and mercantile character, induced the complainant and other merchants in New York, to sell to him, on credit, a large amount of goods, and that the other defendants also imposed upon the complainants by false and fraudulent representations, and by a fraudulent combination between them and the purchaser, for the purpose of defrauding the complainants, and securing their own antecedent debts, obtained, a short time after the purchase, a transfer of the goods from the purchaser to them, and had placed them in the hands of auctioneers to be sold at auction; that the several creditors were unable to use their remedy by replevin, except as to a very small amount of goods, because of intermixture and change of marks, rendering it impossible for each to select and identify his goods, and asked for the transfer to be set aside, and for an injunction to restrain the sale. HELD:

1st. That the difficulty of tracing out and identifying the goods, and the multiplicity of suits necessary to get possession of them, after being scattered into numberless hands by a sale at auction, makes it a case for a court of equity to interfere by injunction, to prevent a multiplicity of suits.

2nd. The relief sought being to set aside a fraudulent transfer of the goods, made to delay, hinder and defraud, creditors, the injunction was necessary as ancillary to that relief.

Upon appeal from an order granting an injunction, the propriety of the order must be determined upon the merits of the bill, without reference to the answers.  

COUNSEL:
P. M'Laughlin, for the appellants:--The bill makes no case for an injunction. There is no allegation of irreparable loss from the insolvency of Inloes & Co., or Hoffmans & Co., in whose possession the goods were at the time of filing the bill, or any other ground of irreparable injury, without which an injunction will not in such a case issue. The injury may be irreparable, either from the nature of the property injured, or from want of responsibility on the part of the person committing it. But the mere allegation that irremediable damage, or irreparable mischief, will ensue, is not sufficient. To satisfy the conscience of the court, the acts must be stated to show that the apprehension of injury is well founded. But here the remedy at law is adequate, and equity has, therefore, no jurisdiction. There are no sufficient allegations of [**2]  fraud in the bill, even if fraud alone, without irreparable injury, would authorize an injunction. But there must be both fraud and irreparable injury:--there is no case to be found in Maryland where an injunction has issued upon a charge of fraud alone. In support of these views, see 13 Price, 327, Izard vs. Colbron; 3 Green's Ch. Rep., 449, Kerlin vs. West; 3 Paige, 213, Hart vs. Mayor, &c.; 9 G. & J., 468, Amelung vs. Seekamp; 2 Md. Ch. Dec., 9, O'Brien vs. Gibbons; 4 Gill 34, Hamilton vs. Ely; 3 Md. 489, Young's Case; 11 Md. 365, Blondheim vs. Moore; Ibid., 376, Rosenberg, et al., vs. Moore; 16 Md. 85, Lewis vs. Levy; 17 Md. 310, State vs Jarrett & Harwood.

I. N. Steele, for the appellees:--The counsel for the appellants misapprehend the grounds on which the jurisdiction of equity is asked for in this case, and his authorities do not apply. Courts of equity have no jurisdiction in cases of trespass and nuisance, except where the remedy cannot be reached by a court of law, and then the only remedy sought is an injunction. But, in this case, the principal relief sought by the bill, being the setting aside of a transfer of personal property made to delay,  [**3]  hinder and defraud the creditors of the grantor, the injunction was necessary as ancillary to that relief; without it any useful jurisdiction of the court over the question of the validity of the transfer would be virtually defeated. The difficulty of tracing out and identifying the goods, their actual consumption and destruction by use, and the multiplicity of proceedings which would be necessary to get possession of them after they were scattered into numberless hands by a sale, make it obvious, that a sale of the goods would render a subsequent decree vacating the transfer a mere nullity. Even in a case of a fraudulent conveyance of real estate, courts of equity prohibit the defendant from selling the property until the question of the alleged fraud is disposed of. This case falls within the operation of Art. 16, sec. 35, of the Code, which makes it unnecessary for the creditor to obtain a judgment in order to vacate a conveyance, contract, or other act, as fraudulent against creditors. The creditor is entitled to the same remedy as if he had obtained a lien by judgment and execution. In support of these views and as fully sustaining the jurisdiction of the court, to grant, and [**4]  the propriety of granting this injunction, see 1 Wat. Eden on Inj., 35, 36; 2 Johns. Ch. Rep., 202, Roberts vs. Anderson; Ibid., 144, Wiggins vs. Armstrong; 9 Paige, 297, Bogert vs. Haight; 10 Paige, 502, New vs. Bame; 1 Md. Ch. Dec., 87, Brown vs. Stewart; 2 Md. Ch. Dec., 537, Allen vs. Burke; 4 Gill 475, Geiger vs. Green; 4 Gill 105, Ricketts vs. Ricketts; 12 Md. 1, Parsons vs. Hughes; Story's Eq., secs. 905 to 908, 954; 16 Md. 77, Rich vs. Levy; 7 Gill 366, Richards vs. Swan; 14 Md. 356, Hubbard vs. Hubbard; 10 Md. 500, Uhl vs. Dillon.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*499]  GOLDSBOROUGH, J., delivered the opinion of this court.
The appeal in this case is taken from an order of the Circuit court for Baltimore city, granting an injunction on the bill of complaint of the appellees, and the rightful exercise of chancery jurisdiction in granting the injunction is to be determined upon the merits of the bill, without reference to the answers of the appellants, filed subsequent to the order. 10 Md. 96. The appellees allege, that the appellant, Hyde, by a series of misrepresentations [**5]  as to his solvency and mercantile character, induced them and other merchants in New York, to extend to him credit for a large amount of goods. That they were also imposed on by the statements of Francis Inloes, one of the firm of Inloes & Co., whose representations were false and fraudulent, and known by him to be so, at the time they were made.
That the goods obtained from the appellees, were, within a short time, (some eighteen days,) transferred to Inloes & Co., without any inventory or bill of sale, and immediately placed in the hands of the other appellants, James and Robert Hoffman, to be sold at auction, and if so sold, there would be a heavy sacrifice on the cost of them.
That it was a fraudulent combination between the appellants 

 [*500]  for the purpose of defrauding the appellees and other creditors of Hyde, and designed to secure to Inloes & Co., an alleged claim against Hyde, which the appellees charge was greatly disproportioned to the value of the stock of goods obtained from them by Hyde.
That even as to that portion of said goods, respecting which it might be contended, that the appellees had a specific remedy at law by an action of replevin, they were [**6]  and are unable to avail themselves of this remedy, except as to a very small amount of goods, because the goods sold by them and others, are so mixed together, and such changes have been made in the marks on them, that it is impossible for each complaining creditor to select and identify the goods sold by and belonging to him.
It then appearing, from these allegations in the bill, to which alone we must confine our attention, that the appellees sold the goods to Hyde under the influence of his false representations, and those of Francis Inloes; that the other appellants conspired, by fraudulent combination, to get possession of the goods, to promote their own interests, by applying them, or their proceeds, to the satisfaction of debts previously due to them, which debts were greatly disproportioned to the actual value of the goods; that the appellants were wholly regardless of the claims of other creditors, evinced by their precipitate conduct in placing the goods in the hands of auctioneers, to be sold at auction, liable to great sacrifice; that Inloes & Co. well knew the failing condition of Hyde, by admitting, that about the time of his obtaining the goods in question, they [**7]  lately purchased "a certain amount of Hyde's paper, for the purpose of bolstering up his credit, and had great difficulty in doing so;" we think that a court of equity was the proper tribunal to take cognizance of this case, and that the prohibitory process of an injunction was the proper remedy to arrest the injury apprehended by the appellees.
If the appellants, as charged in the bill, obtained the goods in question, with notice of the fraudulent manner in which 

 [*501]  they were obtained, without paying a valuable consideration to Hyde for them, at the time of the transfer, the appellees could avoid their contract of sale, and would be restored to their title to them.
This court have said, in the case of Ratcliffe vs. Sangston, Hurst & others, decided at the present term, (ante. 390,) "When the consideration for an assignment or transfer, from a fraudulent vendee, is such, that after a reclamation and recovery by the vendor, the assignee or transferree would remain in the same condition as before the assignment or transfer, it is not sufficient. To make such an assignment or transfer valid against the defrauded vendor, something of value, in the way of property or [**8]  money, should be given or advanced, some service rendered or liability incurred, on the faith and credit of the transfer, and as a present, reciprocal consideration therefor. It follows, that a transfer of goods, by a fraudulent vendee, in consideration of a preexisting debt, confers no title as against the defrauded vendor, who may avoid the sale to the vendee, and recover the goods from the assignee or transferree. 13 Wend. 570. 4 Duer 101. 6 Duer 240. Powell vs. Bradlee, 9 G. & J. 220." This would indicate that the appellees had their remedy at law. But when we regard the difficulty in tracing out and identifying the goods, as stated in the bill, and that a multiplicity of proceedings would be necessary to get possession of them, after they were scattered into numberless hands, by a sale at auction, the injury complained of would fall within the well established ground for resorting to a court of equity, to prevent a multiplicity of suits, by the process of injunction. See 12 G. & J. 12; 6 Johns. Ch. Rep. 497.
The relief sought by the appellees being, to set aside a fraudulent [**9]  transfer of the goods, made to delay, hinder and defraud creditors, the injunction was necessary as ancillary to that relief. And though an injunction may be granted in such a case as is made by the bill, yet it is liable to be dissolved as in other cases, upon the coming in of the answer, if the equity, upon 

 [*502]  which it is founded, is sworn away or denied. 1 Md. Ch. Dec. 87.
Whatever, therefore, may be the result on the final hearing, we see no just ground to disturb the injunction granted in this case, and must affirm the order of the Circuit court.
Order affirmed and cause remanded. 

20 of 196 DOCUMENTS 

ROBERT E. DUVALL vs. JOSEPH N. FEARSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 502; 1862 Md. LEXIS 42 

July 9, 1862, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit court for Harford County.

Debt, brought April 14th, 1856, by the appellee against the appellant, on a judgment of the Circuit court of the District of Columbia, recovered April 6th, 1847, by the plaintiff against the defendant and another. Pleas 1st, nul tiel record; 2nd, payment; 3rd, nil debet; 4th, actio non accrevit infra tres annos. Demurrer to the third and fourth pleas sustained by the court (PRICE, J.) and appeal by the defendant from the judgment thereon, in favor of the plaintiff. The defendant confessed judgment on the first and second pleas, reserving his right of appeal from the judgment on the demurrer.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Neither nil debet, nor limitation of three years, can be pleaded to a judgment of a court of another State, or of the District of Columbia: limitations of twelve years (when limitation is relied on) is the only defence which can be pleaded to such judgment.  

COUNSEL:
Henry W. Archer, for the appellant:--The plea of nil debet must be abandoned, in view of the case of Hughes vs. Davis, 8 Md. 271, but the plea of limitations, it is submitted, is good. This plea does not question the validity of the judgment, nor deny to it "full faith and credit," and has been held good in several cases. Angell on Lim., 169, 170. 11 Johns., 168, Bissell vs. Hall. 13 Pet., 312, McElmoyle vs. Cohen. The principle we contend for, is fully recognized and established in Brengle vs. McClellan, 7 G. &  [**2]  J., 443, where the court held, that the judgment of another State, though conclusive, can rank only as a simple contract claim. Full faith and credit is to be given to it,--its validity is not to be questioned, but in other respects it stands upon the footing of a foreign judgment, or claim upon simple contract. The case of Merchants Bank, 7 Gill 415, is not in conflict with the decision in Brengle vs. McClellan, but on the contrary, the principle in that case is re-affirmed in 7 Gill 436, 437, where the court say, "that the judgment of a sister State, does not have an extra-territoral operation;--that it does not carry with it into another State the efficacy of a judgment." When it is said to be put upon the footing of a domestic judgment, it is not meant that it has the force of a domestic judgment beyond the jurisdiction declaring it to be a judgment, but "a domestic judgment, as to the merits of the claim." Now the plea of limitations does not controvert the merits of the claim, nor any matter established by the judgment;--full faith and credit are given to the judgment;--its validity and conclusiveness are not questioned, and if, as the court say in 7 G. & J., 435, it [**3]  stands in other respects upon the footing of a foreign judgment or claim upon simple contract, our plea of limitations is good.

Otho Scott, for the appellee:--The plea of nil debet is given up on the authority of Hughes vs. Davis, and if so, it must be because the judgment is not a simple contract debt. How can limitations of three years, be pleaded to such a judgment? The judgment converts the debt or claim into a debt of record, to which under our statute of limitations twelve years only is a bar to the remedy. The case in 7 Gill 426, settles the question on this point.  

JUDGES:
The cause was argued before BOWIE, C. J., BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*504]  GOLDSBOROUGH, J., delivered the opinion of this court.
The appeal in this case was taken from a judgment of the Circuit court for Harford county, rendered in favor of the appellee, upon his demurrer to the third and fourth pleas of the appellant, pleaded to an action of debt, on a judgment rendered in favor of the appellee, in the Circuit court of the District of Columbia. The pleas to which the appellee demurred, were nil debet and the statute of limitations, that the action did not [**4]  accrue within three years before the issuing of the original writ in this cause.
The judgment of the court below is correct, and must be affirmed. As to the plea of nil debet, the case of Hughes vs. Davis, 8 Md. 271, is conclusive. This court, in that case, not only sustained the demurrer to a similar plea, but fully recognized the constitutional exercise of the legislative power of Congress, in passing the Act of the 26th of May, 1790, and also the Act of the 27th of March, 1804, extending the provisions of the Act of 1790 to the records and courts of the respective territories of the United States, including the District of Columbia.
In view of this judicial interpretation given to the Act of 1804, by which records and courts of the respective territories, and the judgments of those courts are placed upon an equality with judgments of a State court, it is only necessary, upon the questions raised in this record, to inquire, what is the effect of a judgment in the State where it is rendered? In the case of The Bank of the United States, vs. The Merchants Bank of Baltimore, 7 Gill 415, this interesting question was elaborately considered,  [**5]  and many authorities reviewed. This court, in that case, say that such judgments "are record evidences of debt, or judgments of record, to be contested only in such way as judgments of record may be; and consequently are conclusive upon the defendant in every State, except for such causes as would be sufficient to set aside a judgment in the courts of the State in which it was rendered. In other words, if a judgment is conclusive in the State where it is pronounced, it is equally 

 [*505]  conclusive every where in the States of the Union." Again, this court, in 7 Gill quote from the decision of the Supreme Court, in 13 Peters 325, as follows: "The judgment is put upon the footing of a domestic judgment; by which is meant, not having the operation and force of a domestic judgment, beyond the jurisdiction declaring it to be a judgment, but a domestic judgment, as to the merits of the claim, or subject matter of the suit. By the Law of the 26th of May, 1790, the judgment is made a debt of record, not examinable upon its merits: but it does not carry into another State the efficacy of a judgment upon the property or person, to be enforced by execution."
It [**6]  must then be apparent, that the judgment which is the cause of action in this case, cannot be affected by the plea of the statute of limitations, as pleaded by the appellant, but would be subject to such defence, only, (when limitation is relied on) as is provided by the 6th section of the Act of 1715, chapter 23.
Finding no error in the ruling of the Circuit court upon the demurrer, and the judgment upon the first and second pleas having been confessed by the appellant, the judgment will be affirmed.
Judgment affirmed. 

21 of 196 DOCUMENTS 

MICHAEL MCCABE and others, vs. THOMAS WARD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 505; 1862 Md. LEXIS 43 

July 9, 1862, Decided 

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

Appeal from an order of the court below (PRICE, J.) ratifying a sale of mortgaged real property, upon proceedings instituted by the appellee, November 18th, 1859, and alleged to be under the Act of 1826, ch. 192. The mortgage of real estate situated in that county, was executed by the appellants June 18th, 1855, to John F. Shipley, who assigned it to the appellee, who gave a power of attorney to R. R. Boarman, Esq., intending to vest in him authority to sell the mortgaged property. Many objections were raised to the regularity of the proceedings, but as the case was decided by this court solely upon the insufficiency of the attorney's bond, (which is sufficiently set forth in the opinion of this court,) no further statement of the case is necessary, nor will the arguments upon other points be stated.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

In proceedings on mortgages under the Act of 1826, ch. 192, the jurisdiction does not attach until the preliminary requisites of the Act, and filing a bond in compliance with its provisions, have been strictly gratified.

A bond under this Act, conditioned to abide by and fulfil any order or decree which should be made by Baltimore county court, is a nullity, that court being no longer in existence, and the jurisdiction of the Circuit court for Baltimore county did not attach under such a bond, and its subsequent proceedings, in ratifying the sale, are coram non judice and void. 

COUNSEL:
Chas. F. Mayer, for the appellants:--Proceedings under the Act of 1826, ch. 192, are in derogation of the usual course of equity procedure, and to vest jurisdiction under that Act, which departs from the course instituted by common right, to justify and precede a judicial divestiture of property,  [**2]  all the requirements of the law, preliminary to the vesting of jurisdiction, must be strictly, rigidly and exactly complied with. The bond to be given by the attorney, is one of such requirements. The bond here is a nullity, for, by its condition, it binds the attorney to fulfil the orders of "Baltimore County Court," a court then no longer in existence. Such a bond is no valid indemnity to the parties interested in the sale. The case of Tucker vs. The State, 11 Md. 322, is conclusive upon this point.

A. W. Machen, for the appellee:--The bond conforms to the Act. The condition is in the very words prescribed by the Act. Upon the same grounds that authorize us to construe the words "Baltimore County court," in the Act, as equivalent to "Circuit court for Baltimore county," we are bound to give them that meaning in the condition of the bond, which is imported directly from the Act, and is prescribed by it. Doubtless either phrase would have been sufficient,--but at any rate the Act has been complied with. "Baltimore County court," is one of the constitutional names of the "Circuit court for Baltimore county." Cons., Art. 4, sec. 8. This case is distinguishable from that of Tucker [**3]  vs. The State, for the Act of 1836, ch. 150, sec. 6, in question there, was silent as to the condition of the bond provided for by it. The words "Baltimore County court," might be disregarded as surplussage, and yet leave a good bond. 7 G. & J., 253, Young vs. The State. 1 Wms. Saund., 66, note 4. But if the bond were faulty, it would be no ground for setting aside the sale, (6 Gill 231, Cunningham vs. Schley; 4 Gill 339, Dawes vs. Thomas,) and the objection, going as it does to the jurisdiction, in order to be of any avail, should have been taken in the court below, but is made here for the first time. Finally, this and all the objections that have been urged or suggested to this sale, rest upon the assumption, that a proceeding under the Act of 1826, is to be construed with strictness, as a special statutory proceeding in derogation of common right, but a different view of this Act has been authoritatively adopted, and indeed all or nearly all of the very questions now raised have already been passed upon. 15 Md. 529, White, et al., vs. Malcolm. Ibid., 548, Eichelberger vs. Hardesty. 9 Md. 459, Wilson vs. Watts. If the court were vested with a special jurisdiction,  [**4]  an appeal from it could not be entertained. 15 Md. 197, Balt. & Havre-de-Grace Turnpike Co., vs. Northern Central Railway Co.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*507]  GOLDSBOROUGH, J., delivered the opinion of this court.
The proceedings in this case were instituted in the Circuit court for Baltimore county, on the eighteenth day of November 

 [*508]  1859, and are claimed by the appellee to be in conformity with the provisions of the Act of 1826, ch. 192. A mortgage of certain real estate mentioned in the proceedings was executed by the appellants to John F. Shipley, and by him assigned to the appellee. A power of attorney was given by the appellee to R. R. Boarman, Esq., intended to vest in him authority to sell the mortgaged property.
The appellee instituted the proceedings mentioned in the record, in the Circuit court for Baltimore county, and in view of the above Act, his attorney filed with the clerk of said court a copy of the power of attorney, a copy of the deed of mortgage, and also the deed of assignment.
The attorney, intending to enforce the lien of his principal, executed a bond to the State, designed [**5]  to be in compliance with the second section of the Act of 1826.
This bond, the condition of which was to abide by and fulfil any order or decree made by Baltimore county court, in relation to the sale of mortgaged property, or the proceeds thereof, and to be and remain as an indemnity to, and for the security of, all persons interested in such mortgaged property, was to be approved by a judge of Baltimore county court, or the clerk thereof, prior to the change of the judicial system of Maryland, by the present Constitution. The bond in this case was filed with the clerk of the Circuit court for Baltimore county, and approved by him, not conditioned to abide by and fulfil any order or decree which should be made by the Circuit court for Baltimore county, but to abide by and fulfil any order or decree which should be made by Baltimore county court. The attorney thereafter proceeded to make sale of the mortgaged property, and reported the same to the Circuit court. The appellants filed objections to the ratification of the sale, which, upon hearing, were overruled, and the sale finally ratified.
Though, by the fifth section of the Act of 1826, ch. 192, it is declared, that [**6]  "the court shall have the same power, in the premises, as they now have over sales made by trustees of their own creation," yet it is clear, that such chancery jurisdiction 

 [*509]  does not attach until the preliminary requisites of the Act, and filing a bond in compliance with its provisions, have been strictly gratified. The proceedings to initiate that jurisdiction are wholly ex-parte until the report of sales are brought before the court for ratification, when an opportunity is afforded to "all persons interested in such mortgaged property, to file reasons, if any exist, why the sale should not be affirmed." The attorney had no power to sell the property until he executed a bond, which would be a valid "indemnity to, and a security of, all persons interested." If he did not execute such a bond, then the jurisdiction of the court did not attach, and its action was coram non judice and void. No subsequent adjudication could give the proceedings validity. The ratification of the trustee's report must be considered as having been made inadvertently. There was no case before the court, nothing on which its order of ratification could rest. No court can arrogate to itself [**7]  or sanction the power in another, to dispose of real estate, without the forms of law. See 2 How., 43; 8 How., 495, 556.
We must regard the bond executed and filed by the attorney in this case, as a nullity. The condition is an impossible one, there being, at the time the bond was filed, no such court in existence as Baltimore county court. See 11 Md. 322. This case is unlike that of a trustee appointed by a decree of a court of chancery; in such a case, the decree prescribes the terms and conditions of the trustee's bond, and when, in case of mistake or defect in the condition of the bond, it may be reformed. Again, if it be that the attorney in this case secured his right to sell the mortgaged property, by virtue, not of his appointment only, but also by a strict compliance with the Act of Assembly, we cannot countenance the exercise of that right, without protecting those whose security rests in the legal and binding efficacy of the attorney's bond.
In this view of the case, we deem it unnecessary to express any opinion upon the other points raised by the appellants.
Order reversed and cause remanded. 

22 of 196 DOCUMENTS 

JAMES CECIL, vs. MARY ANN HARRINGTON and CAROLINE COOPER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 510; 1862 Md. LEXIS 44 

July 9, 1862, Decided 

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

The administrator and some of the next of kin and distributees of Wm. Cecil, filed, on the 26th of October 1861, a petition in the court below, against the appellees, daughters of the deceased, charging, that each of them had received from the intestate an advancement more than equal to their respective distributive shares of the estate, and asking that they be excluded from the distribution of the residue. The appellees answered, denying that they had received any thing by way of advancement, but admitting the receipt of a certain sum from the intestate for services rendered him. Witnesses were examined on both sides orally before the court, and the case being submitted without argument, the court decided in favor of the appellees, and passed an order on the 27th of November 1861, dismissing the petition.

James Cecil, a son of the intestate, who was not a party to this petition, appeared by counsel on the 19th of December 1861, and prayed an appeal from this order, and after praying the appeal, his counsel prepared a statement of the evidence, as taken down in writing by one of the judges of the court during the trial, and [**2]  asked the court to inspect it, correct it if necessary, and order the register in the usual way to prepare a transcript therefrom for the purpose of his appeal. On this application the court passed an order reciting, that they had inspected the evidence so prepared, and found it substantially correct, and directing it to be filed and made part of the record to be transmitted to the Court of Appeals. The evidence thus appearing in the record and the arguments thereon, need not be stated, as a motion was made by the appellees to dismiss the appeal, which was sustained by this court.  

DISPOSITION:
Appeal dismissed.  

HEADNOTES:

A party in interest, though not technically a party to the proceedings, may appeal from any order, decree, decision or judgment, of the orphans court, by which he is aggrieved.

But he is not allowed to appeal when the order is passed on summary proceeding, and on testimony of witnesses, unless he immediately notifies his intention, and requests the testimony to be reduced to writing, and the depositions to be at his cost, as provided by Art. 5, sec. 40, of the Code.

The depositions must be taken under this provision of the Code, and reduced to writing, as given by the witnesses, before they can be properly brought before this court for review.

The orphans court has no authority to certify that testimony of witnesses, prepared ex-parte, from notes of one of the judges taken at the trial, is correct, and direct it to be incorporated into the record for the purpose of an appeal.  

COUNSEL:
Thos. Donaldson, for the motion:--The appellant did not comply with the requisitions of Art. 5, sec. 40, of the Code, which provides that, "if the decree, order, decision or judgment shall have been given or made on a summary proceeding, and on the testimony of witnesses, the party shall not be allowed to appeal, unless he shall immediately notify his intention, and request that the testimony be reduced to writing, and in such case the depositions shall be at the cost of the party making the request." This testimony has never been reduced to writing, in the manner thus made necessary [**3]  by the Code;-- there was no notice given to the appellees, nor were any deposition taken. The notes of testimony taken by one of the judges, of his own motion and for his own satisfaction, were no more depositions, in the meaning of the law, than the notes of counsel. The appellant was a party for the purpose of an appeal, and also for the purpose of proceeding in the formal mode required to be followed, before he was allowed to appeal. On taking the appeal his only course was, to give notice to the appellees of his intention to take the depositions of the witnesses in writing, so as to bring the evidence before this court. Having neglected to give that notice and to have the depositions taken, he is "not allowed to appeal," and the motion to dismiss must prevail.

A. H. Hobbs, contra:--Any party who is aggrieved by any decision or order of an orphans court, may appeal therefrom, whether a party to the proceedings or not. 4 Md. 426, Parker vs. Gwynn. 9 G. & J., 324, Stevenson vs. Schriver. Having thus the right to appeal, the appellant, it is submitted, did all that was requisite to bring the evidence properly before this court.  

JUDGES:
The cause was argued before BOWIE, C. J.  [**4]  , BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
COCHRAN 

OPINION:

 [*512]  COCHRAN, J., delivered the opinion of this court
The appellant in this case, was not a party to the original proceedings in the orphans court, but being interested as heir and distributee, he might be said to be aggrieved by the decision, which was adverse to his interest. Under the rulings of this court he was entitled to an appeal, although not technically a party. Stevenson vs. Schriver, 9 G. & J. 324. Parker vs. Gwynn, 4 Md. 423.
The mode of proceeding, to obtain the benefit of an appeal in such a case, is prescribed by the 5th Art. of the Code, sec. 40. Without repeating the provision at length, it is sufficient to say, that it in terms declares, that a party shall not be allowed to appeal, "unless he shall immediately certify his intention, and request that the testimony may be reduced to writing, that in such case the depositions shall be at the cost of the party" making the request. This requirement has not been gratified in this case. The record contains no depositions, properly so called. What purports to be the testimony taken below, was taken, ex-parte, by [**5]  the appellant's counsel, from notes or memoranda taken at the trial, and is certified by the judges to be substantially correct. The orphans court is not authorized, by law, to make any such certificate of evidence taken before them, in a proceeding like this, nor does the law contemplate that the appellate court shall review their decision upon a statement of evidence, or facts, made by the judges of the orphans court. The Code provides, and requires, that the depositions of the witnesses shall be reduced to writing as given by them. Without this is done, the cause is not properly before 

 [*513]  us for review, and the appeal must be dismissed. We forbear the expression of any opinion upon the other questions presented by the arguments.
Appeal dismissed. 

23 of 196 DOCUMENTS 

SAMUEL M. CHAPPELL and others, vs. JAMES H. COX, JR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 513; 1862 Md. LEXIS 45 

July 9, 1862, Decided 

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

Appeal from an order passed on motion to dissolve, continuing an injunction till final hearing.

The bill, filed November 15th, 1859, by the appellee against the appellants, charges, that on the 10th of November 1859, writs of fi. fa. on five magistrate's judgments, obtained July 7th, 1858, by S. M. and J. G. Chappell, against S. Roberts Kramer and Samuel R. Kramer, co-partners, trading as Kramer & Co., were levied by Dorman, the constable, on certain goods in a drug store on Pratt Street, which belonged exclusively to the complainant, under a bill of sale from S. Roberts Kramer, dated January 30th, 1858, conveying all the grantor's interest in "the stock of goods in said store." The bill further charges, that these judgments were fraudulently obtained and are void, because 1st, no process was ever served upon S. Roberts Kramer, he being at that time out of the State; 2nd, the other defendant, Samuel R. Kramer, at the time he was summoned was a resident of Baltimore county, and had previously obtained his discharge under the the insolvent laws, which he exhibited to the justice upon being summoned, and pleaded his non-residence,  [**2]  but the justice disregarded these defences; 3rd, an ex-parte trial was had and the judgment rendered the day after the return of the process, no postponement of the cases having been made as required by the Act of 1852, ch. 76. The bill further charges, that the plaintiffs in these judgments have assigned all their property for the benefit of their creditors, and are wholly insolvent and irresponsible, and if allowed to proceed with the executions and remove the goods as they threaten to do, the complainant will be irreparably damaged, there being no responsibility in the plaintiffs whereby redress could be obtained. The bill prays for an injunction to restrain these executions, which was granted.

Chappell in his answer avers, that since the bill of sale to the complainant, additional goods have been purchased and brought into the stock then in the store, by Samuel R. Kramer, who has ever since been carrying on business in his own name on the premises, so that it would now be impossible to distinguish the goods that were on the premises at the date of the bill of sale from those that have since been placed there, and that this has been done with the full knowledge and consent [**3]  of the complainant, who is, by occupation, a teller in the Citizens Bank, and has never been engaged in the drug business. He further avers, that the complainant has ample remedy at law against the constable who levied the writs, and his official bondsmen. Dorman, in his answer, avers the entire solvency of himself and his official bondsmen.

Testimony was taken, by which the allegations of the answer, as to the purchase and intermixture of goods subsequent to the bill of sale to the complainant, was established. It was admitted that S. Roberts Kramer has been absent from the State since March 1858, that Samuel R. Kramer resided in Baltimore county during that year, and had obtained his discharge under the insolvent laws as stated in the bill. It was also admitted, that at the date of the bill of sale, S. Roberts Kramer was the exclusive owner of the stock of goods in the store, and covered by the bill of sale, and had the exclusive right to make the same. On hearing the motion to dissolve, the court (KREBS, J.) delivered the following opinion:--

"I am of opinion, that the several judgments, the executions of which have been enjoined in this case, are void as judgments against [**4]  Samuel R. Kramer and S. Roberts Kramer. The summons in the cases in which they were rendered, were issued against them as joint defendants, and it is not pretended that the summons against the latter were ever served upon him, it being impossible to serve them, as he was then absent from the State. There was no appearance for him before the justice by attorney or otherwise, and so far as he is concerned, these judgments have been obtained against him without any process whatever. It is to be observed, that these judgments are not rendered against Samuel R. Kramer, as might have been done if the summons had been returned "served," as to him, and "non est" as to S. Roberts Kramer, but against them jointly, whilst there was no proceeding before the justice to warrant such judgments, and for that reason they cannot be enforced, either at law or in equity. The complainant's title to the property on which the defendants claim the right to levy, is derived under the bill of sale filed in the cause, and it is conceded that it transferred to him a good title to the property described in it, and the property now in the store referred to in the proceedings, would, in law, be presumed to be the [**5]  same as transferred, except so far as other merchandize may have been intermingled with it. 2 H. & G., 415, Hudson vs. Warner, et al. And conceding that there has been some intermixture of property, yet the complainant has such an interest in the stock of goods, which the defendants claim the right to seize, as to entitle him to dispute the validity of these judgments, which I consider void, and for that reason should be enjoined. I will pass an order continuing the injunction." From the order so passed, the defendant appealed.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

Where magistrates' judgments were rendered against a party, who could have had full and ample relief at law, by an appeal, equity can afford him on relief as against such judgments.

A party claiming a stock of goods in a store, by bill of sale from one partner of the firm, permitted the other party to continue the business, and buy other goods, and bring them into the store. Executions on judgments against such continuing partner, were subsequently levied on goods in the store. HELD:

That if by permission of the party claiming under the bill of sale, his property became so intermingled with that of the defendant in the judgments, as to prevent separation or identification, and he failed to point out his goods to the officer, a court of equity will not aid him.

Where the property of one is taken in execution, under judgments, against another, and the officer, making the levy, is able to meet the responsibility, the remedy at law is adequate, and a court of equity has no jurisdiction.  

COUNSEL:
Robt. D. Morrison, for the appellant.

1st. Even if the complainant had any interest in these goods as tenant in common, the officer had a right to take possession for the purpose of disposing of the interest of the defendants in the judgments. 2 Met., 39, Reed vs. Howard. 5 Blackf., 337, Burgess vs. Atkins. 7 Man. & Gran., 240. Johnson vs. Evans. 11 Iredell, 291, Blevins vs. Baker. 1 Jones N. C. Rep., 378, McPherson vs. Pemberton. Ibid., 385, Vann vs. Hussey.

2nd. If the complainant owned a portion of the goods, and the Kramers, or either of them, another portion, the officer had a right to take the whole,  [**6]  unless the complainant pointed out to the officer the portion belonging to him. 8 Md. 301, Hamilton vs. Robinson.

3rd. The injunction ought not to have been granted, because the bill does not negative an adequate legal remedy. The officer who levied the execution is not pretended to be insolvent, and the complainant has remedy against him at law. 4 Gill 34, Hamilton vs. Ely.

4th. It was not competent for the court below to inquire into the judgments sought to be restrained, or interfere with proceedings under them in this collateral way, as the errors complained of were such as would have been rectified on appeal. 8 Gill 433, Richardson's case. 10 G. & J., 358, Fowler vs. Lee. 2 Md. 320, Brumbaugh vs. Schnebly. 13 Md. 58, Peters vs. League. Ibid., 566, Katz vs. Moore.

5th. The defects alleged against the judgments, concerning the day they were rendered, and the disregard of the pleas by Samuel R. Kramer of non-residence and insolvency, are, in point of law, no defects at all, and the judgments may have been perfectly proper, admitting these allegations to be true. Act of 1852, ch. 76. Ev. Pr., 196, 197.

6th. The non-summoning of S. Roberts Kramer,  [**7]  is an objection that can be taken by no one but himself, and can in no way affect the judgments as against Samuel R. Kramer, who appeared to the cases and defendant them.

7th. The judgments as against S. Roberts Kramer, who was not summoned, are not void, and would not, at his instance, be set aside, unless the enforcement of them against him would be inequitable. 10 G. & J., 358, Fowler vs. Lee.

T. M. Lanahan, for the appellee.

1st. The judgments upon which the executions issued, were void, as against both defendants. The process was issued against them as joint-defendants, and no service was ever made upon one, and no appearance entered for him, and as far as he was concerned, the judgments were rendered without any process whatever.

2nd. No judgment was rendered against Samuel R. Kramer, as might have been done if the process had been duly returned, but against both jointly.

3rd. The return day of each warrant was July 6th, 1858, and under the Act of 1852, ch. 76, unless the defendants appeared and were ready for trial, the cases must be postponed for not less than six, nor more than fourteen days, and yet a trial was had ex-parte, and judgments rendered [**8]  against both defendants July 7th, 1858. Such a proceeding is in direct contravention of this Act, and is wholly void.

4th. The appellee having purchased all the property in the store where the levy was, under a valid bill of sale, had such an interest in it as to entitle him to dispute the validity of these judgments. 2 H. & G., 415, Hudson vs. Warner, et al.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*518]  GOLDSBOROUGH, J., delivered the opinion of this Court.
The appeal in this case is taken from an order of the Circuit court for Baltimore city, continuing an injunction upon the hearing of a motion by the appellants to dissolve the same.
After a review of the record presented to us, we think it is manifest that the Circuit court erred in continuing it. The judgments obtained by the appellant, Chappell, and which are sought to be enforced, were rendered by a justice of the peace, from whose decision, Samuel R. Kramer having a right of appeal, certainly had full and ample relief at law, and failing to avail himself of that remedy, equity could furnish him no relief. See 2 Md. 320. 17 Md. 188. [**9]  The appellee, however, alleges in his bill of complaint, that the executions issued on these judgments were levied on certain personal property belonging exclusively to him, and as evidence of his title relies upon a bill of sale executed on the 30th day of January 1858, by S. Roberts Kramer, who was, at that time, one of the firm of Kramer & Co., Samuel R. Kramer being the other partner. By reference to this bill of sale, we find that it confines the sale to the interest of S. Roberts Kramer in the property then on the premises. The executions were levied on the 11th day of November 1859. The appellants allege in their answer, and it appears from the evidence in the cause, that Samuel R. Kramer had, in the interval between the date of the bill of sale and the levying the executions, purchased sundry goods suitable to the business carried on by the firm of Kramer & Co., that those goods were placed on the premises and intermingled with the general stock in trade, and that Samuel R. Kramer principally conducted the business in this interval, the appellee being a clerk in the Citizens Bank of Baltimore, and never engaged in the drug business.

 [*519]  In view of these [**10]  allegations and the evidence sustaining them, we do not question the right of the appellant, Chappell, or his assignee to enforce his judgments by executions, and the executions coming to the hands of the appellant, Dorman, he was fully justified in levying on the property of Samuel R. Kramer; and if, by the permissive act of the appellee, his property became so intermingled with that of Samuel R. Kramer as to prevent a separation or identification, and he failed to point it out to the officer Dorman, the rights of the appellant ought not to be affected thereby. See 8 Md. 321.
Although the appellee charges in his bill, that the appellant, Chappell, assigned all his property for the benefit of his creditors, and that he, the appellee, would be irreparably injured by enforcing the executions, it is not pretended that the appellant, Dorman, who levied the executions, was not abundantly able to meet the responsibility resulting from the levy on the property claimed by the appellee.
If the officer did so levy on his property, to satisfy the debt of Samuel R. Kramer, the appellee had an adequate remedy at law, thus excluding a court of equity from granting him relief.  [**11]  
The case of Fowler vs. Lee, 10 G. & J. 358, fully illustrates the caution with which courts of equity interfere with judgments at law, and justifies us in deciding this case in conformity with the principles announced in that. It is not intimated by the appellee, that the claims, upon which the judgments were rendered, were not bona fide due. The defendants could not have sought the intervention of a court of equity without doing equity, and yet the appellee seeks to place himself intermediately between a creditor and debtor, to shield the debtor's property from execution for the payment of a just and undisputed debt, and that, too, upon the ground of mere apprehension of injury arising from the intermixture of the debtor's goods with those claimed by him, to which intermixture he tacitly consented.
Order reversed and cause remanded. 

24 of 196 DOCUMENTS 

LYMAN FULTON vs. SAMUEL F. MACCRACKEN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 528; 1862 Md. LEXIS 47 

July 9, 1862, Decided 

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

Assumpsit, brought August 27th, 1852, in the Circuit court for Baltimore county, and thence removed, on suggestion of the plaintiff, to the Superior court of Baltimore city for trial, by the appellee against the appellant and John M. Linn, partners trading as Fulton & Linn, endorsers of a promissory note. Linn was returned non est, and Fulton appeared and pleaded non assumpsit, and the case proceeded as against him.

Six exceptions were taken by the defendant to the rulings of the court below (LEE, J.) The facts of the case, as to the making, endorsement, discount and protest of the note, and the first and second exceptions, are fully stated in the opinion of this court.

3rd Exception: After the court had admitted the protest, and the form of a notice of it as stated in the preceding exceptions, the plaintiff gave some evidence of the existence of a partnership between Fulton and Linn, and how they conducted business, &c., and then offered the deposition of Giraud Foster, the notary who protested the note in New York, in which, after stating the presentment, demand, refusal and protest of the note, on the 11th of October [**2]  1849, he says, that on the next day, he put in the post-office in New York, before the closing of the western mail, two notices of the protest of the note for non-payment, and that the holders looked to them for payment, addressed respectively to Sumner Clark, Fulton & Linn, and Samuel F. Maccracken, enclosed in a similar notice to W. Slade, Jr., cashier of the Hocking Valley Bank, Lancaster, Ohio, he being the last endorser, and Lancaster, Ohio, being his place of business, and he was the only endorser whose place of business or residence was known to witness, and that said notices were all sent in one enclosure. The defendant objected to so much of the deposition of this witness, as related to the protest or notices of protest, or the sending thereof in the manner stated, but the court admitted the same, and to this ruling the defendant excepted.

4th Exception: The plaintiff then offered in evidence the deposition of W. Slade, the cashier of the Hocking Valley Bank, in which he says, the note was discounted at his bank, and "I am quite confident it was discounted for the benefit of Fulton and Linn, whose names appear as endorsers thereon;-- I think Mr. Linn presented it at the [**3]  bank, and attended to the matter himself. I cannot positively state in what manner he received the proceeds, whether in currency or drafts on banks, but he received the proceeds in whatever shape paid. I am quite confident the note was not paid at maturity, and returned to the bank under protest from New York; my impression is, the notices of non-payment, sent by the notary, all came under envelope to me, and were by me, by next mail, forwarded to the endorsers;--my invariable custom was to forward notices to endorsers by the next mail which left Lancaster--I do not remember a single instance in which I failed. The notice to Fulton and Linn, in the present case was, I think, so sent, and my impression would be, was sent to Cincinnatti, where they resided or did business. I was always very careful to leave nothing undone to fix the liability of endorsers. Some time after maturity the note was taken up by the plaintiff, whom I always regarded as accommodation endorser; I believe the note was discounted for the benefit of Fulton and Linn, and that they received the proceeds; that the plaintiff was mere accommodation endorser; that notice of non-payment was sent to Fulton and Linn, the [**4]  next mail after it came to the bank, and that the plaintiff afterwards took up the note, that the plaintiff took up the note after his liability was fixed by notice of non-payment, which notice came in same envelope with other notices, and was, as I think, served on the plaintiff by myself--I was not intimately acquainted with him." In answer to a cross-interrogatory, whether he had any distinct and positive recollection that he mailed any notices of protest to the endorsers of said note, in the manner and at the time mentioned in his answers to the direct interrogatories? the witness stated, "that while he had no doubt that he did mail such notices, he could not say that he distinctly remembered the precise fact."

The defendant objected to the admissibility of so much of the deposition of this witness as contained statements of his impressions, or of his invariable custom, or of any matter of fact which he did not distinctly remember, but stated from impressions or customs only. The court admitted the whole, and to this ruling the defendant excepted.

5th Exception: The plaintiff then, after other evidence, offered the deposition of Richard M. Corwine, Esq., a lawyer of Cincinnatti,  [**5]  residing there in 1849, and of the law firm of Spencer and Corwine, who stated that he had acted as attorney for Lynn, and had brought a suit for Fulton and Linn, use of Fulton, vs. J. R. Betts, et al., in the District Court of Ohio, for Hamilton county; that his law firm received one letter from Fulton on that subject; that the claim was assigned to Maccracken, but witness does not know how and when it was assigned; that the suit has been finally decided, the money collected and paid over to the proper party, in accordance with the assignment of Fulton to Maccracken; that the assignment purported to come from Fulton, and came to witness' firm in such a way as left no room to doubt it did come from him; his impression was, his firm was notified of it by V. Worthington, who, as witness understood, represented Fulton in some way in his matters in Cincinnatti, but he is sure his firm were notified of the assignment in a letter which they received from Baltimore, purporting to come from Fulton, and the assignment contracted for the payment of the money.

The defendant objected to the admissibility of the whole deposition of this witness, he being the attorney for the defendant, but [**6]  the court admitted it, and to this ruling the defendant excepted.

6th Exception: The plaintiff then asked two instructions to the jury:--

1st. That if they believe from the evidence in the cause, that the note of Wm. Bradley for $ 2000, given in evidence, was discounted for the use and benefit of the defendants under the firm name of Fulton and Linn, and that they received the proceeds of it, and that the plaintiff was the immediate subsequent endorser thereon, and has paid the same, and is now the owner thereof, that then the plaintiff is an accommodation endorser upon said note for the benefit of the defendants, and is entitled to recover in this action without proving that notice of the dishonor of said note was given to the defendants.

2nd. That if they shall find from the evidence in the cause, that the plaintiff was an accommodation endorser for benefit of defendants, upon the note given in evidence, and that the defendants received the proceeds of the same and were immediate prior endorsers thereon, then the plaintiff is entitled to recover in this action without proving that notice of protest of said note was given to the defendants, if they shall find that the [**7]  plaintiff has paid said note and is now the holder thereof.

The defendant then offered five prayers, all of which but the fifth are sufficiently stated in the opinion of this court. The fifth prayer is in substance as follows:--

5th. That if the jury find, that in the year 1849, the defendant resided in or near Baltimore, and Linn resided in or near Cincinnatti, and that defendant sent $ 8,000 or $ 10,000 to Linn, to be used by him in buying notes or discounting paper, but that it was not the intention of the defendant to form any general co-partnership with Linn, either for the purpose of buying notes or discounting paper, or for any other purpose, and that he never authorised Linn to establish a firm at Cincinnatti, consisting of defendant and Linn, under the name of Fulton & Linn, and never authorized Linn to sign or endorse the name of Fulton & Linn on any paper, or to obtain loans or discounts on the credit of the defendant; and if they further find, that defendant did not know that Linn had made use of the name of the firm of Fulton & Linn in the establishment of a business in Cincinnatti, and in obtaining discounts of paper until his arrival in Cincinnatti, as stated [**8]  by the witness Halloman, and until after the note, on which this suit is brought, had been discounted by the Hocking Valley Bank, as stated by the witness Slade, (if the jury shall find that such discount was made, as stated by the witness Slade, and also the facts as stated by said Halloman;) and if they further find, that the defendant, on being informed that such a firm had been established, objected thereto, and denied the existence thereof, and that the defendant received no part of the money obtained by the discount of the note, on which this suit is brought, and derived no benefit therefrom, then the plaintiff is not entitled to recover.

The court granted the plaintiff's prayers and rejected those of the defendant as presented, but granted the fifth with this modification: "Unless the jury shall find, from all the evidence in the cause, that Fulton and Linn were jointly interested in the business of selling, buying and discounting paper, and that the plaintiff had no knowledge, when he endorsed for Fulton and Linn, that any agreement or limit had been fixed, by said Fulton, upon the authority of said Linn, in relation to the negotiation of paper."

The defendant excepted [**9]  to the granting of the plaintiff's prayers, the rejection of his own, the modification of his fifth prayer, and the granting of the same as modified, and the verdict and judgment being against him, appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A protest should designate or identify the note to which it refers: this is usually done by putting on it a copy of the note, but if the original note be annexed, and referred to in the body of the protest, that is sufficient.

And where a protest appears without either the note or a copy, but there is endorsed on it a memorandum of the maker, amount, endorser, and date of protest, corresponding with the note in suit, this is sufficient to admit the protest in evidence.

It is no objection to a notice of protest that the notary's name was printed instead of signed: all that is required is, that the notarial certificate should appear to be the the act of the officer, and he may employ a clerk, or a printing press, to sign his name.

Where a witness, after testifying cautiously and hesitatingly, as to sending notices of protest, said, on cross-examination, he had no doubt he did mail the notices, but could not say he distinctly remembered the precise fact, his evidence may go to the jury.

It is the province of the jury to determine the weight and credibility of evidence, and to pass upon its sufficiency to prove the fact sought to be established.

Testimony of a lawyer, that he brought suit for a certain firm, recovered judgment, collected the money, and paid it over to a party, to whom one of the firm, by letter and assignment, directed him to pay it: is admissible, such facts are not privileged communications from his clients.

Where the defendant's liability depended on the existence of a partnership, and there was evidence on that subject proper for the jury, a prayer, denying the plaintiff's right to recover, based on the theory of principal and agent (of which there was also evidence) and ignoring the partnership, is erroneous.

A prayer, that if the jury find that the note sued on was discounted for the benefit "of the defendants under the firm of Fulton & Linn, and that they received the proceeds" thereof, does not assume the fact of partnership, but leaves to the jury to find the existence of the firm, which they could not do without finding a partnership existed.

Where a note was discounted for the benefit of the defendants, endorsers thereof, and they received the proceeds, and the plaintiff was the immediate subsequent endorser, and paid it, and took it up after protest, the plaintiff was an accommodation endorser for the defendants, and, as between them, no notice of dishonor to the defendants was necessary to entitle the plaintiff to recover.  

COUNSEL:
Edw. O. Hinkley and F. W. Brune, for the appellant:

1st. The admission of the protest was error, because it contains no copy of the note protested, for verification or identification, but only refers to a note annexed, and so anybody might annex any other note, and thus it leaves room for fraud. Byles on Bills, 191. Chitty on Bills, 458, 462.

2nd. The admission of the notice of protest was error, because the signature of the notary to it is printed, and not subscribed in writing. The giving of notice must be the notary's own act, and must be evidenced by his signature in his own handwriting, so that if necessary, it could be identified as his handwriting and signature, otherwise great frauds might be perpetrated, no opportunity being afforded for their correction. Edwards on Bills, 466, 629.

3rd. The admission of the deposition of the notary was error, because he does not appear to have given any copies of the notices of protest sent, and [**10]  they ought to accompany the deposition in order that it may be known precisely what he did send. But supposing the printed form of protest before referred to, is what he sent, it is not sufficient, because the signature is in print as before mentioned, and because he sent two notices to three persons, and it does not appear how he directed the envelope. Surely this uncertainty is not sufficient evidence of notice to bind an endorser.

4th. The admission of Slade's deposition about his impressions, with reference to having given notices of protest, was error. He says, "My impression is;"--"My invariable custom was;"--"I do not remember a single instance in which I failed;"--"The notice was, I thought, so sent;"--"My impression would be to Cincinnatti;"--"I was always very careful to leave nothing undone," &c., and when asked on cross-examination whether he had any distinct and positive recollection, that he mailed any notices in the manner he had mentioned? he said that, "while he had no doubt that he did mail such notices, he could not say that he distinctly remembers the precise fact." Such vague indefinite impressions without any distinct remembrance about the matter, are not [**11]  sufficient evidence to bind an endorser. 3 G. & J., 474, Flack vs. Green. 8 G. & J., 421, Pocock vs. Hendricks.

5th. The admission of Corwine's deposition was error. He speaks of a letter and an assignment, but does not produce either. Again, it was the privilege of the defendant to refuse to allow his attorney to testify against him with regard to the conduct of his suit. 2 Md. Ch. Dec., 231, Chew vs. Farmers Bank.

6th. The plaintiff's first prayer is erroneous, because it instructs the jury upon certain insufficient facts therein stated, that the plaintiff is by law an accommodation endorser for the benefit of the defendant, and entitled to recover without notice of dishonor to the defendant. The second prayer submits, as a question of fact to the jury to find, that the plaintiff is an accommodation endorser, and then dispenses with notice to the defendant as in the first prayer, and besides, it assumes that the plaintiff had a right to volunteer to pay the note without a protest of it or any notice given to him to fix his liability, and then hold the defendant. Both prayers are moreover defective in omitting the finding by the jury of the several endorsements including [**12]  that of the defendant, and in assuming the existence of a partnership, in relation to which there was conflicting evidence, and calculated to mislead the jury by leaving them to find, that both defendants received the money on discounting the note, when the evidence, is positive, that Linn alone received it, and his acts, without a partnership, would not bind both. 10 Md. 122, Boyd vs. McCann.

7th. The rejection of the defendant's first, second and third prayers, was error. The liability of the defendant without notice, could only be on the ground, that he was not damnified by want of it: but here he plainly is, because if he did not get notice, his prior endorser might not, and so he might lose his remedy as against him, for it is to be noticed that the defendant was the second endorser and the plaintiff the third, and there was a first endorser, who would have been liable to the defendant, if he had been duly notified. Besides, without due notice to the defendant, his remedy over against the maker might have been impaired. The reason of the rule dispensing with notice in other cases being wanting in this instance, the rule itself must cease. Besides, as to the third prayer,  [**13]  if the plaintiff, himself, was discharged, for want of notice, he cannot volunteer to pay the bill and charge the defendant. Byles on Bills, 213, 218, 221. Chitty on Bills, 433 to 440. Story on Prom. Notes, secs. 268, 269. Edwards on Bills, 452 to 464. Bayley on Bills, 294. Ross on Com. Law, 536. Peake, 202, Wilks vs. Jacks. 15 East., 216, Brown vs. Maffey. 3 Barn. & Ald., 619, Cory vs. Scott. 8 Barn. & Cress., 610, Norton vs. Pickering. 16 Mees. & Wels., 743, Carter vs. Flower. 4 Cranch., 141, French vs. Bank of Columbia. 10 Pet., 578, Dickens vs. Beal. 2 How., 66, Burke vs. McKay. 20 How., 443, Brown vs. Wiley. 7 H. & J., 381, Eichelberger vs. Finley. 9 Gill 360, Orear vs. McDonald. 2 Md. 363, Renwick vs. Williams. 3 Md. 210, Boehme vs. Carr. 5 Md. 400, Yates vs. Donaldson. 10 Conn., 308, Holland vs. Turner. 7 Mass., 449, Warder vs. Tucker. 11 Johns., 180, Agan vs. McManus. 5 Ala., 683, Sherrod vs. Rhodes.

8th. There is error in the modification to the fifth prayer, because it is repugnant to, and entirely inconsistent with, the first part of the prayer, and the whole instruction, as it stands, assumes facts, and is improper in view of the evidence. 13 Md Rep.  [**14]  , 241, Andre vs. Bodman. 7 G. & J., 24, Cole vs. Hebb. 1 Gill 144, Whiteford vs. Burckmyer & Adams. 4 Md. 269, Day, et al., vs. Day. 6 Md. 19, Atwell vs. Miller, et al. Ibid., 151, Key vs. Dent. 7 Md. 101, Union Bank vs. Kerr. Agreement for a share of the profits does not make partners, even as against third persons, if there was no act holding himself out to the public, on the part of the person to be charged. 1 Foster, 93, Newman vs. Bean. 6 Ala., 215, Hodges vs. Dawes. 6 Met., 82, Denny vs. Cabot. 1 Penn. State Rep., 255, Dunham vs. Rogers. 1 Denio, 337, Burckle vs. Eckart. 2 Md. 38, Bull vs. Schuberth.

W. M. L. Marshall and J. Dean Smith, for the appellee:

1st. The production of the protest, duly made by the notary is prima facie evidence, to prove the fact of the presentment and non-payment of the note, the proof of which, in the present case, was the sole purpose of its production. The endorsement on the protest sufficiently shows, that the note to which the protest refers, was the note sued on. Act of 1837, ch. 253. 2 Pet., 179, Townsley vs. Sumrall. 4 Gill 201, Barry vs. Crowley.

2nd. The printed signature of the notary to the notice of [**15]  protest, is a sufficient signing, and equivalent to a written signature. Byles on Bills, 315. 17 Md. 159, Munroe vs. Woodruff & Robinson. 2 Bos. & Pull, 238, Saunderson vs. Jackson. 2 Maule & Selw., 286, Schneider vs. Norris.

3rd. The notary is a proper witness to prove the sending of the notice, and his statement of the form of the notice sent, as to its competency, is governed by the same rules as would be applicable to the notice itself, were it produced. There can be no well founded objection to his evidence. 2 Pet., 179. 10 Pet., 572, Dickens vs. Beal. 2 Doug., (Mich. Rep.,) 428, Spies vs. Newberry.

4th. The testimony of Slade is sufficiently precise as to the time when he sent, and that he did send the notices to the prior endorsers, to be evidence legally competent to be submitted to the jury. The credibility of this testimony, as well as its sufficiency to prove the fact, that the notices were sent at that time, is a question for the jury to determine. 1 Greenlf's Ev., sec. 4. 2 Pet., 44, Columbian Ins. Co., vs. Lawrence. 7 Gill 223, Bell vs. Hagerstown Bank.

5th. Corwine was a competent witness to testify to the statements of the defendants, as to the [**16]  existence of their firm. These statements were not made to him under privilege of professional confidence. 7 Martin N. S., (La. Rep.,) 177, Cormier vs. Richard. 3 Mylne & Craig, 521, Desborough vs. Rawlins. 2 Barn. & Cress., 748, Bramwell vs. Lucas.

6th. As to the prayers on both sides, it is contended:--

1st. That the word "firm," in mercantile law, signifies "partnership," and the words of the plaintiff's first prayer, "that if the jury believe from the evidence in the cause that the note given in evidence, was discounted for the use and benefit of the defendants, under the firm name of Fulton and Linn, and that they received the proceeds," &c., are of the same effect, as if the court had told the jury that if they believe from the evidence, that the note was discounted for the use and benefit of the defendants as partners, &c. In each case the question of partnership is brought out for the consideration of the jury, upon the evidence. 1 Bouv. Law Dic.--Firm. Story on Part., secs. 150, 299, 300. 1 Greenl. Ev., secs. 22, 527 a. 5 Shepley, 235, Ellis vs. Jameson.

2nd. The court properly instructed the jury in the same prayer, to find the plaintiff an accommodation endorser,  [**17]  provided they found from the evidence, that, as immediate prior endorsers, the defendants received the amount of the note by discounting it at the bank, after they had obtained the plaintiff's endorsement upon it. 9 Barn. & Cress., 44, Sharp vs. Bailey. 1 Ala., 565, Wallace vs. Branch Bank. 2 Ala., 502, Mauldin vs. Branch Bank.

3rd. The court also properly instructed the jury in the plaintiff's second prayer, that notice was unnecessary to be proved in this case, provided they found the plaintiff to be an accommodation endorser on the note, for the benefit of the defendants: --1st. Because a waiver of notice is implied by law between them, the defendants being primarily liable. Chitty on Cont., 443. Bailey on Bills, 100. Story on Bills, sec. 310. 12 Mees. & Wels., 706, King vs. Phillips. 7 Bing, 217, Bagnall vs. Andrews. 2nd. And they being ultimately, and at all events, bound to pay, notice would be superfluous, they receiving no injury as to the accommodation endorser, from his alleged neglect to send the notice. 4 Taunt., 732, Leach vs. Hewitt. 4 Taunt., 464, Jones vs. Brooke. Parson's Mer. Law, 93. 11 Johns., 180, Agan vs. McManus. 7 Wend., 168, Mechanics Bank vs. Griswold.  [**18]  1 Term Rep., 405, Bickerdike vs. Bollman. 18 Johns., 327, Stafford vs. Yates. 5 Cowen, 309, Mead vs. Engs. 3rd. Because the accommodation endorser is surety for the party accommodated. 3 Barb., 634, Baker vs. Martin. 16 Johns., 70, Hubbly vs. Brown.

4th. From the propositions above laid down, the court properly rejected the first and second prayers of the defendants. As to their third prayer, the appellee insists, that the design of notice of protest is not retrospective, but has relation to prior parties merely, and thus cannot be frustrated, because notice has not been sent to a subsequent endorser, that the rule of notice is not absolute--it may be waived; but the waiver is a voluntary relinquishment of one's right of notice, as to subsequent endorsers only; ex vi termini, it cannot include prior endorsers, unless the design of notice is frustrated as to them by the waiver. Finally the law will presume payment to be made in conformity to its rules, unless otherwise proved, the onus of proof being on the party denying it. 5 Cowen, 309. 3 East., 193, Williams vs. East India Co. 7 Wend., 198, Garlock vs. Geortner.

5th. The court also properly rejected all the defendant's [**19]  prayers, for the reason that, they are erroneous in asking instructions of the court as to the sufficiency of the evidence, which is a question for the jury themselves to determine, and not for the court. 1 Greenl. Ev., sec. 4. 2 Pet 148, Van Ness vs. Pacard.  

JUDGES:
The cause was argued before BOWIE, C. J., BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*540]  BARTOL, J., delivered the opinion of this court.
This is an action on a promissory note brought by the appellee against the appellant, and one John M. Linn, as partners, constituting the firm of Fulton & Linn. Linn being returned non est, the cause proceeded against the appellant, and this appeal is taken from the judgment rendered against him. In the progress of the trial six bills of exception were taken.
The note sued on was for $ 2000, dated Cincinnatti, July 10th, 1849, made by William Bradley, at ninety days, payable to the order of Sumner Clark, at the office of the Ohio Life and Trust Company, New York; Sumner Clark endorsed the note to Fulton & Linn, who endorsed it, procured the endorsement of the appellee, Maccracken, thereon, for their accommodation, and obtained a discount of the note for their use,  [**20]  at the "Hocking Valley Bank, of Lancaster, Ohio," of which bank William Slade, Jr., was cashier. Slade specially endorsed the note as follows: "Pay to J. Punnett, Cashier, or order.--Wm. Slade, Jr., Cashier."
The note was duly presented and dishonored, and being returned to the Hocking Valley Bank, was paid by the plaintiff.
To prove the partnership, the appellee offered, at the trial, a record of a suit brought at Cincinnatti, June 1849, by Lyman Fulton and John M. Linn, as partners, under the firm name of Fulton & Linn, against John R. Betts and others; which evidence was admitted by the court without objection on the part of the appellant. To prove the presentment and non-payment of the note, he offered the protest made by the notary public, to the admission of which, in evidence, the appellant took his first bill of exceptions.
The protest is in the usual form, stating that "the original promissory note hereto annexed" was presented to one of the clerk's in the office of the Ohio Life and Trust Co., in the city of New York, and payment thereof demanded of him, which he refused, saying, "No funds." The only objection made to the protest is, that "it contains no copy of [**21]  the note presented for verification or identification, but only refers to a note annexed."

 [*541]  The Act of 1837, ch. 253, makes the protest of a notary public, duly made, prima facie evidence of the facts stated in it. It is necessary that it should designate or identify the note to which it refers; this is usually done by putting on it a copy of the note. But if the original note itself be annexed, as was probably done in this instance, and be referred to in the body of the protest, that would be sufficient. As it appears, however, in the bill of exceptions, the protest is without the note or a copy of it. But on the back is this endorsement: "Wm. Bradley--note, dolls. 2000--for W. Slade, Jr., Cash'r. Protested Oct. 11th, 1849.--J. P. Giraud Foster, Notary Public and Attorney at Law."
In our opinion this endorsement is a sufficient memorandum to show, that the protest referred to the note sued on, and therefore that the protest was properly admitted as evidence, under the Act of Assembly.
The second exception is to the admission in evidence of the notice of protest, given by the notary. No objection is made to the form or contents of the notice, but it is contended [**22]  the name of the notary ought to have been signed by himself, in his own handwriting, instead of being printed. In our opinion, this exception is not well taken; all that is required is, that the notarial certificate should appear to be the act of the officer. In Munroe vs. Woodruff & Robinson, 17 Md. 159, we decided that such official acts may be performed by a clerk employed by the notary; his name need not be signed by his own hand; it is sufficient that it be affixed by his authority or direction; he may employ the hand of a clerk for that purpose, or a printing press.
The third exception was taken to the admission of the depositions of Giraud Foster, the notary, with reference to the sending of notices of protest. In the argument of the cause in this court, we did not understand the appellant's counsel as insisting upon this exception, and we think there was no error in admitting the evidence. The fact that the notary's name was affixed in print, as we have before said, is no valid objection, 

 [*542]  nor do we consider any of the other objections made by the appellant to this evidence, as valid or supported by authority.
The fourth exception presents [**23]  for our consideration the testimony of the cashier, William Slade, Jr., which, it is contended, was improperly admitted, because it is alleged to be mere vague and indefinite impressions of the witness, without any distinct knowledge or recollection of the facts about which he testified. This exception was very earnestly and ably pressed by the appellant's counsel in the argument. But after the best consideration we have been able to give the subject, and to the authorities adduced, we are of opinion the testimony was properly admitted. It is impossible to read the witness' testimony without being struck with his cautious and hesitating manner of stating his recollection and belief. Taking the whole together, however, we think it was sufficiently definite to be submitted to the jury. The main fact which the witness was called to prove was, the sending of notices of protest to the several endorsers of the note. He states, "that the plaintiff took up the note after his liability was fixed by notice of non-payment, which notice came in same envelope with other notices, and was, as witness thinks, served on the plaintiff by himself."
In answer to the cross-interrogatory by defendant,  [**24]  "Whether the witness had any distinct and positive recollection that he mailed any notices of protest to the endorsers of said note, in the manner and at the time mentioned in his answers, to the direct interrogatories contained in this deposition?" the witness stated "that while he had no doubt that he did mail such notices, he could not say that he distinctly remembered the precise fact." This was competent evidence to be submitted to the jury, whose province it was to determine its weight and credibility, and to pass upon its sufficiency to prove the fact sought to be established.
We find no error in the ruling below on the fifth exception. The facts testified to by the witness were not in any sense 

 [*543]  privileged communications from his clients. No rule is better established than "that communications which a client makes to his legal adviser for the purpose of professional advice or aid shall not be disclosed, unless by the consent of the client for whose protection the rule was established." But as we have said this case does not come within that rule; the facts testified to by Mr. Corwine, were not derived by him from his clients, under the seal and protection of professional [**25]  confidence.
The sixth exception brings before us the prayers of which the plaintiff below offered two that were granted, and the defendant five, all of which were refused except the fifth, which was granted with a modification. We shall first examine the prayers offered by the defendant:--
The first is, that there was no sufficient evidence of notice of non-payment, given to all the endorsers of the note.
The second, that there was not sufficient evidence of such notice to the defendant.
The third, that there was not sufficient evidence of such notice to the plaintiff.
These prayers were properly refused. Even if such notice was necessary to entitle the plaintiff to recover in this case, it may be found in the testimony of the notary and of the cashier, sufficient to be submitted to the jury.
The fourth prayer relates to the notary's name being printed, instead of being written by his own hand, and is presented by the second exception; it was also properly refused.
The fifth prayer, as offered, could not properly be granted, because it ignored entirely the existence of any partnership between the appellant and Linn, of which there was evidence in the cause proper to be submitted [**26]  to the jury, and was based upon the theory, that the relation between them was merely that of principal and agent, which although the jury might find, it was not competent for the court to assume. We think the objections to the court's modification of the fifth prayer are not well founded; it placed the case of the defendant before the 

 [*544]  jury, on the questions of agency and of partnership, on as favorable ground as the law entitled him to. In the argument of the cause the appellant has contended, that the plaintiff's prayers were defective in form, and erroneous in substance. The formal objection is supposed to consist in the assumption by the court of the fact of partnership between Fulton and Linn, and of the endorsement of the note by them, which ought to have been submitted to the jury. The prayers are not very artistically drawn, but as we construe them, those questions of fact were left to the jury. In the first prayer, the jury are left to find that the note was "discounted for the use and benefit of the defendants under the firm name of Fulton and Linn, and that they received the proceeds of said note." This we think is not an assumption by the court of the existence [**27]  of the firm; it left to the jury to find the existence of the firm, which they could not do without finding that a partnership existed.
The first prayer says nothing about the endorsement by Fulton and Linn. But that fact was in no wise material to the proposition contained in the prayer, which was, that the legal result from the facts stated, was that, as between the parties to the suit, the plaintiff was an accommodation endorser, and if so, notice of dishonor to the defendants was unnecessary. We think that the formal objections to the second prayer were also untenable. And from an examination of the authorities cited on both sides, we are of opinion, that the legal propositions contained in both prayers, are sound. The facts stated in the first prayer, if found by the jury, would constitute the plaintiff, as between him and Fulton and Linn, an accommodation endorser, and if so found, then, as between them, Fulton and Linn, would be primarily liable on the note, and no notice to them of the dishonor of the note would be necessary to entitle the plaintiff to recover in this suit. What might be the effect of a want of such notice to the prior endorsers, it is not necessary to say,  [**28]  because that question is not involved in these prayers.

 [*545]  We affirm the rulings of the Superior court in all the exceptions, and affirm the judgment.
Judgment affirmed. 

25 of 196 DOCUMENTS 

GEORGE R. H. LEFFLER, garnishee of JOHN LEVI, vs. JOSEPH ALLARD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 545; 1862 Md. LEXIS 48 

July 9, 1862, Decided 

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

Attachment on warrant, issued October 26th, 1855, at the instance of the appellee, to affect the rights and credits of John Levi, a resident of Texas, and laid in the hands of Leffler, January 4th, 1856. The cause of action, on which the attachment issued, was a carpenter's bill for work done by the plaintiff in repairing a house and premises, belonging to Levi, on Barre street, in Baltimore, a part of which was done under a contract between the parties, dated July 26th, 1855, and the balance for extra work done on the same premises. The contract specifies the work to be done under it, for $ 455, and the bill for extra work amounted to $ 115.59, making, (after deducting a credit of $ 150,) the plaintiff's claim $ 420.59. The garnishee pleaded nulla bona. In answer to the interrogatories he stated, that before the institution of this suit he purchased from R. W. Raisin a mortgage on the premises, to secure a claim of $ 1000, and did not retain any money to pay the plaintiff, but did retain $ 420 of the purchase money, to await the result of the claim of Allard vs. Levi, upon a lien filed against the property, and agreed to pay interest on this [**2]  sum of money until it was paid over; that in case the lien was defeated, the money was to be paid to Raisin, but in case the property was responsible, then to be used by him in clearing off the title, and that he gave an agreement in writing to that effect to Raisin, and that this amount is still in his hands. The case was tried November 14th, 1856.

1st Exception: The plaintiff proved the doing of the work under the contract, (which was produced, and its execution proved,) between him and Levi, and also proved extra carpenter and other work done on the house, as set forth in the bill for extra work, filed with the claim, upon which the attachment issued. The plaintiff then proved by Mr. Seacomb, that he, in company with Wm. Q. Caldwell, went upon the premises and measured certain work pointed out by the plaintiff, and that the work and materials so pointed out and measured, amounted to $ 116.04, as per measurer's bill. The plaintiff offered at the same time to prove that the items in the measurer's bill were the extra work above proved, to which testimony the defendant objected, but the court (MARSHALL, J.) overruled the objection, and to this ruling the defendant excepted.

2nd [**3]  Exception: The plaintiff then proved by another witness, that he, the plaintiff, called upon Levi with a bill, after the work was done, and Levi expressed his satisfaction with the work, and promised to pay the bill in the month of October ensuing. The plaintiff also proved by Watson, that he, witness, was employed by Raisin to do work upon the house of Levi, and Raisin promised to pay his bill as soon as he could raise money upon a mortgage given by Levi to him, for the purpose of raising money to pay off the claims on the property, and finally did pay witness part of his bill, but said he could not pay Allard's bill, because Leffler had retained that amount in his hands to meet Allard's lien, and that witness received a small portion of his bill from Raisin, on the 30th of October 1855. The plaintiff further proved by Baughman, that he was employed by Levi, in Raisin's presence and in Raisin's office, to do certain work upon Levi's house, and that after the completion thereof he called upon Raisin, who promised to pay him as soon as he could raise the money out of a mortgage which Levi had given for the purpose of paying for the work done on the property, Raisin, at the same time,  [**4]  saying, that he had received only $ 175 from Leffler, and that Leffler had retained the amount of Allard's claim, and that he, witness, finally received part of his claim, and part remains unpaid. The plaintiff then offered and read the answers of Leffler to the interrogatories propounded to him, and here closed his case.

The defendant then proved the payment of four tax bills on the property, being State and city taxes for the years 1852 to 1855, inclusive. He then offered in evidence a mortgage of the premises in question and other property, from Levi to Cox, dated July 27th, 1855, to secure the payment of $ 1000, also a mortgage of the same property from Levi to Raisin, dated October 22nd, 1855, to secure the payment of $ 1000, and an assignment of this latter mortgage from Raisin to Leffler, dated October 24th, 1855, for the consideration of $ 1000. The defendant then proved by Moore, that he knew of services rendered by Raisin to Levi, in the selling of $ 16,000 or $ 17,000 worth of Texas lands, and that his commissions were from $ 1600 to $ 1800. The defendant then offered to prove by this witness, that from the conversation between Raisin and Levi, preliminary to the execution [**5]  of the mortgage from Levi to Raisin, he had learned that this mortgage was to be given to secure a portion of this indebtedness. To this offer the plaintiff objected, and the court sustained the objection, and to this ruling the defendant excepted.

3rd Exception: The defendant then proved by Severson, that Levi was to pay Raisin ten per cent. on the sales of said lands, and then offered Raisin as a witness in the cause, but to this the plaintiff objected, on the ground that the counsel for Raisin, in their opening statement, and in reply to a question from the court, had stated that the amount in controversy belonged to Raisin, and that he was directly interested in the result of this suit. The court sustained the objection, unless the witness, on his own voir dire, would say, he had no interest in the result, which the witness declined to do, and to this ruling the defendant excepted.

The verdict was in favor of the plaintiff for $ 446.67, with interest, and from the judgment of condemnation thereon, the garnishee appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Where testimony, offered by the plaintiff, was objected to, but admitted by the court, if the plaintiff did not afterwards avail himself of the decision of the court, but proved the same facts by other evidence, the defendant was not injured by the ruling, even if erroneous.

A plaintiff suing for work, in repairing a house, done under a contract, and also for extra work, having proved the work under the contract, may prove that certain portions of the whole work done was extra work, by a sworn measurer, to whom the work, claimed to be extra work, was pointed out by the plaintiff.

Evidence of conversations between the defendant and a party to whom he had mortgaged the property, to show the consideration for which the mortgage was given, held subsequent to the doing of the work by the plaintiff, and not in his presence, are not admissible in evidence as against him.

Declarations of a party showing that he claimed the funds attached in the hands of the garnishee, are not admissible in evidence as against the plaintiff, nor is such a party a competent witness for the garnishee, because of his interest in the result of the suit.  

COUNSEL:
Jas. Malcolm, for the appellant:

1st. The testimony offered by the plaintiff and set forth in the first exception, was [**6]  inadmissible, because the measurement was made without notice to the appellant, and therefore liable to the objection made, the proof showing, that what was measured was pointed out by the plaintiff, but when and in what part of the house, does not appear, it being certain work, and, to relieve the testimony from this objection, it was offered to prove that the items were extra work, and witnesses having been examined to prove that the work was extra the contract.

2nd. The court erred in rejecting the testimony of Moore, as to what passed at the time of the execution of the mortgage as to the consideration; he was offered to rebut the testimony of witnesses adduced by the plaintiff, to show that it was to pay the debt of Allard. 6 Md. 319, McDowell vs. Goldsmith.

3rd. The testimony of Raisin was admissible to show, that the funds in the garnishee's hands were not the property of the defendant, and, therefore, not liable to condemnation. 2 Smith's Lead. Cases, (5th Ed.,) 76, 115. 6 Eng. C. L. Rep., 466, Ward vs. Wilkinson. 22 Eng. C. L. Rep., 129, Grylls vs. Davies. 52 Eng. C. L. Rep., 535, Hearne vs. Turner. 15 Md. 510, Reynolds vs. Manning & Co., 6 G. & J., 348,  [**7]  Bruce & Fisher vs. Cook. 9 Gill 232, Powles vs. Dilley.

Geo. H. Williams and Orville Horwitz, for the appellee:

1st. The question presented by the three bills of exception in this case, depend more on general principles than on authority. The first exception arises as follows: The plaintiff, in order to maintain his claim against the defendant, proved the performance of all the work sued for, which consisted of certain work done under the contract offered in evidence, and of certain extra work. He then proved by sworn measurers the value of certain work pointed out by himself, appearing to have been done on the premises. Having thus established the performance of certain extra work, and having shown the value of certain work done on the premises, he offered to prove that the work so measured and valued, was the extra work sued for, and so establish conclusively the value of that extra work. To this offer objection was made, and overruled, and exception taken. The ground of the objection it is not easy to understand. It would seem to be proper and necessary to identify the extra work done, as the extra work measured and valued. But it is not necessary to detain the court [**8]  on this proposition, as no advantage was taken of the ruling of the judge, and no evidence offered in accordance therewith. The proof of the correctness of the bill was furnished aliunde.

2nd. The second exception arises as follows: The defendant having proved, by Moore, that Raisin had performed services for him, the defendant then offered to prove by this witness, that, from the conversation between Raisin and Levi, preliminary to the execution of the mortgage from Levi to Raisin, he had learned that the mortgage was to be given to secure a portion of such indebtedness. To this offer objection was made, and the objection sustained. The question, therefore, is, was this offer improperly excluded? In the first place, it is an offer made by the defendant of a conversation between himself and a third party. Can a defendant offer his own conversations in evidence, for the purpose of sustaining his own defence? The work in this case was done in July 1855, and the mortgage, referred to, was dated October 22nd, 1855. If a defendant can defeat a claim originating in July 1855, by offering in evidence his own statements in October following, it would not be difficult to turn any plaintiff [**9]  out of court. See Carson vs. White, 6 Gill 17. Nor was this an offer to give the conversation between Levi and Raisin in evidence, but it was to prove what the witness had gathered from the conversation, his conclusion, and not the statement of what was actually said. The offer, which was preliminary to the execution of the mortgage, was to show that it was to be given for a certain purpose. Non constat, that the purpose was not altered before its execution, and hence the necessity of looking to the mortgage itself. It will be seen that Raisin, himself the mortgagee, had stated to two witnesses, Watson and Baughman, interested in the subject matter of the conversation, that the mortgage "had been given to him by Levi for the purpose of raising money to pay off the claims on the property," and to "pay for the work done on the property," at the same time saying, that Leffler had retained the amount of Allard's claim.

3rd. And this brings us to the consideration of Raisin as a competent witness. Now it appears that the defendant's counsel had stated in the opening, and in reply to a question from the court, that the amount in controversy belonged to Raisin, that he was directly [**10]  interested in the result, and moreover that he, Raisin, refused to say, on his voir dire, that he was not interested in the result, and yet he is offered as a competent witness. That this man, Raisin, is the "head and front" of the whole defence, is manifest from an examination of the evidence. The garnishee denies that he retained the money ($ 420) actually to pay Allard, the plaintiff, but that he retained it to meet Allard's claim, if established, but he says distinctly, that in case Allard's lien was defeated the money was to be paid to Raisin. Now Raisin, it appears, had stated to two of the workmen and claimants, Watson and Baughman, before referred to, that the object of the mortgage to him was, to raise money to pay off the claims due by Levi for work done on the house of Levi. It further appears that Raisin had acted as Levi's agent, had actually, himself, employed Watson to do the work by him done, and that Baughman had been employed by Levi in Raisin's office and presence. For these reasons the mortgage was made by Levi to him, to raise money to pay the debts. It further appears that he did pay Watson and Baughman, out of the moneys received from Leffler, a small part of [**11]  their claims, but as to Allard's claim, there being on record a lien, which might be enforced against the property, Leffler retained the amount necessary to meet it. If defeated, then Raisin was to receive it, under an agreement in writing to that effect. Here then is the actual claimant of the fund in dispute, stated by counsel to be directly interested in the result, and himself refusing, on his voir dire, to deny his interest, offered as a competent witness to defeat the plaintiff. It cannot be that the court erred in refusing to hear him.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
COCHRAN 

OPINION:

 [*551]  COCHRAN, J., delivered the opinion of this court.
The questions presented by this appeal arise on three bills of exceptions taken by the appellant, the 1st, to the ruling of the court for the admission of evidence proposed, but not introduced by the appellee; and the 2nd and 3rd, to its refusal to admit evidence offered by the appellant.
It appears from the record, that the appellee, after offering evidence of the performance of a contract for carpenter's work, made by him with John Levi, and also of other work, then proved that he pointed out [**12]  certain portions of the whole work done, which he claimed to be extra work, to William Q. 

 [*552]  Caldwell, who measured and furnished an account of the items pointed out, and of their value. The appellee then proposed to offer evidence, that the work specified in this account was extra, and not included by the contract. To this offer the appellant objected, and being overruled, he then excepted. The evidence, objected to, does not appear to have been introduced, the appellee having proved, by other witnesses, the admission of Levi, that the account for all the work done was correct, and his promise to pay it. Under these circumstances, the point presented by this exception is immaterial. We think, however, that the appellant's objection was properly overruled, and that the appellee was entitled to prove, at that stage of the case, that the work pointed out by him to the measurer, was extra, and not included in that done under the contract. But even if the ruling of the court was erroneous, the appellant sustained no injury by it, as the appellee yielded to him the practical advantage of his objection, by withholding from the jury the evidence proposed. The appellant took his 2nd [**13]  exception to the refusal of the court to admit the testimony of Moore, to show, from conversations between Levi and R. W. Raisin, the consideration for which Levi executed the mortgage to Raisin, afterwards assigned by Raisin to the appellant. We think there was no error in refusing to admit this evidence. The conversations between Levi and Raisin were subsequent to the performance of the work by the appellee, and not in his presence. The declarations of Levi, in these conversations, were certainly not admissible to defeat the appellee's claim; and those of Raisin, showing that he claimed the fund attached in the hands of the appellant, are not less objectionable on the ground of interest in the result of the suit. For the same reason the testimony of Raisin, the refusal to admit which constitutes the ground of the 3rd exception, was properly rejected. In our opinion there was no error in any of the rulings of the court, to which these exceptions were taken, and the judgment will therefore be affirmed.
Judgment affirmed. 

26 of 196 DOCUMENTS 

FARMERS and MECHANICS BANK OF CARROLL COUNTY, vs. GEORGE W. ALLEN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 475; 1862 Md. LEXIS 37 

June 28, 1862, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Carroll County.

Action brought, August 3rd, 1858, by the appellants, as holders, against the appellee, as endorser, of a promissory note, for $ 300, dated December 8th, 1857, drawn by Jesse Hollingsworth, payable at four months, to the order of the defendant, and by him endorsed. Plea, no promise as alleged.

Exception: The plaintiff offered in evidence the note sued on, the handwritings of the drawer and endorser being admitted, and further to maintain the issue joined, offered in evidence the protest of the note, which states that presentment and demand of payment were made, "at The Farmers and Mechanics Bank of Carroll County," and in reference to notice, says: "and on the same day I made out written notices of protest for Jesse Hollingsworth and G. W. Allen, North Branch, Baltimore county, Maryland, and put them in the post office at Westminster, Carroll county, Maryland." The defendant objected to the admissibility in evidence of this protest, and the court (NELSON, J.) sustained the objection. To this ruling the plaintiff excepted, and the verdict and judgment being in favor of the defendant, appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A protest stating an insufficient demand, but also stating that "notice of protest" was sent to the endorser, is not admissible to prove notice, not being accompanied with any offer to prove by other evidence, that a sufficient demand was made, or that the defendant agreed the demand should be made as stated in the protest.

A demand made, not on the maker, but at a bank, though the note was not payable there, is wholly insufficient to bind the endorser. 

COUNSEL:
Oliver [**2]  Miller, for the appellant.--The offer of the protest was general for the purpose of maintaining the issue joined. If admissible for any purpose it was error to reject it. It states that, "notice of protest" was sent to the endorser, and of this, however defective it may be in other respects, the protest is prima facie evidence--expressly made so by the Act of 1837, ch. 253, sec. 2. 14 Md. 320, Ricketts, et al., vs. Pendleton. Notice was necessary to be proved in order to entitle the plaintiff to recover. It was also essential in this case to prove a personal demand on the maker, or some agreement on the part of the endorser dispensing therewith. The protest is obviously defective in so far as it states a demand; but this does not deprive the plaintiff of the right to offer it for the purpose of proving notice. If the plaintiff had begun its proof by showing an agreement between the endorser and the bank, that the demand should be made in the manner and at the place stated in the protest, there can be no doubt the protest would have been admissible to prove both demand and notice. But it is well established, that the order of proof is entirely in the discretion of the party offering [**3]  it. A plaintiff must make out his case, but may commence with any part of his evidence, and if any item of proof is admissible to support his right to recover, it is error to reject it. 9 G. & J., 477, Caton vs. Carter. In the case of Plank Road Co., vs. Bruce, 6 Md. 457, a suit against a subscriber for stock, the plaintiffs offered in evidence the subscription list, containing the defendant's name, and would not say they would give any other evidence, and it was held that this testimony being legal and competent, the court below had no right to require as a condition, upon which it was to be received, that the plaintiffs should disclose in advance what other evidence they intended to offer, that in proving his case the plaintiff is not confined to any particular order in which to offer his evidence, if it be legal and material to the issue, it must be received without reference to the order in which it is introduced. This reasoning is peculiarly applicable here. There it was essential to the plaintiffs' recovery, that they should not only prove the defendant's subscription to their capital stock, but also their charter, their authority to contract, their right to sue, their legal [**4]  corporate existence, and this naturally would have been the first thing to be done, but the court held they could invert this order and establish a fact material to the issue, without even stating that they intended to follow it up with proof of other facts equally essential to their right to recover. So in the present case, we could prove notice of protest to the endorser, before proving demand on the maker, both being facts essential to our right to recover. We could prove notice by the notarial certificate, and demand or waiver of demand, or an agreement that it should be made at a particular place, or in a particular manner, by other competent and legal evidence. The fact that we did not first prove such demand, is no reason why we should be denied the privilege of proving notice of protest.

Jos. M. Palmer, for the appellee:--The protest is defective, inasmuch as it does not state a sufficient demand, and notice of such a protest is equally useless and nugatory. If the notary did not make a legal and proper demand before he made the protest, notice to the endorser of an illegal and improper protest, cannot tend to fix his liability. It is said if the protest was admissible [**5]  for any purpose, it was error to reject it--be it so, but I insist, it was not evidence for any purpose. It is said it states that notice of protest was sent to the endorser. Notice of what protest? Notice only of a defective protest. The sufficiency in law of the demand and notice, as evidenced by the notarial certificate, to charge the defendant, must be determined by the court. 14 Md. 320, Ricketts, et al., vs. Pendleton. It is said that where the notary in his protest states, that notice of the protest was sent to the endorser, and the manner of such notice, it implies a demand and refusal to pay, but this presumption does not arise where the protest itself shows that no sufficient demand and refusal had taken place. 3 Md. 257, Nailor vs. Bowie. See, also, 3 Kent, 115, 120; Story on Prom. Notes, secs. 226, 251; 1 Md. 66, Graham vs. Sangston; 3 Md. 202, Boehme vs. Carr; 6 Md. 5, Maning & Co., vs. Hays; 1 Md. 511, Hunter vs. Van Bomhorst; 15 Md. 231, Weems vs. Farmers Bank; 3 Denio, 145, Taylor vs. Snyder. The ruling of the court, refusing to admit the protest in evidence, did not prevent the plaintiff from offering any other legal and competent evidence [**6]  to prove its case.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*478]  BARTOL, J., delivered the opinion of this court.
This is a suit to recover from the appellee, as endorser of a promissory note. To fix his liability, demand on the drawer, and non-payment, and notice to the defendant, of those facts, were necessary to be proved.
The plaintiff, to support the action, after offering the note, the handwriting of the drawer and endorser being admitted, proceeded to offer in evidence the protest of the notary, containing, after setting out a demand, and non-payment, the statement, that "on the same day he (the notary) made out written notices of protest, for," &c., "and put them in the post office," &c.
On motion of the defendant the court refused to admit the evidence, and the plaintiff's exception to that ruling constitutes the only exception in the case.

 [*479]  The demand of payment made by the notary, as stated in the protest, was wholly insufficient; it was not made on the drawer, but at the bank at Westminster, although it is not pretended the note was payable at that place. It was conceded at the bar, by the appellant's [**7]  counsel, that the protest was not admissible evidence of a demand on the drawer, and nonpayment by him, to bind the defendant, but he argued that it ought to have been received as evidence of notice. But the answer to this view, as presented in the appellee's argument, and a reference to the authorities there cited, (particularly the cases of Graham vs. Sangston, and Nailor vs. Bowie,) is conclusive of the case. The only evidence of a notice to the endorser furnished by the notary's certificate, was notice that an insufficient demand had been made by him. That, of itself, could not bind the defendant, and the evidence was properly excluded. If the plaintiff had accompanied his offer with a proposal to follow with other evidence to prove, either that a sufficient demand was made on the defendant, or that it had been agreed, by the parties, that the demand should be made at the bank, the question before us might be decided differently. But no such offer was made, and we cannot speculate on the subject: the admissibility of the evidence is to be determined per se, and so considered, it was inadmissible
Judgment affirmed. 

27 of 196 DOCUMENTS 

ROBERT HOWARD, vs. THE FIRST INDEPENDENT CHURCH OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 451; 1862 Md. LEXIS 33 

June 27, 1862, Decided 

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

Action, brought May 1857, by the appellee against the appellant, to recover $ 300.29, upon the following contract, the execution of which by the defendant was admitted.

"In consideration that the trustees of the First Independent Church of Baltimore, in the City of Baltimore, who own a burial ground on Belle Air Avenue, will sign the petition, now in circulation, to the city commissioner, to pave said avenue, I hereby bind myself to pay to said trustees any excess over one dollar and fifteen cents per front foot, which said paving may cost, whenever the said trustees shall be called on for the payment of said paving by the proper party. Given under my hand and seal this 12th day of August 1850.

ROB. HOWARD,   (Seal.)"

Issue was joined on the plea of never indebted as alleged, and it was agreed that all errors in pleading should be waived, and all questions be raised which could be presented if specially pleaded. Several exceptions were taken by the defendant to the rulings of the court, (MARSHALL, J.,) admitting testimony, which need not be stated. It was admitted that the plaintiff, by its register, signed the petition referred [**2]  to in the above contract, but the proof shows, or tends to show, that this application, though laid before the city commissioner and filed in his office, was never acted on by that officer, nor was the paving done under it, but under another and distinct application for grading and paving made in 1853, by owners of a majority of front feet, which the plaintiff did not sign. The plaintiff after due demand by the proper authorities in 1855, paid a paving tax on its property fronting on this avenue for grading and paving the same, amounting to $ 571.69, making $ 300.29, over and above $ 1.15 per front foot. The plaintiff offered two prayers, the first of which asserts its right to recover this excess if the jury find that the plaintiff, in consequence of the agreement contained in the contract, signed the petition therein referred to, that this petition was subsequently filed in the office of the city commissioner, that the avenue was subsequently paved, that the plaintiff was called on by the Mayor and City Council to pay and paid the tax bill therefor, offered in evidence, and provided they also find that the petition so signed by the plaintiff, was on file in the office of the commissioner [**3]  at the time when he decided upon the paving of this avenue. The second asserts the plaintiff's right to recover upon the facts stated in the first prayer, if found by the jury, though they may find that the tax for paving which the plaintiff paid, included the cost of grading as well as paving the avenue.

The defendant asked the court to instruct the jury, that if they find from the evidence, that the paving was done under an application for paving and grading, subsequent to the one referred to in the contract sued on, then the plaintiff is not entitled to recover, unless the jury shall further find from the evidence, that the application signed by the plaintiff was used for the purpose of procuring the paving to be done, and was actually so used under the application of 1853, offered in evidence.

The court granted the plaintiff's prayers, and rejected that of the defendant, who excepted to this ruling, and the verdict and judgment being against him, appealed.  

DISPOSITION:
Judgment reversed without procedendo.  

HEADNOTES:

The system of grading and paving streets, established by the ordinances of the city of Baltimore, is authorized by law, and no constitutional objection exists to the power conferred on the owners of a majority of front feet, of imposing a tax for such purposes on the property of the other owners, against their will.

But the intention of the law is, that the application by the majority-owners shall be made in good faith, and any arrangement or combination among parties applying, whereby a few, who wish the work to be done, procure the signatures of others, by paying them therefor, either directly or indirectly, is a fraud upon the law, and contrary to public policy.

By contract the defendant, in consideration that the plaintiff would "sign the petition now in circulation" for the paving of a street, agreed to pay the plaintiff any excess over $ 1.15 per front foot on his property, which such paving may cost, "whenever the plaintiff shall be called on by the proper party" to pay the same; HELD:

That no obligation can arise under this contract, unless the grading and paving was actually done in consequence of the application therein spoken of: and it appearing that the paving was done under and in consequence of another application two years after, not signed by the plaintiff, he is not entitled to recover.  

COUNSEL:
Jas. Malcolm, for the appellant:--It is sufficient for the reversal of this judgment to say, that the defendant's prayer contains the true construction of the agreement sued [**4]  on, and should have been granted.

Stewart Brown, for the appellee:--Under the instruction granted, the jury must have found from the evidence in the cause, the execution of the contract, the signing by the church of the petition therein referred to, the subsequent paving of the avenue, and the demand for payment of the paving tax by the proper party, and the payment thereof by the church, and that the petition so signed, was on file in the office of the city commissioner, when that officer determined to pave. This was all that was necessary in order to entitle the church to recover. The contract is clear and binding. It is under seal, importing a consideration. The church performed all the stipulations required on its part, and is entitled to rely upon the performance of his part by the appellant. The church, using its property on the avenue for a particular purpose, (as a burial ground,) does not appear to have anticipated or derived any advantage from this paving. But the appellant owning a larger amount of property on the avenue, consulting, no doubt, his own interest, induced the church to sign the petition referred to in the contract, and agreed, in consideration of such [**5]  signing, to pay whatever sum the church might be called on to pay for the paving, exceeding the stipulated sum per foot, and "whenever" the church should be called on for payment. The appellant seeks to get rid of this obligation by alleging that the paving was ordered and done under a subsequent petition, signed by a majority of the owners, in which the church did not unite. But the contract contains no condition that the particular petition therein referred to, should be signed by a majority of owners, nor does it imply that the paving should be done exclusively under this application. There might have been one or many petitions according to the pleasure of the proprietors, and when a sufficient number of signers on all the petitions on file had been obtained, the work would proceed. This is what really occurred. The petition of 1850, was filed in the office of the commissioner, was never withdrawn by the church, was seen there a short time before the paving was ordered, and was in fact doubtless, as the jury found, there on file at the very time when the commissioner determined to pave. The appellant, indeed, and others, signed new petitions, which the church was never asked to [**6]  sign, and was ignorant of, and his object in ignoring the church's petition may have been to get rid of his obligation under the contract. The influence of the church's name had been secured, and all opposition on its part had been silenced by the contract, which it held and now relies on. According to the view taken by the appellant, he would not have been responsible under the contract, provided another petition signed by a majority of owners, could have been procured the day after he executed his contract, and the paving done under such application, while the church did not even bind itself to present the petition to the commissioner, but performed its part of the agreement by simply signing its name thereto. The church never agreed that the petition signed by it should be used for the purpose of procuring the paving, to be done under any subsequent application that might be made, it was not required in the contract, nor was it even bound to present the petition, but in point of fact the petition was on file before the commissioner in 1853, and his duty required him to consider it in his action on the matter, whether used before him by interested parties or not. Rev. Ord. of 1850,  [**7]  No. 15, secs. 1, 2, 5, 11.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*455]  BARTOL, J., delivered the opinion of this court.
By the existing system, established by the Acts of Assembly and the Ordinances of the city of Baltimore, regulating the grading and paving of streets, it is made a necessary preliminary to any action by the city authorities, that the owners of a majority of feet fronting on the street, (or the part of it proposed to be graded and paved,) shall unite in an application to the city commissioner to have the work done, and on such application the city commissioner is authorized to have the work done, although the other proprietors may not assent. The effect of this system is, to enable individual owners to set on foot measures, which will result in imposing burdens upon the property of others against their will.
In the cases of Steuart, vs. M. & C. C. of Balt., 7 Md. 500, and Henderson, vs. M. & C. C. of Balt., 8 Md. 352, the constitutionality of these laws and ordinances was discussed; but it was held by the Court of Appeals that it was competent for the city of Baltimore,  [**8]  under the Acts of Assembly, to establish the system, and that no constitutional 

 [*456]  objection exists to the provisions of the Ordinance, No. 15, of 1850, which confer upon the owners of a majority of front feet, the power of imposing a burden, or tax, for a public improvement, on the property of other owners against their will. It is manifest, however, that the intention of the law is, that the application shall be made in good faith, that is, by persons who actually assume their share of the burden, and that any arrangement or combination among the parties applying, whereby a few individuals, desirous of causing the grading and paving to be done, procure the signatures of others to the application, by paying them a consideration therefor, either directly or indirectly, is a fraud on the law, and contrary to public policy; and we entertain very great doubt whether any action can be maintained on such a contract, as that sued on in this case.
In the argument of the cause, however, this point was not urged by the appellant, and does not appear to have been made at the trial below. Considering the agreement sued on (for the purposes of this case) as a valid contract, we are of [**9]  opinion that, according to its true intent and construction, no obligation of the defendant could arise under it, unless it appeared that the grading and paving of the avenue was actually done, in consequence of the application spoken of in the agreement. The evidence in the bills of exception shows that this was not the case. The application signed under the agreement, was dated in 1850, was laid before the commissioner without effect, no action was taken upon it by the commissioner, nor was the grading and paving done under it. Afterwards, in 1853, another and distinct application was made by owners of a majority of front feet, under, and in consequence of which, the work was done; this application was not signed by the plaintiff, nor has the agreement sued on any reference to it whatever.
According to our construction of the agreement, the defendant's prayer ought to have been granted, and upon the facts of the case conceded in the argument, this would be fatal to any recovery by the plaintiff in the action, even if the contract were valid.

 [*457]  The court below erred in granting the plaintiff's prayers, and in refusing that of the defendant.
Judgment reversed without  [**10]   procedendo. 

28 of 196 DOCUMENTS 

GOLDSBOROUGH S. GRIFFITH, vs. MARGARET C. CLARKE, by prochein ami.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 457; 1862 Md. LEXIS 34 

June 27, 1862, Decided 

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

Bill filed, September 9th, 1858, by the appellee against the appellant and others, charging that the complainant had property settled to her separate use, derived from her father's will; that she is a married woman, and, in the absence of her husband, George B. Clarke, had been induced, by the fraudulent representations of one Lane, his partner, to sign certain notes, her husband being joint maker with her therein; one of which, for $ 500, found its way in the hands of the defendant, Griffith; and that a suit at law was instituted by him upon it May 26th, 1857, against her and her husband, as joint makers, and judgment by default rendered May 12th, 1858, against both; that she never heard of this suit until a day or two before filing this bill, and had never been served with process; that on this judgment a fi. fa. was issued and levied upon a part of her separate property; that it was not competent for Griffith to sue her at law, and she had a full defence in equity, as the note was obtained from her improperly, and the proceeds never applied for her benefit, and she had not, in any way, made her separate estate liable therefor;  [**2]  nor was it so liable; that the sheriff was about to sell her property under the fi. fa., and if permitted to do so, her damage would be great and irreparable. The bill prays for an injunction to restrain such sale, which was issued.

Griffith answered, admitting that the complainant was a feme covert, and was entitled to the equitable interest in the property levied on, the legal estate in which was in trustees, but insists, that it was subject to her full and absolute power of disposition, to the same effect as if she were a feme sole. He denies all allegation of fraud in obtaining the note; denies the allegation that process was not served upon her; but even if it was true, and the sheriff made a false return as to her, the proper remedy was an action against him; denies that she was ignorant of the suit, and avers, that during its pendency, and after the judgment, he had frequent conversations with her about it, and she made repeated promises to him to pay it, and said that she considered it a debt of honor; that he took the note without suspicion, relying exclusively upon her well known responsibility, and having suffered judgment by default, she is not entitled to an injunction,  [**3]  (a remedy, not of right, but in the discretion of the court,) to shield her from paying an honest obligation which the court, as a court of equity, would have directed her to pay; that she signed the note for the express purpose of making her separate estate liable, and whether she got any benefit from it or not, does not affect the responsibility of her property thereunder.

By the deed of settlement, dated April 24th, 1851, the property (real and leasehold) was conveyed to trustees, "in trust for the sole and separate use of the said Margaret C. Clarke, for the term of her natural life, so that she be permitted to collect and receive the rents and profits thereof to her own use, without the let or control of her present or any future husband whom she may have, with full power and authority to her, whether sole or covert, to sell or dispose of" the same "by any instrument of writing in the nature of a will or a deed;" and if she died without having made disposition thereof, then, in trust "for the use and benefit of such person or persons as would be her heirs-at-law of real estate, according to the laws of Maryland." The note, on which the judgment was rendered, is a simple negotiable [**4]  promissory note, for $ 500, dated December 23rd, 1853, payable at five months, "to the order of Clarke, Lane & Co., value received," and signed by Margaret Clarke and George B. Clarke.

The motion to dissolve was set down for hearing October 8th, 1858, but afterwards, by agreement, a commission was issued, and testimony (which need not be stated) taken and returned, and on the 21st of April 1860, the cause was, by agreement, submitted for final decree, and the court (KREBS, J.) passed an order, December 1st, 1840, continuing the injunction, being of opinion that the defendant, Griffith, cannot proceed to obtain satisfaction of his claim upon this note, by the proceedings instituted at law, as neither Mrs. Clarke, nor her separate estate, can be made liable at law for the satisfaction of such a contract, but reserving for further consideration the question, whether the separate estate vested in her, by the deed of trust, can be made liable in equity, under these proceedings, for the satisfaction of said note. From this order Griffith appealed, and a motion to dismiss was made by the appellee in this court.  

DISPOSITION:
Order affirmed and cause remanded.  

HEADNOTES:

Case set down for hearing on motion to dissolve: -- afterwards a commission issued by agreement, under which testimony was taken and returned, and the case was then, by agreement, set down for final decree, and thereupon the court passed an order continuing the injunction, and reserving other questions for further consideration. HELD: that an appeal lies from this order.

A promissory note signed by a feme covert, cannot be enforced against her by any proceeding at law: a judgment, by default, against her, when sued at law, on such a note, is a nullity, and enforcement of it against her separate estate may be restrained, in equity, by injunction.

The principle, that a party cannot impeach a judgment on any ground which might have been pleaded or relied on, as a defence to the suit, does not apply to a case where the defendant is a feme covert, and not sui juris. 

COUNSEL:
John H. Thomas, for the appellant.  [**5]  

1st. The order was the proper subject of an appeal, inasmuch as it determined the appellant had no right to the fruits of his judgment at law, and only left open the question, whether he was entitled to any other measure of relief or not. An appeal is expressly allowed from an order granting an injunction, and a fortiori will it lie from an order continuing one. The orders which have been considered interlocutory, determined no question of right, such for example, as referring a case to the auditor with directions to state an account on which the court intended to determine some right in future. The Act of 1835, ch. 380, sec. 3, and the Code, Art. 5, sec. 21, settle conclusively the right of appeal in this case.

2nd. From the evidence, and the return "summoned," there can be no doubt the writ, in the action at law, was duly served on the appellee. But the case was submitted on bill and answer, without replication, and in such a case, the averments of the answer, alleging the writ was served, are to be taken as true. 3 Md. 505, Ware vs. Richardson. 4 Md. 124, Mason vs. Martin.

3rd. The appellee cannot impeach the judgment on the ground of coverture, or any other [**6]  which could have been used as a defence at law. She not only had notice of the suit at law, and all the proceedings in it, but permitted several terms to elapse without using the defences, or taking any steps which would have availed her at law, and she is, therefore, estopped from asking the aid of a court of equity. Equity will not restrain execution on a judgment at law in any case, unless it would be inequitable, unconscientious and unjust, to allow it to be enforced, and the complainant had no opportunity of making the defence at law. 10 G. & J., 362, Fowler vs. Lee. 2 Md. 320, Brumbaugh vs. Schnebly. Equity and good conscience certainly did not entitle the appellee to be relieved from payment of a note to indemnify her for which she had received an assignment of property. In Rridges vs. McKenna, 14 Md. 258, the effort was to make the wife's earnings, secured to her by Act of Assembly, responsible for her husband's debts, for which she had incurred no responsibility.

4th. If the appellant had sought the aid of equity to incumber the appellee's property, proof of her intent to produce that result, would have been necessary. But even in such a case it may be found elsewhere [**7]  than in the note. The fact of her promising to sell her separate property to pay the note, and having no other means of doing so, would be evidence of such intent, and the court would enforce it. 16 Md. 550, Koontz vs. Nabb. Permitting judgment to be rendered against her, was a mode of binding her equitable estate. Code, Art. 83, sec. 1. She had a right to dispose of it by deed or will. An incumbrance by judgment will not be restrained. 7 H. & J., 318, Price vs. Bigham. 1 G. & J., 228, Tiernan vs. Poor. No one else had any interest in the property, except such as she chose to leave as her heirs. In no such case has an incumbrance, however created by the party beneficially entitled, been interfered with by a court of equity. The sole object of the deed was to protect her against involuntary liability for her husband's debts, not against such as she chose, for a satisfactory consideration, to assume.

Thos. B. Shipley and Geo. H. Williams for the appellee:

The appeal should be dismissed. The case was submitted for final decree, which was a withdrawal of the motion to dissolve, and until final decree settling some right, there was nothing from which an appeal could be taken:  [**8]  --the order merely continued the injunction, settled no right and reserved other matters for the further consideration of the court. 6 H. & J., 114, Snowden vs. Dorsey. 1 G. & J., 308, Hagthorp vs. Hook. 3 G. & J., 426, Roberts vs. Salisbury. But the order should also be affirmed on the merits, because:--

1st. The action at law being founded on a pretended contract made by the appellee while covert, she could not be joined as a defendant, and the judgment was a nullity as to her. 2 Roper on Hus. & Wife, 126. 2 Bright on Hus. & Wife, 79. All covenants and agreements of a feme covert, (except in regard to her separate property,) are null and void at law, as she cannot be compelled to perform them whether entered into by herself or on her behalf by her husband, with or without her consent;--all legal proceedings to enforce such, are fruitless and illegal, (4 Gill 487, Burton vs. Marshall; 21 Barb. 549, Coon vs. Brook; 3 Whart., 309, Dorrance vs. Scott; 6 Ala., 737, Vance vs. Wells,) and she is only compelled to perform them in equity when the obligation sought to be enforced, presents upon its face evidence of her intent to charge her estate, or there be evidence of such intent [**9]  aliunde. 16 Md. 554, Koontz vs. Nabb. 83 Eng. C. L. Rep., 262, Neve vs. Hollands.

2nd. A married woman has no power over her separate estate, but what is specially given, and this must be exercised only in the mode prescribed, if it be prescribed. 4 Md. Ch. Dec., 68, Tarr vs. Williams. 5 Md. 220, Miller & Mayhew vs. Williamson. 4 Md. Ch. Dec., 417, Williams vs. Donaldson. 65 Law Lib., 370, et seq. 11 Md. Rep. 492, Cooke vs. Husbands. This deed of trust settles the property upon the wife for certain purposes, and prescribes the mode in which she may dispose of it, and she can dispose of it in no other way.

3rd. A married woman cannot appear by attorney, but the husband appoints an attorney when they are jointly sued. 1 Arch. Pr., 25. If, as here, the husband neglects or refuses, equity cannot refuse to throw around the wife protection from that which she could not prevent. She had no standing in the court of law to plead to the nar., nor to move to strike out the judgment, nor to sue the sheriff for a false return, independent of the will of her husband, who it is to be assumed in this case suffered judgment by default, that his debts might be paid out of her property.  [**10]  

4th. The separate estate of a married woman can only be sold under a judgment or decree against rem ipsam, and if at suit of a creditor it must be founded on her own contract charging the estate, or for the benefit of the estate.

5th. The remedy here was properly sought, because, whatever appertains to the separate property of a married woman has always been a peculiar subject of the jurisdiction of courts of equity. 14 Md. 258, Bridges & Woods vs. McKenna.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*463]  BARTOL, J., delivered the opinion of this court.
In this case the motion to dissolve the injunction was set down for hearing on the 8th day of October 1858; afterwards, by agreement of the solicitors, a commission to take testimony was issued, which was returned, and on the 21st day of April 1860, the cause was, by agreement, set down for final decree. Whereupon the Circuit court, on the 1st day of December 1860, passed an order continuing the injunction, and reserving for further consideration the question, "whether the separate estate of the complainant can be made liable in equity, under these proceedings, for the [**11]  satisfaction of the promissory note" held by the appellant, Griffith. From that order this appeal was taken, and the appellee has moved this court to dismiss this appeal, because no final decree has been passed settling the rights of the parties.
In the opinion of this court, the motion ought to be overruled and the appeal retained.
By the Acts of 1835, ch. 346, and ch. 380, an appeal is allowed from an order refusing to dissolve an injunction. (See Code, Art. 5, sec. 21.) This right, granted in express terms, is not defeated because the case had been set down for final hearing, and other questions were reserved for further consideration by the Circuit court.
We concur with the judge of the Circuit court in the propriety of refusing to dissolve the injunction. The promissory note, signed by Mrs. Clarke, could not be enforced against her by any proceedings at law. It is immaterial for us to inquire, whether she was ever actually summoned by the sheriff or not; the judgment entered against her by default was a nullity, and can no more be enforced against her at law than the note sued on.
The principle, that a party cannot impeach a judgment on 

 [*464]  any ground which [**12]  might have been pleaded or relied upon as a defence to the suit, does not apply to a case like this, where the defendant is a feme covert, and not sui juris.
Persons in the condition of the appellee are not competent to employ an attorney. If she had appeared in the suit at law by attorney employed by her husband, and her coverture had been pleaded in defence to the action, the court would have allowed the plea. But the question here is, whether the defendant, being sued at law on a personal contract, altogether void at law, is to be prejudiced by the entry of a judgment by default against her, for non-appearance? In our opinion, such a judgment is, at law, merely void, and was properly enjoined by the Circuit court.
In support of these conclusions, it is sufficient to refer to the authorities cited by the appellee's counsel under the first and second points of their argument.
We affirm the order of the Circuit court refusing to dissolve the injunction, and forbear to express any opinion on the question reserved by that court for future consideration.
Order affirmed and cause remanded. 

29 of 196 DOCUMENTS 

WILLIAM STIRLING and others, vs. WILLIAM GARRITEE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 468; 1862 Md. LEXIS 36 

June 27, 1862, Decided 

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

Action, brought September 8th, 1857, by the appellee against the appellants, "for that the defendants converted to their own use, or wrongfully deprived the plaintiff of the use and possession of the plaintiff's goods, that is to say, bricks, brick-kilns, wood, joists, rafters, and boards, And the plaintiff claims a re turn of said goods, or their value, and $ 1500 for their detention." Plea, that the defendants did not commit the wrong alleged; verdict in favor of plaintiff for $ 475 damages, and motion in arrest upon the ground, among others, of the insufficiency of the declaration; motion overruled by the court, (LEE, J.) and appeal by defendants from the judgment on the verdict.  

DISPOSITION:
Judgment arrested.  

HEADNOTES:

Declaration under the new system of pleading, "for that the defendant converted to his own use, or wrongfully deprived the plaintiff of the use and possession of" his goods, (specifying them,) "and the plaintiff claims a return of said goods, or their value, and $ 1500 for their detention." Verdict for plaintiff for $ 475, damages. On motion in arrest, HELD:

That this declaration is in the nature either of trover or detinue, and the judgment must be arrested: if in trover, because no damages are laid for the injury complained of, the damages claimed being for the detention, and not for the conversion of the goods: if in detinue, because the verdict does not ascertain their value.

The purpose of the Act of 1856, ch. 112, was to simplify the forms of pleading and practice, and while it classifies and provides forms for actions of contract and tort, yet the distinctive nature of actions still remains, though the old forms have been abolished and new ones adopted.

The substantial principles underlying our system of jurisprudence, and, to some extent, governing the forms of action, must still be recognized, however the new form may be changed or simplified.

The measure of damages in trover, is the value of the goods at the time of conversion, and when the plaintiff obtains this value, it operates as a transfer of the title from the time of the conversion.

Where a declaration seeks, in addition to legitimate damages, other damages which the form of action does not permit, and damages are assessed generally by the verdict, the judgment must be arrested.

There must be a reasonable certainty in every judgment, that the defendant may be enabled to plead it in bar of any subsequent suit for the same cause of action. 

COUNSEL:
A. W. Machen for the appellants.

The body of this declaration is a literal copy of form 29, given in the Act of 1856, ch. 112. The conclusion which determines the character of the action is in the form prescribed by that Act, (as well as by the English common law procedure Act, from which all our forms for declarations are copied verbatim,) for the case where "the action is brought to recover specific goods." It is to be [**2]  noted, also, that while this Act says certain forms of declarations and pleas may be used, says that, "every declaration shall conclude as follows, or to the like effect." Considering this declaration, as in replevin, a verdict upon it cannot be supported for want of a proper writ. 6 Md. 1, Booth vs. Hall. The writ and declaration, however, are applicable to detinue--an action which certainly exists still in Maryland, though neglected in practice. 1 Harr. Ent., 652, 654. 2 Harr. Ent., 200, 201. See, also, 1 Hurls. & Nor., 572, Allan vs. Dunn, where a count, almost word for word like this declaration, was used and received as a count in detinue. To take the declaration as counting in detinue, is the only construction that can be suggested which makes it good as it stands, and, therefore, the party pleading it cannot insist upon any other. 57 Eng. C. L. Rep., 220, Moore vs. Forster. It is insisted, therefore:--

1st. Regarding this as a declaration in detinue, claiming a recovery of specific chattels, it is clear, the judgment ought to have been arrested, for the verdict and judgment are erroneous in not ascertaining, or giving any means of ascertaining, the value of the property.  [**3]  69 Eng. C. L. Rep., 859, Phillips vs. Jones. 10 Coke, 119, b., Cheyney's Case. 1 Tidd., 574. 2 Tidd., 887. The plaintiff has a right to recover the very goods, if they can be obtained; for which reason, payment into court, in satisfaction of their value, cannot be pleaded by the defendant; and e converso, the defendant has a right to retain the goods under the judgment, instead of paying their value.

2nd. But even if it were consistent with the rules of pleading to construe it as a declaration in trover, the judgment could not be supported, 1st. For, under such a construction, no damages are laid for the injury complained of. In this view, the plaintiff alleges a conversion, for which he would be entitled to recover the worth of the things converted; and he asks damages, not for that, but for a detention of the property. The effect is the same as if he had asked no damages at all--a vice which is clearly not cured by verdict. 2 H. & J., 350, Faget vs. Brayton. The rule is not technical, but belongs to every mode of remedy, that the plaintiff is not entitled to recover what he does not ask. It is not possible to reject the claim of a return of the goods and that qualification of [**4]  the claim of damages, which limits it to damages for the detention; for such a rejection of essential words would far exceed any justifiable latitude of construction. In proportion to the brevity of these statutory forms, is their fullness of meaning. Such an emasculation of the form of conclusion employed here, would amount to an obliteration of the cardinal distinction which the statute takes pains to draw. The clause would be made to mean, exactly what the Legislature have declared that it shall not mean. An allegation that is material can never be surplussage. 73 Eng. C. L. Rep., 139, Aldis vs. Mason. The statement, that the damages sought are for the detention of the goods, and are incident to a return of the property, is no more capable of being treated as surplussage, than the statement of the amount of damages. As the conclusion stands, in its entirety, they both are equally material parts of it. 2nd. The damages, which the declaration does claim, are not recoverable in trover. The plaintiff asks, in addition to the value of the property, damages for the detention of it. The measure of damages, in trover, is the value of the goods at the time of conversion. 5 H. & J., 211,  [**5]  Hepburn vs. Sewell. Obtaining compensation for the thing itself, (which operates as a sale of it from the date of the conversion,) the plaintiff cannot also have the value of the usufruct. 5 H. & J., 212. But it is settled, that where a declaration seeks, in addition to legitimate damages, other damages which are not proper to be recovered, and the jury assess damages generally, the judgment must be arrested. 2 Wms. Saund., 169, 171, Hambleton vs. Veere. This is universally true where the declaration contains but one count. The only operation of the Act of 1809, ch. 153, sec. 2, (Code, Art. 75, sec. 8,) is to prevent the failure of a verdict rendered on one good count, by reason of its also embracing a bad one. 1 Gill 52, Gordon vs. Downey. The rule, fortius contra proferentem, is not affected by the modern change in the system of pleading, but is still against the party pleading. 4 Ellis & Black., 933, Gould vs. Webb. The result is, if the declaration is good, the verdict is wrong; and if there is no error in the verdict the declaration must be bad.

3rd. If it was uncertain, upon the face of the declaration, what case the plaintiff was going for, or if there be now, upon [**6]  the whole record, any uncertainty as to the scope of the judgment, this itself is a reason for a repleader. There must be such reasonable certainty in every judgment, that there may be no doubt what is decided, and that the party may be able to plead it. 8 G. & J., 385, Boteler, et al, vs. The State. A judgment in detinue does not change the property. 5 B. Munroe, 5, Sharp vs. Gray. A judgment in trover, when satisfied, operates a change of ownership from the date of the act of conversion. Would the property in these bricks be changed if this judgment was satisfied? Payment of damages for the detention of them, which is what the plaintiff asked, would have no such consequence, and the defendants might still be sued in trover. Yet, it cannot be doubted that this would be most unjust. The jury were misled, and the plaintiff being alone responsible for the ambiguity, the defendants ought not to suffer from it. A repleader will give an opportunity of doing justice to all parties.

Benj. F. Horwitz, for the appellee:--The declaration is sufficient and almost in the precise language of form 29, of the Act of 1856, ch. 112. It is a declaration in trover, and contains all the ingredients [**7]  of a declaration in such an action. Trover lies not only to recover the value of the thing at the time of conversion, but also damages for the conversion from the time of conversion to suit brought. 2 Md. 261, Buel vs. Pumphry. 1 Johns., 65, Shotwell vs. Wendover. 2 Johns., 280, Wilson, et al., vs. Conine. 1 Chitty's Pl., 156. Detinue implies a taking without a tortious conversion, and is a form of action not used in this State. Ev. Pr., 45. Again, the Act of 1856 strikes down all forms of actions, and ignores all forms of pleading as known to the common law, except replevin. But all the defects alleged are cured by verdict even if existing. Such would be the case in England where more strictness prevails in matters of form, and where special pleading meets with more favor. 1 Chitty's Pl., 673 to 684, Bing. on Judgments, 80, in 13 Law Lib., 30 to 35. In this State the taking advantage of mere matters of form and reliance upon technicalities, to cause delay, trouble and expense, has been discountenanced from early provincial times, and consequently but very little can be found on the subject of arresting judgments, through the whole series of Reports of this State. Acts of 1763,  [**8]  ch. 23, sec. 2. 1809, ch. 153, sec. 2. 1811, ch. 161, sec. 4. 1852, ch. 177, sec. 1. 1856, ch. 112, sec. 43. 1 H. & G., 4, Vandersmith vs. Washmien. 7 H. & J., 78, James vs. Lawrence. 6 H. & J., 282, Kiersted vs. Rogers. 2 Md. 313, Williams vs. Bramble. Under the provisions of some of these Acts and decisions, this court has power to amend the proceedings, (if it should think they require amendment,) even at this stage of the cause, and to give judgment according to the verdict. 18 Johns., 510, Lion vs. Burtis. It seems to have been the policy of the Legislature of this State, to frown down any attempt to entangle its citizens in the old English network of special pleading, which was dangerous to the rightful and equitable decision of causes, which prolonged the litigation of a suit from generation to generation, and which made the assertion of a man's rights in a court of justice, a luxury which the few only could afford to indulge in.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*473]  GOLDSBOROUGH, J., delivered the opinion of this court.
The appeal, in this case, was taken from an order of the Superior court of Baltimore [**9]  city, overruling a motion made by the appellants for an arrest of judgment on the verdict in favour of the appellee. The appellants have assigned several 

 [*474]  reasons in support of the motion. The only one upon which it is material for us to express our opinion, is the alleged insufficiency of the declaration.
Whatever view may be taken of the Act of 1856, ch. 112, under the provisions of which the appellee prosecuted this suit, the precedent adopted by him, if it have any distinctive character, must be in the nature either of trover or detinue. If in the former, the judgment cannot be supported, as no damages are laid in the declaration for the injury complained of. The measure of damages in trover, is the value of the goods at the time of conversion. The plaintiff obtaining this value, it operates as a transfer of the title from the time of conversion. 5 H. & J. 211. In this case, the appellee claims, by his declaration, damages for the detention of the property, and not for the conversion of it. And he claims also a return of the property or its value.
When a declaration seeks, in addition to legitimate damages, other damages which the form of action does [**10]  not permit, and there be a general assessment, the judgment should be arrested. 2 Wms. Saunders 169, 171, and notes. If this action be regarded in the nature of detinue, a judgment on a verdict which does not ascertain the value of the property would be erroneous. The form of the conclusion in such actions, allows the plaintiff to claim the return of the property or its value. There must be a reasonable certainty in every judgment, that the defendant may be enabled to plead it in bar of any subsequent suit for the same cause of action. 8 G. & J. 385.
The purpose of the Legislature in passing the Act of 1856, was, "to simplify the rules and forms of pleadings and practice in courts of law;" and while the Act classifies and provides the forms of action for those on contract, and for actions for wrongs independent of contract, yet it must be apparent that the distinctive nature of actions remains, although the old forms have been abolished and new ones adopted.
It is impossible to disregard the substantial principles which 

 [*475]  underlie our system of jurisprudence, and to some extent govern the forms of action. These principles must still be recognized,  [**11]  however the new form may be changed or simplified. To disregard them would lead to endless confusion, and tend to defeat the purposes of justice.
In this case, we think, the substantial requirements of the Act of 1856 have not been complied with. The declaration is materially defective, and the verdict thereon cannot be supported. The decision of the Superior court, on the motion, must be reversed, and the judgment arrested.
Judgment arrested. 

30 of 196 DOCUMENTS 

STATE, use of EDWARD BUCKEY, vs. HENRY CULLER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 418; 1862 Md. LEXIS 31 

June 26, 1862, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Frederick County.

Debt, brought October 13th, 1856, by the appellant against the appellee, on a bond dated April 26th, 1847, in the penalty of $ 2000, conditioned for the faithful performance by George H. Buckey, of his duties as trustee, under a decree of a court of equity, in which the defendant and one Jacob M. Buckey, were co-obligors and sureties for said trustee:--Breach, that in 1855, the trustee was removed for violation of his trust, and the plaintiff appointed in his place, and it was then ascertained the trustee had $ 811.97, of the trust fund in his hands, which he was ordered by the equity court to pay the plaintiff, but refused and neglected so to do.

The defendant pleaded, that on the 12th of February 1851, he applied for the benefit of the insolvent laws, and obtained his final discharge thereunder, November 3rd, of the same year, and that the "promises, undertakings and causes of action in the declaration mentioned, were made and accrued, and contracted, before" said application. The plea avers that the defendant stated in his said petition, that he was insolvent, and imprisoned, and under arrest for debts which he was unable [**2]  to pay; and sets out at length full compliance with all the requirements of the insolvent laws.

The plaintiff replied, that on the 10th of June 1854, after the defendant's final discharge, his trustee in insolvency sold to the defendant the residue of the trust estate then unsold, for $ 32,000 cash, and reported to the insolvent court that a large surplus would remain in his hands after paying all the defendant's debts, that he had not received any part of this $ 32,000, from the defendant, but the defendant proposed, upon the ratification of an audit between the estate and the trustee, to furnish the trustee a sufficient sum in cash to pay all costs, commissions and expenses incurred in the the insolvent case, and all his debts filed in the case and unpaid; that thereupon the court directed an account to be so stated, and to allow the defendant any surplus after such payments, and on the 15th of June 1854, the auditor, in pursuance of this order, stated the account as directed, and a surplus of $ 12,659.22, was ascertained to be in the hands of the trustee, considering the $ 32,000 as paid to the trustee, and on the 14th of July of the same year, the court passed an order finally [**3]  ratifying said account, and ordered the trustee to pay over to the defendant said surplus, and the trustee complied with the requirements of this order, according to the previous proposal of the defendant, by receiving from him a sufficient amount of the $ 32,000, to pay all costs, commissions and expenses, and the debts still due, the defendant retaining the surplus in property purchased as aforesaid, from the trustee, and never in fact paying therefor, by a payment of so much money into the trustee's hands, and then receiving it back as surplus, and proper legal conveyances have been executed by the trustee to the defendant, restoring to him all the right, title and estate of the trustee in and to such property, and the same is now held and owned by the defendant.

The defendant demurred to this replication, and the court (NELSON, J.) sustained the demurrer, and gave judgment thereon for the defendant, from which the plaintiff appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A demurrer to a replication, brings before the court the sufficiency of the plea, the effect of a demurrer being, to bring before the court all the pleadings, and to mount up to the first error.

A bond to the State in a penal sum, conditioned for the faithful performance, by a trustee, of his duties as such, executed before the obligor's application for the benefit of the insolvent laws, is released by his discharge thereunder, though the breach of the bond occurred subsequently to such discharge.

To a plea of discharge under the insolvent laws, a replication, stating that the defendant, when he petitioned, was not, in fact, insolvent, but a large surplus of his estate remained, which the insolvent court directed to be paid over to him, is bad.

In the absence of fraud, to impeach the judgment of an insolvent court granting a final discharge, its efficacy cannot be denied when brought collaterally in question, if the case was within the jurisdiction of such court; the jurisdiction of such courts does not depend upon the fact of the petitioner's being actually insolvent.

Since the Act of 1834, ch. 293, which vests the property of the insolvent, acquired by gift, devise, descent, &c., in his trustee, the practice of taking a qualified judgment, where the discharge is pleaded, is erroneous: such a plea is a bar to the action, and, if confessed, judgment must be given for the defendant.  

COUNSEL:
Jos. M. Palmer and Samuel Tyler, for the appellant.

1st. A debtor's property is at common law, absolutely and unconditionally liable for his debts and contracts, and he cannot, by any act of his, extricate it from [**4]  that liability. How far is this common law liability affected by the insolvent laws of this State? By secs. 2, 5 and 6, of the Act of 1805, ch. 110, all the petitioner's property must be conveyed to his trustee, for the benefit of his creditors, except "the necessary wearing apparel and bedding of himself and family," which he is allowed to retain. With this exception, all his property is subject to the common law liability for his debts. Even a claim against a foreign government for deported slaves, though not strictly a legal claim, and though falling in a long time after the discharge, is liable for the petitioner's debts. 6 G. & J., 121, Plater vs. Scott. A statute makes no innovation on the common law, but what is expressed by the statute. 1 Kent, 463. Dwarr. on Stat., 43.

2nd. What effect had the court's order directing the trustee to pay back the surplus into the hands of the petitioner, towards extricating it from this common law liability for his debts? This depends in some measure on sec. 12 of the Act of 1805, ch. 110, which enacts, "that the County court may, by order, limit and appoint the time for creditors to bring in and declare their claims," &c. Now this section [**5]  merely prescribes a rule of practice. In construcing a statute, we must discriminate between the principles of law and the rules of practice, of which the statute is constituted. The principles of law, embodied in the statute, determine the rights and obligations which the statute is designed to regulate, while the rules of practice merely direct the mode of carrying into effect the principles of the statute in regard to those rights and obligations. This section does nothing more than prescribe the common rule of practice, in regard to a fund in the custody of the law, for distribution amongst creditors, and the rule is this:--a fund in a trustee's hands is always liable, except for a claim that has been filed and rejected, after it has first been suspended and further time allowed to the claimant to prove it, and he has failed to do so. 7 G. & J., 212, Kent vs. O'Hara. 4 Md. Ch. Dec., 254, Trust Co. vs. Winn & Ross. 1 Md. Ch. Dec., 271, Dixon vs. Dixon. If the claim has never been filed and rejected, the fund is always responsible for it while in the trustee's hands. This section, be it observed, is not intended for the benefit of the petitioner, but of the creditors as against each [**6]  other, and for the protection of the trustee, so that if a creditor does not file his claim in the time prescribed, and distribution is made to those who do file their claims, and the fund is paid to them, afterwards the dilatory creditor is excluded; but the petitioner himself cannot claim the fund if the creditors do not file their claims by the prescribed time. This, too, being an ex-parte proceeding, knowledge of it is not presumed on the part of creditors, so far as regards the insolvent himself. 7 G. & J., 215. If, therefore, this fund were now in the trustee's hands, it is clear this section would not extricate it from its liability for the petitioner's debts, because they were not filed by the prescribed time. Can the court's order by virtue of judicial authority, as applied to this special case, have such effect? The insolvent laws being for the benefit of those who are unable to pay their debts, cannot contemplate a surplus, and therefore no provision is made for a surplus. If however, from any cause, a surplus, or the whole fund, should remain in the trustee's hands it is a casus omissus, which can never be construed to be within the statute. Dwarr., 53. What then is to [**7]  be done with such surplus or fund? It is a resulting trust consignable only in equity; (4 Kent, 306, 307;) and the insolvent court had, therefore, no jurisdiction over it, and its order controlling it is void. The surplus is in Culler's hands, not by virtue of the court's order but by the conveyance from the trustee, and subject to all the liabilities which belonged to it in the trustee's hands. But if this surplus is in Culler's hands by virtue of the court's order, it remains in statu quo ante petitionem, liable for the petitioner's debts and contracts. Otherwise the monstrous inconsistency, injustice, and absurdity, result, of making the petitioner's future acquisitions liable for his debts, until the property owned by him at the time he petitioned is exempted.

3rd. The bond, for the breach of which this action was instituted, is not embraced in that class of contracts or agreements from which the insolvent laws release a petitioner. The insolvent law is confined to debtors and creditors. Before a breach of the bond, there is nothing in the nature of a claim which entitles the obligee, or the cestui que trust, to a distributive share of the fund, or authorizes him to appear [**8]  as a creditor, and object by allegations to the insolvent's discharge. Neither the penalty, nor the amount of the trust fund can be claimed, and "a part of the petitioning debtor's estate be set apart and retained for the eventual satisfaction of" any possible breach of the bond. Until, therefore, there be a breach, there is no claim; and the breach in this case occurred several years after Culler petitioned, consequently the claim is not affected by the petition. Any other construction will make the cestui que trust a creditor, without any of the rights of creditors under the insolvent law. And besides, there was no one to file the claim against the petitioner's estate. The defaulting trustee could not file against his security. The cestui que trust could not file it. No one could file it but the substituted trustee, and he only when the amount wasted was ascertained. If, therefore, this claim be within the insolvent law, that law makes impossible requirements, and impossibilities are never recognized as legitimate by courts. But that the claim under this bond was not discharged under the insolvent laws, and that the plea of the discharge thereunder, was therefore bad, is settled,  [**9]  it is submitted, by the cases of Wharton vs. Callan, 2 Gill 173, and Berry vs. McLean, 11 Md. 92.

4th. But Culler was not an insolvent debtor, and therefore not entitled to the benefit of the insolvent laws. The original Act of 1805, ch. 110, was granted to persons confined in prison for debt, who represented that "they are unable wholly to pay their debts." The benefit of this law was extended by the Act of 1806, ch. 98, to any "insolvent debtor," that is, to any person who was "unable wholly to pay his debts." The Legislature would not have granted the Act to persons able to pay their debts, and did not intend the courts should extend it to such persons; the intention of the Legislature must control judicial construction. 1 Kent, 41, 44. Dwarr., 40, 45. The petitioner must come within the class of persons intended by the Legislature--the statutory descriptio personarum--otherwise the court has no jurisdiction. 5 H. & J., 134, Shivers vs. Wilson. Residence for two years in the State is required to entitle a person to the benefit of the law. Surely, then, insolvency is required, otherwise the incidental condition of residence is put above the principal condition of insolvency.  [**10]  If actual insolvency is not required, then any man may surreptitiously entitle himself to the benefit of the insolvent laws, and by his petition suspend all executions against him, and then, as in this case, plead his discharge to any subsequent suit for a breach of a contract like this, or to a suit for any debt that was not filed with the insolvent trustee. A discharge granted to a person not of the description of persons meant in the insolvent laws, when pleaded or offered in evidence in bar of a subsequent suit, as in this case, must be treated as a nullity, because the court had no jurisdiction. We admit that the judgment of a court of competent jurisdiction cannot be attacked collaterally, (3 G. & J., 114, Fridge vs. The State,) but then it must be the judgment of a court of competent jurisdiction, in order to control the decision in a subsequent case. 2 Burr., 1009, Moses vs. Macferlan. To determine, therefore, whether it is the judgment of a court of competent jurisdiction, the question of jurisdiction is necessarily an open one. Jurisdiction is always an open question, whether in regard to the judgment of a court of general or of particular jurisdiction, whenever the judgment [**11]  is pleaded or offered in evidence in a subsequent suit. 10 Coke, 69, 76, Case of The Marshalsea. 1 Pet., 340, Elliott vs. Piersol. 2 Wilson, 382, Perkin vs. Proctor. 3 G. & J., 114. 5 H. & J., 42, Ins. Co. vs. M'Fadon. Jurisdiction has respect to place, causes, and persons, and if a court has not jurisdiction of all three in a given case, its judgment is null and may be avoided by a plea. If the petitioner in a case in an insolvent court is not an insolvent debtor the court has no jurisdiction, because he is not of the class of persons over whom jurisdiction is given to that court. 10 Coke, 69, 76. 2 Wilson, 382, 386. Though the facts and the proceedings, on which the judgment pleaded or offered in evidence was rendered, be perfectly regular on their face, yet the facts stated may be disproved by evidence outside of the record, so as to show there was no jurisdiction. A discharge under the insolvent laws is not like ordinary judgments--the end of proceedings --but proceedings come after the discharge, which may show that the petitioner is not of the class of persons over whom the court has jurisdiction, and which, if the court had known, would have prevented it from granting the discharge;  [**12]  a fortiori when such a discharge is pleaded in a subsequent suit as a defence, the facts disclosed in the proceedings after the discharge may be replied, in order to show that the court had no jurisdiction, and that therefore the discharge is null and void. As it appears from the facts of this case that Culler was not an insolvent debtor, the court had no jurisdiction, and his discharge was a nullity, and therefore is not a sufficient plea in bar of this suit. The court, in cases of insolvency, is confined to insolvent persons. Though Culler stated in his application that he was insolvent, this is shown not to be the fact, but untrue; he made a fraudulent use of the insolvent laws to baffle his creditors; the jurisdiction was obtained by fraud. Not being an insolvent the court had no jurisdiction over his person. 16 Md. 171, Clark, et al., vs. Jackson, et al. 11 Wend., 647, Denning vs. Corwin, et al. 8 How., 540 to 543, Williamson vs. Berry. 14 How., 334, Harris vs. Hardeman. If these doctrines were not law it would be impossible to keep up the boundaries between the jurisdictions of courts. In this case the court, under its authority over insolvent debtors, has taken jurisdiction [**13]  of a person who is not an insolvent debtor, and then, to complete what was wrongfully begun, it has taken cognizance of a resulting trust, as has been shown.

5th. But admitting the discharge is valid, what is its effect? Its entire effect, under the Act of 1805, ch. 110, is to release the person and the property acquired by future industry. By what authority, then, is any of the property, (except the necessary wearing apparel, &c.,) owned by the petitioner at the time of his application, released from its liability for his debts and contracts? The order of the court directing the surplus to be paid back to the petitioner could not release it, for that order is utterly void. The discharge does not affect property acquired "by gift, descent, or in his own right, by bequest, devise, or in any course of distribution." The surplus may well come within the description of property acquired in any course of distribution; these words are sufficiently comprehensive to embrace it. The replication and demurrer, raise the question: to what judgment is the plaintiff or appellant entitled? We say that under our third and fourth points he is entitled to an unconditional judgment. If not, that [**14]  then to a judgment to affect the surplus, and future acquisitions, by descent, &c., for all property of an insolvent, no matter how obtained, unless by his own industry, is responsible for his debts and contracts, and the plainest justice authorises and requires a court to give such form of judgment as will make the property responsible. But, at all events, the appellant is entitled, at least, to a judgment subject to the discharge, and therefore, in any view of the case, the judgment in favor of the appellee must be reversed.

H. T. Smith and Oliver Miller, for the appellee.

The plea not only states a case in which the insolvent court had jurisdiction, but fully minutely and with clearness, sets forth a compliance rigid and exact, with all the requirements of the insolvent laws, and a full and final discharge thereunder. It then avers, that "the promises, undertakings and causes of action in the declaration mentioned, were made and accrued and were contracted before" the application, and that since that time and since the discharge, the defendant has acquired no property by gift, descent or in his own right, by devise, bequest or in course of distribution. The replication [**15]  alleges no fraud, does not deny any of the allegations of the plea, but simply asserts that after the payment of all the debts of the insolvent, a surplus of his assets remained, which the court directed to be paid over to the insolvent, and which, in accordance with the order of the court, was paid over to him in the mode pointed out, and the sole question is, is this replication an answer to the plea? The appellee insists:--

1st. That upon the presentation of a petition such as is prescribed by the insolvent laws, the jurisdiction of the insolvent court attaches for all the purposes contemplated by the insolvent system, and the jurisdiction having once attached, the judgment of the court granting the final discharge, is just as obligatory and conclusive as the judgment of a court of general jurisdiction. It cannot when coming incidently in question be impeached or avoided, and it so comes incidently in question when pleaded, as a defence or in bar of an action, or when offered in evidence upon issue joined on such plea. 1 Gill 208, Bowie vs. Jones. 13 Md. 240, State vs. Reaney.

2nd. That the jurisdiction of the insolvent court attaches in this case, there is, we [**16]  think, no doubt, and the judgment of that case, granting the final discharge, being final and conclusive, as of a court of general jurisdiction, the next question is, what is the effect of that discharge? We insist that it is the language of the plea, and of the Act of 1805, ch. 110, sec. 5, a discharge "from all debts, covenants, promises and agreements, due from, or owing or contracted by, the applicant, before or at the time of his application." From all such debts and covenants, contracts, promises and agreements, it is an absolute, final, statutory discharge. All his debts and covenants, all his promises, every form of agreement, deed or contract, is discharged. In these terms is embraced a bond, with collateral condition. It is a debt contracted, or a covenant, within the express terms of the law, and from his obligation thereon, be is discharged, no matter when the breach, or cause of action under it, arose. This is done, it is insisted, by the express terms of the law itself. The cases of Wharton vs. Callan, and Berry vs. McLean, are the only ones in which any exception has been allowed to the effect of a discharge, and these were cases in which a surety had paid debts for [**17]  the insolvent principal after his discharge, and where the debts were not due before the discharge, and have no application to such a case as this, which is a bond under seal, by which a debt was contracted, and therefore, part of the judgment of discharge itself. If, therefore, the breach of this bond had not occurred until after the discharge, the bond having been executed prior thereto, the obligation thereon, of the appellee, was discharged.

3rd. But it is not necessary, in this case, to contend for the above proposition to the extent there stated. The record presents no such question, but, on the contrary, the plea alleges, that the cause of action mentioned in the declaration, accrued prior to the defendant's application, and this is not traversed or denied by the replication. The replication admits this allegation, and relies for an answer to the plea, solely upon matters which occurred in the insolvent court subsequently to the discharge. It is a case, then, in which the cause of action accrued before the application, and there can be no doubt but that the discharge operated upon it.

4th. If our first position is correct, then it would seem to follow, that any thing [**18]  done in the insolvent court subsequent to the final discharge, cannot affect the rights of the appellee under that discharge. The discharge is final, whether the result of the application may be the payment of one cent in the dollar on the insolvent's debts, or their payment in full with a surplus. The replication, therefore, is no answer to the plea. The assets of the insolvent when they get into the insolvent court, are exclusively under the control of that court, to be by it distributed in the mode pointed out by the insolvent laws, and its judgment making the final distribution is just as conclusive and final, as that of any other court having exclusive jurisdiction over any particular subject. 7 Gill 171, Carter vs. Dennison. 5 Gill 399, Somerville vs. Brown. The jurisdiction attaches upon the facts stated in the application, and does not depend upon the result of a surplus. Here the plea alleges the applicant stated in his petition, that he was insolvent, and was imprisoned, and under arrest for debts which he was unable to pay. There is no allegations in the replication that this was a fraudulent averment, or that he designed to use the insolvent laws fraudulently for [**19]  the purpose of baffling his creditors. Such an averment may be perfectly true, and yet the result of the application be a surplus, his property may appreciate in value, more advantageous sales may be made than he anticipated, and in numerous contingencies a surplus may remain after payment of all debts. Does, or can this defeat or divest the jurisdiction which once properly attached, and render the discharge, and all the proceedings in the insolvent court, null and void? It is submitted not. A person becomes an insolvent debtor under the insolvent laws at the time of filing his petition, when he then acknowledges his inability to pay his debts, and applies for relief. 5 H. & J., 411, Kennedy vs. Boggs. But it is said this surplus is property derived in "a course of distribution," within the meaning of the insolvent laws. If so, (which we by no means admit,) it is clear that, by the Act of 1834, ch. 293, sec. 2, it passes to and vests in the trustee in insolvency, and a court of law has, therefore, no jurisdiction over it, and it cannot be affected by any judgment such a court may render.

6th. The insolvent laws, themselves, make abundant provision for notice to every creditor [**20]  to bring in and declare his claim, (Act of 1805, ch. 110, sec. 12,) and the insolvent court having exclusive jurisdiction over the subject, the appellant, if he has any remedy at all, (a question which need not be discussed here,) must seek it in that court.  

JUDGES:
The cause was argued before BOWIE, C. J., BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*430]  BARTOL, J., delivered the opinion of this court.
The judgment below in this case was rendered in favor of the defendant, upon his demurrer to the plaintiff's replication, and the question presented by the appeal, is the sufficiency of the replication; but before considering that question, it is necessary to pass upon the sufficiency of the plea. The effect of a demurrer being, to bring before the court all the pleadings, and to mount up to the first error, it is competent for the appellant to argue as he has done in this court, that the plea was defective and insufficient, and if sustained in that position, the judgment would be reversed, no matter how defective the replication may be.
The action is debt on a bond to the State, in the penal sum of two thousand dollars, conditioned upon the faithful performance, by George [**21]  H. Buckey, (one of the obligors,) of the trust reposed in him by a decree of Baltimore county court, as a court of equity. The appellee, (defendant below,) is a co-obligor on the bond as surety for George H. Buckey.
The bond, which is the cause of action, was executed on the 26th day of April 1847. On the 12th day of February 1851, the defendant petitioned for the benefit of the insolvent laws, and was duly and finally discharged by the order of Frederick county court on the 1st Monday of November 1851. These facts are formally and sufficiently stated in the plea, and are relied on in bar of the action. The appellant insists that notwithstanding the discharge of the defendant, he remains liable on the bond, and this action can be maintained, because the breach of the condition, by George H. Buckey, alleged in the nar., did not occur till the 7th day of May 1856, after the defendant's discharge.

 [*431]  A majority of this court are of opinion that this objection to the plea cannot be supported.
By the 5th and 13th sections of the Act of 1805, ch. 110, the discharge of the debtor operates to release him from "all debts, covenants, contracts, promises and agreements, due  [**22]   from or owing or contracted by him, before his application." This language is broad and sweeping enough to cover the bond sued on in this case. It was a debt contracted by the defendant on the day of its date; by its very terms the obligors acknowledge themselves to be (then) held and firmly bound to the State in the sum of two thousand dollars. On that obligation the defendant was sued, and the judgment at law, if recovered, would be for that sum. It is true that under the statute of William Ill., the defendant would be entitled to be released, on payment of such sum as the jury might assess, as damages for the breach of the condition. Still, at law, the action is debt on the bond for the sum therein named. Under the Act of 1805, the insolvent debtor is released, not merely from all debts due and owing at the time of this application, but from all debts before that time contracted. When was the debt of Henry Culler to the State contracted? It is evidenced only by the bond sued on, and was contracted when the bond was executed. The right to maintain a suit on such a bond, secured by our law to a party in interest, does not arise till the condition has been broken, but [**23]  the legal debt of the obligor was contracted by the bond alone.
If this were a bond between individuals in a penal sum, conditioned for the payment of money by instalments, it could hardly be maintained, that the discharge of the obligor under the insolvent law, after the execution of the bond, and before the instalments became due, would not operate to release the insolvent from an action on the bond, although the obligee would have no right to maintain his suit before an instalment fell due.
The opinion of a majority of the court on this point is based on the construction of the Act of 1805, and its supplements, 

 [*432]  and we have seen no authority which, in our opinion, conflicts with that construction.
The cases of Wharton vs. Callan, 2 Gill 173, and Berry vs. McLean, 11 Md. 92, cited by the appellant, seems to us to rest upon other and distinct grounds not applicable to this. In both those cases the decisions went upon the ground, that the debt sued for was a new cause of action not existing at the time of the insolvent's application, and the rulings of the court were in conformity with the uniform course of decisions in England,  [**24]  under their bankrupt law. The writer of this opinion sat in the case of Berry vs. McLean, and, as will appear by the opinion of our late brother Eccleston, pronounced in that case, care was taken to state that the contract there sued on was not under seal, nor did it contain any penalty, nor promise to pay any sum of money, &c. 11 Md. 100. It was likened to the case of Wharton vs. Callan, and decided upon the same principles.
A majority of this court considering the plea in this case sufficient, we are next to examine the replication, and we are of opinion that it was bad. It states, in substance, that the defendant was not, in fact, insolvent when he petitioned, but at the sale of his land by the insolvent trustee, became the purchaser, and after the payment of the debts exhibited against him, there remained a large surplus, which went into his hands from the trustee. These facts do not in any manner impair the effect of the final discharge. In the absence of fraud to impeach the judgment of the insolvent court, (and this record presents no question of fraud or mala fides,) we cannot deny the efficacy of the judgment when brought collaterally in question,  [**25]  provided the case was within the jurisdiction of the insolvent court. And we think the appellant's counsel is in error in supposing that the jurisdiction of those courts depends upon the fact of the petitioner being actually insolvent. Nor are the rights of the parties in this action affected by the fact, that there remained in the hands of the trustee a surplus, which, under the resulting trust to the insolvent, was paid to 

 [*433]  him. We do not deem it necessary to express any opinion as to the rights of this plaintiff to pursue that surplus in another forum, and by another course of proceeding. It is clear, that he cannot claim because of the existence of such surplus in the hands of the trustee, to maintain an action at law against the insolvent, on a bond executed before his application, and from which he has been discharged under the statute.
We concur with the Circuit court in its decision on the demurrer, and we are also of opinion that the judgment ought to be affirmed.
Before the Act of 1834, ch. 293, a plea of discharge under the insolvent laws, was not a complete bar to the action; for though the plea might be confessed, the plaintiff would still be entitled [**26]  to a qualified judgment, subject to the effect of the discharge. This grew out of the provisions of the Act of 1805, and its supplements, which declared that certain property acquired by an insolvent after his discharge, in the manner prescribed by the Act, should still be liable, in the hands of the insolvent, to execution, to satisfy the debts of antecedent creditors. By the Act of 1834, ch. 293, such property is vested in the trustee, and not in the insolvent, and must be pursued in the insolvent court. There is no reason, therefore, why the practice which before prevailed, of taking qualified judgments, should have been continued after the Act of 1834. In our opinion, the plea in this case was a bar to the action, and the judgment below properly entered for the defendant.
Judgment affirmed. 

31 of 196 DOCUMENTS 

THOMAS SPARKS' Appeal in the Insolvent Estate of TONGE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 417; 1862 Md. LEXIS 30 

June 20, 1862, Decided 

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

The court below (PRICE, J.) decided, September 3rd, 1860, to reject the claim of Sparks against the insolvent estate in this case, and from this decision Sparks appealed, October 16th, 1860, and a motion was made to dismiss this appeal, for the reason, among others, that it was not taken in time.  

DISPOSITION:
Appeal dismissed.  

HEADNOTES:

An appeal from an order, or decision, in a case in insolvency, not taken within thirty days, as required by the Act of 1854, ch. 193, sec. 20, must be dismissed.  

COUNSEL:
James Malcolm and John J. Snyder for, and by G. L. Dulany against, the same.  

JUDGES:
The motion was argued before BOWIE, C. J., BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*418]  BARTOL, J., delivered the opinion of this court.
The motion to dismiss the appeal in this case must be granted. It appears from the record, that the decision of the Circuit court, from which the appeal was taken, was made on the 3rd day of September 1860. No appeal was taken until the 16th day of October 1860, when the time for appealing prescribed by law had passed.
The Act of 1854, ch. 193, sec. 20, allows thirty days, within which an appeal, in such a case, may be allowed; the language of the Act is clear and imperative, and we have no power to entertain the appeal where the appellant, as in this case, has not appealed [**2]  within the time prescribed by law. See Glenn vs. The Chesapeake Bank, Alexander & others, 3 Md. 475.
The first ground stated in support of this motion, being sufficient, it is unnecessary for us to express any opinion upon the other grounds alleged.
Appeal dismissed. 

32 of 196 DOCUMENTS 

ADAM SNIVELY and JOHN KEYS, vs. PRISCILLA FAHNESTOCK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 391; 1862 Md. LEXIS 26 

June 19, 1862, Decided 

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

Action, brought July 15th, 1858, by the appellee against the appellants, for that the defendants converted to their own use, and wrongfully deprived the plaintiff of the use and possession of her goods, that is to say of one piano, and the plaintiff claims $ 2000. Joint plea, that the defendants did not commit the wrong alleged.

Exception: From the evidence of the plaintiff it appears, the defendant, Snively, in June 1858, recovered certain magistrates judgments against Jacob Ayres, the plaintiff's father, and his counsel ordered fi. fas. thereon, directed to the defendant, Keys, a constable, who levied them on the piano, and took it from the plaintiff's possession, and from the house rented by her from her father, though informed it did not belong to Ayres, but had been conveyed by him to the plaintiff by a deed of trust, dated December 31st, 1857, offered in evidence. By this deed, the grantor conveyed this piano, and other goods, chattels, and choses in action, to the plaintiff, in trust, for the benefit of his creditors, and the plaintiff and her sister were among the creditors preferred, the former to the amount of $ 3376.75,  [**2]  and the latter to the amount of $ 4000. Keys was assisted in making the levy, and removing the piano, by one Starr, and it was taken to an auction store and offered for sale, and purchased by one Welby for $ 156, who, however, did not comply with the terms of sale, because of a protest entered by plaintiff's counsel, and fear of a law suit, and it remained in the auctioneer's warehouse. The judgments against Ayres, under which the execution was levied, were appealed from and reversed by the Court of Common Pleas, pending this suit and before its trial. The piano cost $ 400, and the expense of watching it and preventing its removal from the auctioneer's ware-room, was $ 25. Three prayers, offered by the defendants, were rejected by the court, (LEE, J.,) who gave an instruction of his own, and to this ruling the defendants excepted. These prayers and the instruction of the court below are fully stated in the opinion of this court. The verdict was in favor of the plaintiff for $ 650 damages, and from the judgment thereon the defendants appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

Where an execution on a judgment was levied by the officer on property not belonging to the defendant, which, under such levy, was taken from the possession of the owner, and there is no proof that the plaintiff, in the judgment, in any way participated therein, or sanctioned the acts of the officer, the owner cannot recover as against him.

In trespass for taking away goods, the plaintiff may, to enhance damages, give in evidence the circumstances accompanying the wrong, and any inconvenience and injury to the plaintiff, are proper to be considered by the jury in estimating the damages to the plaintiff, and the punishment of the defendant.

A court may refuse prayers as presented, and instruct the jury in its own words, or grant the prayers with explanations or qualifications, yet, when this is done, it must appear, from the instruction given, that full and substantial justice has been done to the parties, by declaring the law accurately, upon the points raised by counsel, and in terms explicit and intelligible to the jury.  

COUNSEL:
Wm. Price, for the appellants:--The deed under which the appellee claims, is void, as against [**3]  creditors, for it does not, upon its face, profess to convey all the grantor's property, and a creditor may treat such an assignment as a nullity, and proceed as if it had not been made. Burrill on Assignments, 541. It is actionable to put in force the process of the law maliciously, and without probable cause, but there is no pretence here of malice, or want of reasonable ground for supposing the property to be still the property of Ayres. 77 Eng. C. L. Rep., 936, Churchill vs. Siggers. But, however this may be, neither Snively, nor his attorney, gave any directions about the levying of the execution, and there is no evidence to show that he, in any way whatever, participated in the removal of this piano, or was a party to the trespass complained of, and he therefore cannot be liable in this suit. 7 Scott's New. Rep., 663, Jarmain vs. Hooper. 11 Md. 471, Campbell vs. Webb.

Jno. P. Poe and Robt. J. Brent, for the appellee:--No question as to the validity of the deed was raised in the court below, which we insist was valid, as it does not exact releases. That such an action as this can be maintained, there is no doubt, (8 Md. 301, Hamilton vs. Rogers,) and the jury are [**4]  not confined to the value of the property, but may give exemplary damages; (12 Md. 108, Schindel vs. Schindel; 17 Md. 23, Ridgely vs. Bond;) and all the facts and circumstances attending the wrongful act, may be given in evidence for this purpose, and are proper to be considered by the jury in estimating the damages. It is said there is nothing to implicate Snively in this trespass,--but he did not sever in his defence--the same attorney appeared for both defendants, and filed a joint plea for both--the execution was ordered to be issued by his attorney, at his suit, and for his benefit, and from these facts the jury might well infer, that he authorized the levy on this property, and thus participated in the trespass. But the instruction of the court, which embodied the true law as applicable to the facts, does not authorize the jury to find against both defendants, but relates to one only.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*394]  GOLDSBOROUGH, J., delivered the opinion of this court.
This action was brought by the appellee against the appellants, for that they converted to their own use, and wrongfully deprived [**5]  the appellee, of the use and possession of her piano.
The appellants, by their joint plea, denied that they committed the wrong alleged.
At the trial of the cause, after the evidence had been submitted to the jury, the defendants offered the following prayers:
"The counsel for the defendants prays the court to instruct the jury, that there is no evidence in this case that Adam Snively, one of the defendants with John Keys, deprived the plaintiff of the use and possession of the plaintiff's goods, nor that said Snively, with said Keys, converted the plaintiff's said goods to the use of said Snively and said Keys, and that, as against said Snively, said plaintiff is not entitled to recover in this case.
"2nd. The defendant further prays the court to instruct the jury, that if they believe that damages were sustained by the 

 [*395]  plaintiff by reason of the act of the defendant, Keys, one of the defendants (Keys and Snively) complained of in this case, that then the plaintiff is entitled to recover only such damages as the jury may find, from the evidence, were actually sustained by said plaintiff."
Which prayers the court rejected, but instructed the jury, that "if the jury [**6]  shall find from all the evidence in this cause, (and find the same to be true,) that at the time of the judgments and execution issued in this case, and provided the jury find the same to have been rendered and issued, the property (a piano) was then in the possession of Mrs. Fahnestock, and so held by her under a bona fide bill of sale or deed, which was of record, and that she held it under this title, then the right of property and possession of the same was absolutely in her, and the defendant in seizing the said piano under a magistrate's execution, has been guilty of a trespass, for which the plaintiff is entitled to such damages as the jury may find upon all the facts and circumstances of this case."
To the rejection of the defendants' prayers, and to the instruction of the court, the defendants excepted.
As there was no evidence, whatever, that Adam Snively participated in depriving the appellee of the use and possession of the piano, or in any manner sanctioning the acts of Keys, the other defendant, the appellants' first prayer should have been granted. See 1 Chitty's Pl., 80, and cases there referred to.
The second prayer of the appellants was properly rejected. A [**7]  plaintiff, in an action of trespass, may give in evidence for the purpose of enhancing the damages, the circumstances which accompanied and gave character to the wrong, and any inconvenience and injury occasioned to the plaintiff by taking the goods away under the peculiar circumstances of the case, are proper to be considered in estimating the damages of the plaintiff and the punishment of the defendant. See 12 Md. 108. 17 Md. 23.
As to the instruction given by the court:--However, as a general rule, it may be proper to grant or refuse prayers in the terms 

 [*396]  in which they are presented, and for the court to reject them all and instruct the jury in their own words, or grant the prayers with such explanations or qualifications as may be necessary to a proper understanding of the case, still, it must appear from the instruction given, that full and substantial justice has been done to the parties, by declaring the law accurately, and in terms explicit and intelligible to the jury, upon the points raised by the counsel. 2 Md. 74. 5 Md. 133. 6 G. & J., 404.
We consider the instruction of the [**8]  court manifestly defective in this important particular, that it makes no distinction, as to the defendants, in view of the evidence, and the language of the instruction is not explicit and intelligible to the jury as to the assessment of damages. Though the court used the word "defendant," it is clear that the instruction was intended to embrace both defendants, and to submit the law of the case to the jury in that view, thus taking from the jury the consideration of the material facts as to the participation of Snively in the alleged trespass, which it was necessary for the jury to pass upon, whatever might have been the state of the evidence. See 10 Md. 346. 16 Md. 445. Entertaining the opinion that the court below improperly rejected the appellants' first prayer, and that the court's instruction was erroneous, the judgment must be reversed.
Judgment reversed and procedendo awarded. 

33 of 196 DOCUMENTS 

JOHN D. KERR vs. THE UNION BANK OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 396; 1862 Md. LEXIS 27 

June 19, 1862, Decided 

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

A bill for an interpleader, was filed by the appellee against the appellant and John Glenn, in the court of chancery, August 4th, 1849, and asking for an injunction restraining the defendant, Kerr, from prosecuting his action of trover to recover damages for the conversion of certain promissory notes held by the bank, and also to restrain the defendant, Glenn, as permanent trustee of Edward M. Kerr, from prosecuting or commencing any proceeding against the bank, in reference to said notes. The grounds upon which the interpleader is asked, and the facts of the case are sufficiently stated in the opinion of this court. The appellant answered the bill, but Glenn never answered, and no steps were taken as against him. The proceedings were transmitted to the Superior court of Baltimore city on the 28th of April 1855, and on the 21st of April 1857, the case was set down for final hearing on bill and answer, and an agreement; by which it was agreed--

1st. That the decisions in the cases of Kerr vs. Potter, 6 Gill 404; Glenn vs. Gill 2 Md. 1; and Union Bank vs. Kerr, 7 Md. 88; may be read from the [**2]  printed reports, and the evidence therein contained, and the points therein decided, as if the evidence had been duly taken and made part of the proceedings in this case.

2nd. It is admitted, that the attachment issued by Samson Tams, mentioned in the bill, was finally disposed of before the bill was filed by a verdict and judgment against Tams, and that in that attachment Tams did not claim as against the complainant, or the defendant, John D. Kerr, the money or notes mentioned in the bill.

The court (LEE, J.) passed a decree on final hearing, perpetuating the injunction which had been granted against the defendant, John D. Kerr, and from this decree he appealed.  

DISPOSITION:
Decree reversed and bill dismissed, with costs to appellant.  

HEADNOTES:

In a case of a bill for an interpleader, if at the time the bill was filed there was some plausible apprehension that the complainant would be involved in a two-fold responsibility, yet if, before final decree, that cause of apprehension was removed, the bill must be dismissed.

Where, in an action at law by one of the defendants against the complainant in such a bill, the other defendant appeared as counsel for the complainant, the questions settled by the verdict and judgment therein, are conclusive as against the complainant, unless, and until, reversed on appeal.

The petition of a complainant, seeking relief in equity from conflicting claims, by a bill of interpleader, must be one of continuous impartiality. 

COUNSEL:
Wm. Schley, for the appellant, argued:

1st. The decree, making the injunction perpetual, can only be supported, provided the case, on final hearing was such, as to entitle the complainant to a decree of interpleader. The injunction is necessarily dependent on the right to relief by interpleader, inasmuch as the complainant disclaims any right to the bills, notes and money, and only asks protection from the conflicting demands of the defendants.  [**3]  

2nd. And although, where the case is ripe for decision, as between the defendants themselves, the court may dispose of the case by final decree, without directing an issue or reference, or interpleader, and may properly bring the case to hearing, as to one defendant, where the other has not answered, yet, in either aspect, this decree can be sustained only on the hypothesis, that the claim of the appellant is wholly unfounded. By enjoining the appellant, perpetually, from proceeding at law, without reservation, by the decree, of any rights or equities on his behalf, in relation to the property, he is effectually excluded from redress or relief in any way whatever.

3rd. The case of the complainant, as presented at final hearing, did not establish a title to the relief of a decree of interpleader. The material facts are:

1st. On presentation, by the appellant, of his assignment at the bank, its cashier recognized it, and endorsed thereon the extent of the bank's claim. This created a privity between the bank and the appellant. Thenceforth the bank held the collaterals for the use, and as the property, of the appellant, subject only to the paramount right of the bank to [**4]  payment, in priority, of its own lien.

2nd. The asserted title of Gill was ended before this bill was filed.

3rd. The claim of Glenn was made in his capacity of permanent trustee of E. M. Kerr, and was based on the alleged invalidity of the assignment to the appellant, under the insolvent laws. His was a dry legal claim, based not on contract but on alleged fraud.

4th. The bank in the action of assumpsit, which had been tried before this bill was filed, raised the same and all the questions which it now asks the court, to compel the appellant to litigate anew with the other defendant. As between the bank and the appellant, those questions were conclusively settled by the verdict and judgment at law, unless and until reversed on appeal. At the time this bill was filed, that judgment was in full force, and at the time of final hearing the same had been affirmed on appeal. The validity of the assignment was established in every particular, and the bank is estopped as to the questions settled between the parties to that case.

5th. The other defendant had defended the action of assumpsit, as his own. Having elected the forum of trial, and defended there the claim of [**5]  the appellant, and having, moreover, carried the case to the Court of Appeals, and failed in the resistance of the appellant's title under the assignment, the verdict and judgment in favor of the appellant, should be held, in equity, as equally conclusive against him, even if he were seeking to draw again in question the title of the appellant. The bill, however, does not show any renewed claim by him.

6th. The action of trover was brought April 28th, 1547. Glenn was appointed trustee in 1847. The complainant had been fully paid as early as December 1846. This bill was not filed until August 4th, 1849, nearly two years after Glenn's demand. In the mean time the complainant resisted, at law, the claim of the appellant, and cooperated with the other defendant in attempts to defeat the action. The course of the complainant was marked, not merely by unreasonable delay, amounting to gross laches, but was partizan in its character and collusive. If there was no collusion in filing the bill, there was previous collusion, discreditable to the complainant, and debarring it from any claim to equitable relief, even if the participation of the other defendant in the defence of that case,  [**6]  would entitle him to claim as against the complainant.

In support of the above positions, see Cooper's Eq. Pl., 456; 2 Story's Eq., secs. 817 to 821; Wat. Eden on Inj., 405, and notes; 3 Daniell's Ch. Pr., 1754, 1765; 7 Sim., 391, Crawshay vs. Thornton, and same case in 2 Mylne & Craig, 1; 4 Paige, 384, Clute's case; 2 Paige, 570, City Bank vs. Bangs; 11 Sim. 24, Bignold vs. Audland; 5 Sim., 19, Mason vs. Hamilton; 2 Smith's Lead. Cases, 443; 3 East, 346, Outram vs. Morewood; 4 G. & J., 345, Shafer vs. Stonebraker; 12 Md. 550, Beall vs. Brown; 8 Paige, 339, Shaw vs. Coster; 2 Paige, 199, Bedell vs. Hoffman.

G. L. Dulany and Reverdy Johnson, for the appellee-- argued, that under the circumstances of this case, set forth in the bill, the appellee was entitled to its bill of interpleader, and that the court below committed no error in perpetuating the injunction which had been granted against the appellant, and in support of their position they cited Mitford's Ch. Pl., 58, 59, 164; 2 Story's Eq., secs. 805 to 817; Story's Eq. Pl., secs. 291, 292; 3 Daniell's Ch. Pr., 1755; Cooper's Ch. Pl., 47, 49; 2 Md. Ch. Dec., 466, Union Bank vs. Kerr and Glenn.  

JUDGES:
The cause was argued [**7]  before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*400]  GOLDSBOROUGH, J., delivered the opinion of this court.
The appeal in this case was taken from a decree of the Superior court of Baltimore city, sitting in equity, by which the appellant was perpetually enjoined from prosecuting an action of trover, instituted in Baltimore county court on the 28th day of April 1847, against the appellee, to recover damages 

 [*401]  for the conversion of certain promissory notes claimed by the appellant under an assignment from one Edward M. Kerr, and which being demanded, the appellee refused to deliver up.
The bill of complaint of the appellee alleges as an excuse for its refusal, that though it had no claim to the notes in question at the time of the demand of the appellant, yet, before then, it had received notice from George M. Gill Esq., attorney for a certain Moses Potter, that he claimed these notes as receiver, appointed to settle up the affairs of the partnership of Edward M. Kerr & Co., and that they formed part of the partnership effects.
The appellee alleges as a further excuse, that subsequent to the demand of the appellant, "an attachment upon [**8]  judgment in a certain action in which Sampson Tams was plaintiff, and Edward M. Kerr was defendant, issued out of the Circuit court of the United States for the district of Maryland, and was laid in the hands of your orators and of George M. Gill and others, as garnishees of Edward M. Kerr, which proceeding is still pending." The appellee alleges as a still further excuse for the noncompliance with the demand of the appellant, that Edward M. Kerr, his assignor, applied for the benefit of the insolvent laws of Maryland, on the 4th day of May 1847, and John Glenn, Esq., was appointed his permanent trustee, and claimed these notes of the appellee, in his capacity of trustee of said Kerr, on the ground, that the assignment of Edward M. Kerr, as above, to John D. Kerr, was void under the insolvent laws of Maryland, as an undue preference by a debtor in failing circumstances and that the notes so assigned were partnership property.
This case is in some measure divested of its complicated character as set forth in the appellee's bill, by the admission of the parties, that "the attachment of Sampson Tams, in said bill named, was finally disposed of before the filing of this bill, by a verdict [**9]  and judgment against said Tams; and that in said attachment, said Tams did not claim as against the complainant, or as against the defendant, John D. Kerr, the money or 

 [*402]  notes mentioned in the bill, as claimed by the said defendant, John D. Kerr;" also by the fact, that the claim of George M. Gill was decided adversely to him by the Court of Appeals, (2 Md. 1,) before the filing of the bill in this case, thus reducing the parties claimant, to the appellant, and John Glenn, trustee of Edward M. Kerr.
It is for us to determine, from the allegations in the complainant's bill, the defendant's answer, and from the conduct of the appellee, whether it has such a standing in a court of equity, as to entitle it to require the contestants to interplead, and settle their respective claims to the notes involved in the action of trover, and to a perpetual injunction against the appellant, as granted by the decree from which this appeal is taken.
This bill was originally filed in the high court of chancery, on the 4th day of August 1849, and subsequently removed to the Superior court of Baltimore city. And though John Glenn, Esq., was made defendant, as well [**10]  as the appellant, no subsequent process was sought by the appellee to compel said Glenn to appear and defend his rights, and he was permitted to disappear altogether from the cause, although a period of some four years intervened between the filing of the bill and his death. In the above interval, Mr. Glenn tacitly permitted the present contesting parties to litigate a question, in which, in his representative capacity, he was interested:--in fact he was in part the cause of the bill being filed, by setting up a claim to the notes in question, leaving the appellee, as that party thought, no alternative but to seek the aid of a court of equity, to compel the respective claimants to interplead. We do not deem it inequitable to conclude, that Mr. Glenn, by this course of conduct, regarded his rights as substantially settled by the decision of the action of assumpsit, to which we shall hereafter refer.
Though there may have been some plausible apprehension entertained by the appellee, at the time the bill in this case was filed, that it would be involved in a two-fold responsibility, 

 [*403]  yet before the time of the final decree, the cause of that apprehension, in our opinion,  [**11]  was substantially removed, and the equity, on which it relied, no longer existed.
At the time of the institution of the action of trover, the appellant brought an action of assumpsit, to recover the sum of $ 574.18, which the appellee admitted to be in its hands, and to which it had no claim.
The appellant claimed this fund under the very same assignment from Edward M. Kerr, which created the right of the appellant to claim the notes involved in this controversy. In the prosecution of the action of assumpsit, the appellee admits in its bill, "that John Glenn, Esq., trustee of Edward M. Kerr, as aforesaid, appeared for your orators and defended the case as his own, and that he has since taken an appeal to the Court of Appeals." This relation between Mr. Glenn and the appellee, seriously affects the idea, that the appellee was desirous to maintain the position of an impartial stake-holder; on the contrary, we are compelled to say, that it exhibits evidence of a combination, which, in a case like this, a court of equity cannot sanction in view of the prayer of the bill.
At the trial of the action of assumpsit in Baltimore county court, in which the appellant was plaintiff [**12]  and the appellee was defendant, every legal objection to the right of the plaintiff to recover was made, which could be made by the appellee to the action of trover, against which it now seeks relief; the bona fides of the assignment from Edward M. Kerr, to the appellee; that it was voluntary and without consideration; that the assignment was void, being made by Edward M. Kerr, with a view of becoming an insolvent debtor; that it gave to the assignee an undue and improper preference, and was a fraud on the insolvent laws, and for that reason was void. See the exceptions in the case of the Union Bank vs. Kerr, 7 Md. 88. As between the appellee and appellant, these questions were conclusively settled by the verdict and judgment, unless, and until, reversed on appeal. See 2 Smith's Lead. Cases, 590; 4 Md. 165. At the time the bill in 

 [*404]  this case was filed, that judgment was in full force, and before the final hearing, the same on appeal had been affirmed; see last case cited above. Reverting to the relation of John Glenn to this case, and considering the total neglect of the appellee to take any process against him,  [**13]  either by attachment, for want of appearance or answer, when, if the appellee had done so, and on failure of Glenn to appear and answer, it might have taken the bill pro confesso as to Glenn, and that would have been a tacit confession by him, that he had abandoned his claim upon the notes in question, and the complainant would have been entitled to a perpetual injunction against Glenn, and not against the appellant. See 2 Paige 209.
We cannot justify this neglect of the appellee, nor permit it to operate to the prejudice of the rights of the appellant. This course of conduct on the part of the appellees, taken in connection with the circumstances of the case, so far affects the equity of the bill, that, in our opinion, the complaint is divested of all merit; more especially as, by the perpetuation of the injunction against the appellant, he is effectually excluded from redress or relief in any way whatever. The position of a complainant, seeking relief in equity from conflicting claims by bill of interpleader, should be one of continuous impartiality.
This position the appellee has wholly abandoned. If the facts and circumstances which have arisen since the [**14]  filing of the bill, and to which we have adverted, could have been presented to the consideration of the Superior court by a supplemental answer, to be weighed at the final hearing, then the appellant is entitled to the benefit of them, under the agreement of the parties.
In view of the whole case, the decree of the Superior court from which this appeal is taken, was erroneous, and must be reversed.
Decree reversed and bill dismissed, with costs to appellant. 

34 of 196 DOCUMENTS 

HENRY S. MITCHELL'S Lessee, vs. SARAH E. MITCHELL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 405; 1862 Md. LEXIS 28 

June 19, 1862, Decided 

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

Ejectment, for a house and lot in Baltimore, brought May 7th, 1857, by the appellant against the appellee. Plea, non cul.

Exception: Both parties claim under the will of Francis J. Mitchell, and the only question arises, under the facts, upon the construction of the following clauses of that will:

4th. By this clause the testator gave and devised to his son, James Davidson Mitchell, the house and lot in controversy, with the furniture therein, and other personal property, consisting of stocks and negroes:--"To hold to him, the said James Davidson Mitchell, his heirs, executors and administrators, forever, in trust and confidence, nevertheless, and to and for the uses, and to the ends, intents and purposes, and subject to the provisoes and declarations hereinafter expressed and declared, of and concerning the same; that is to say, in trust that my daughter, Sarah Elizabeth Mitchell, be suffered and permitted, for and during the time she shall remain single and unmarried, subject to the restriction hereinafter mentioned, in the event of her joining the sisterhood at Emittsburg, or any other religious sisterhood, to use,  [**2]  occupy and enjoy the property last above described or mentioned, and the entire rents, issues and profits and income of the same, to have, receive, take and apply to her separate use and benefit; and in the event of her marriage, in trust for the proper use and behoof of the said Sarah Elizabeth, her heirs, executors, administrators and assigns, forever, free from any control, whatever, of the said James Davidson Mitchell over the same, and subject only to her use, power and disposition. But whereas my said daughter, Sarah Elizabeth Mitchell, has heretofore expressed a desire and intention to join the Sisterhood of St. Joseph's, at Emittsburg, now it is hereby declared to be my will and desire, in case she should, at any time hereafter, unite herself to that sisterhood, ar any other religious sisterhood, that then her enjoyment of the entire property hereby devised in trust for her use, and the rents, issues, profits and income thereof, shall cease, or be suspended, and that, in lieu thereof, my said son, James Davidson Mitchell, pay her annually the sum of two hundred dollars, so long as she shall remain attached, or united, to the religious sisterhood, of which she may become a member,  [**3]  as aforesaid; and, in the mean time, that the surplus proceeds, rents, issues and profits of the same estate, be, by the said James Davidson Mitchell, invested in some productive fund or stock, for the future use and benefit of the said Sarah Elizabeth Mitchell, if she should, at any time hereafter determine to leave the sisterhood to which she may become united, or for the person or persons entitled to the same, agreeably to the provisions hereinafter mentioned."

5th. "And lastly, it is declared to be my will and desire, in the event of the death of my said daughter, Sarah E. Mitchell, without having been married, or in case she should be united to any religious sisterhood, as aforesaid, for ten years in immediate succession, that the said property so devised and bequeathed in trust for her, as aforesaid, and all interest accrued upon the stock or fund aforesaid, as well as the stock or fund itself, shall belong to, and devolve upon, my aforesaid sons, Francis J. and Henry S. Mitchell, or the survivor of them, their or his heirs, executors, administrators and assigns, forever, subject, however, so long as the said Sarah Elizabeth Mitchell shall live, to the payment to her of [**4]  the aforesaid annual sum of two hundred dollars, and no more, and to, for, or upon, no other use, trust, intent or purpose, whatsoever."

The testator died in 1825, and James D. Mitchell died in 1837, without issue, leaving no brother or sister of the whole blood other than the defendant, Sarah E. Mitchell. Francis J. Mitchell died in 1841, without issue and intestate, leaving no brother or sister of the whole blood, other than the lessor of the plaintiff, Henry S. Mitchell. The defendant united herself to a religious sisterhood in Baltimore, under the rule of the Roman Catholic church, in 1837, and has ever since continued united thereto, and became a fully professed member, in full communion therewith, in 1845, and has ever since remained as such. It was proved that the premises were of the annual value of $ 250, and no more, liable to be reduced by necessary outlays for repairs, taxes and insurance.

A prayer was offered by each party asserting and denying, upon these facts, the right of the plaintiff to recover in this action. The court (LEE, J.) granted the defendant's prayer, and rejected that of the plaintiff, and to this ruling the plaintiff excepted, and the verdict [**5]  and judgment being against him, appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

A testator devised real and personal estate to his son James, and his heirs, in trust, that his daughter should enjoy the property during her single life, and if she married, then in trust for her and her heirs, but if she united herself to any religious sisterhood, then her enjoyment of the entire property was to cease, and the trustee was to pay her $ 200 annually, so long as she remained attached to such sisterhood, and invest the surplus rents and profits, for her use, if at any time thereafter she should determine to leave such sisterhood, "or for the person or persons entitled to the same, agreeably to the provisions hereinafter mentioned." He then declared it was his will, in the event of the death of his daughter, without having been married, or in case she should be united to any religious sisterhood for ten years in immediate succession, that the property so devised and bequeathed in trust for her, as well the interest accrued as the fund itself, shall belong to and devolve upon his sons, Francis and Henry, or the survivor of them, their or his heirs and assigns, subject to the payment of $ 200, and no more, to his daughter, during her life, "and to, for, and upon no other use, intent or purpose, whatsoever." James died, leaving the daughter his sole heir at law of the whole blood, and Francis also died, intestate, and without issue, leaving Henry surviving. The daughter united herself, and remained attached, to a religious sisterhood, for more than ten years in immediate succession. On ejectment, by Henry, against the daughter, for the real estate so devised; HELD:

That upon these facts, and by the true construction of this will, the legal title to the property in dispute was vested in Henry, the plaintiff's lessor, and he is, therefore, entitled to recover in this action.  

COUNSEL:
Thos. S. Alexander, for the appellant.

As none of the facts, on which the conflicting titles rested, were disputed, the ruling below must have been based exclusively on the ground, that the legal estate in the premises remained in the defendant. The appellant insists, that upon the true construction of the will of the father, the estate limited to James was to determine on the marriage of the daughter, or on her death, without having been married, or in the event of her becoming united to any religious sisterhood for ten years in succession, whichever of these events should first happen. On the happening of the first, the legal estate in the premises was to vest absolutely in the daughter, on the happening of either of the other two events, the property devised was to belong to and devolve on the sons, Francis and Henry; and by the death of the former, without issue, and the religious profession of the daughter, has vested wholly in Henry, the lessor of the plaintiff. It is said the word "or," in the last clause, should be read "and," but this is never done except to effectuate the clear [**6]  intent of the testator, and so far from doing so here, it would clearly frustrate that intent, for by making both contingencies, the death unmarried, and the religious profession for ten successive years, to happen before the estate should vest in Francis and Henry, we must impute to the testator the intent, that if the daughter should die unmarried before she had been so united to a religious sisterhood for ten years, these sons should not take, which was clearly not his intention;-- such a construction is also contrary to the other provisions of the will, in regard to his daughter, and cannot be adopted without violating, instead of effectuating, the testator's intention.

Robt. J. Brent and Jno. P. Poe for the appellee.

The only question presented is, the true construction of this will. The theory of the appellee is, that, upon the death of James, the legal title, which had been expressly devised to him in fee, descended, by virtue of the words of inheritance contained in the clause creating it, upon the daughter, his sister of the whole blood, as his only heir at law, and that consequently, she having been thus vested with the legal estate, became her own trustee to the [**7]  extent of her right to receive out of the rents of the trust estate the $ 200 per annum, notwithstanding the fact of her joining a religious sisterhood. Any surplus from the rents, over this sum, it is her duty to pay over to the appellant, her surviving brother of the half-blood, in obedience to the clause which provides, that in the event of her remaining united for ten years in succession to a religious sisterhood, the said property, so devised in trust, shall belong to and devolve upon Francis and Henry, or the survivor of them. The only effect of the happening of the contingency of membership in a religious sisterhood for ten successive years was, to diminish her beneficial interest in the property devised, and not to change the legal estate therein and to devolve it upon the appellant. Nor is this view in conflict with the subsequent clause, which declares that the property devised in trust "shall belong to and devolve upon" Francis and Henry, "subject to the payment to her of the aforesaid annual sum of $ 200," because this view alnoe gives effect to the words of inheritance in the clause creating the trust--the words "subject to payment to her," &c., mean payment to her by [**8]  the trustee, James, and his heirs, who are expressly clothed with the legal title, and do not mean that the legal estate of the trustee, James, and his heirs, should be divested and conferred upon Francis and Henry, and their heirs, thus making them the trustees of their half-sister. The testator intended to hold the diminution of the income in terrorem over his daughter, as a means of deterring her from becoming a nun. It would be difficult to construe the language he uses so as to make it appear that his purpose was, on the happening of the contingency which he seemed desirous to avert, to destroy the legal estate vested in James, and his heirs, and substitute, as trustees, Henry and Francis and their heirs. This view is corroborated by the last sentence of the last clause, which is wholly inconsistent with the idea that the testator meant the trust to terminate upon the happening of the contingency of ten years successive membership of a religious sisterhood. If she married at any time, the legal estate was to vest in her absolutely. She may now leave the sisterhood and marry, and, by the terms of the will, she would be entitled to the whole legal estate; so that, by the construction [**9]  on the other side, the legal estate would be first vested in James and his heirs, then divested from them and vested in Henry and Francis and their heirs, and, in the event supposed, again divested from them and vested in the daughter. Our construction is the more simple and consonant with the intent: we say, the legal estate continued in James and his heirs during the life of the daughter or until she married. Hill on Trustees, 231 to 235. 2 Jarman on Wills, ch. 34. 12 East, 455, Right vs. Smith. 3 East, 533, Doe vs. Ironmonger. 6 Q. B., 860, Adams vs. Adams. 3 Md. 505, Ware vs. Richardson. There would be no difficulty in the case if the word "or," in the last clause, is construed "and;" and when such a construction is obviously necessary, as here, to effectuate the plain intent of a testator, the court will so construe it. 7 Gill 197, Janney vs. Sprigg. 1 Adol. & Ellis, N. S., 430, Davies vs. Davies.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*410]  GOLDSBOROUGH, J., delivered the opinion of this court.
This appeal is taken from a judgment of the Superior court of Baltimore city, rendered in an action of ejectment, brought [**10]  by the appellant against the appellee, for the recovery of a lot of ground in the city of Baltimore.
At the trial of the cause, two prayers were presented to the court, one at the instance of the plaintiff, which was rejected, and the other by the defendant, which was granted.
To this ruling of the court, the plaintiff excepted. By an examination of these exceptions, we find that the only question for us to determine, is, had the plaintiff such a legal title to the property in dispute that he could maintain his action. This depends upon the true construction of the last will and testament of Francis J. Mitchell, set out in the record.
The appellant insists, that upon the true construction of the 

 [*411]  will of the father, the estate limited to James D. Mitchell, was to determine on the marriage of the appellee, or on her death without having been married, or in the event of her becoming united to any religious sisterhood for ten years in succession, whichever of those events should first happen;--on the happening of the first contingency, the legal estate in the premises in question, was to vest absolutely in the appellee; on the happening of either of the other two events [**11]  contemplated, the property devised, was to belong to and devolve on the sons, Francis and Henry, and by the death of the former without issue, and the religious profession of the appellee, has vested wholly in the lessor of the plaintiff.
The theory of the appellee is, that upon the death of James D. Mitchell in 1837, the legal estate which had been expressly devised to him in fee, descended, by virtue of the words of inheritance contained in the clause creating it, upon her as his only heir at law, she being his sister of the whole blood, and that, consequently, she having been thus vested with the legal estate, became her own trustee to the extent of her right to receive out of the rents of the trust estate, the sum of two hundred dollars per annum, notwithstanding the fact of her joining a religious sisterhood.
The view entertained by the appellant is, in our opinion, clearly correct. The testator was a gentleman of large fortune, and the provisions of his will indicate great care in the disposition of his property. In reference to his daughter, he appointed her brother, James D. Mitchell, her trustee to manage her portion while she remained single, and during that period [**12]  when, if she joined a religious sisterhood, she might exercise the privilege of changing that mode of life and return to the world. That he designed a further disposition of the property involved in this suit in certain contingencies, is manifest from the concluding part of the fourth item of his will. In that, the testator provides as follows: "And in the mean time, that the surplus proceeds, rents, issues and profits of the same estate, be by the said James Davidson Mitchell invested in 

 [*412]  some productive fund or stock for the use and benefit of the said Sarah Elizabeth Mitchell, if she should at any time hereafter determine to leave the sisterhood to which she may become united, or for the person or persons entitled to the same, agreeably to the provisions hereinafter contained."
By the fifth clause or item the testator bequeaths and devises thus: "And lastly, it is declared to be my will and desire, in the event of the death of my said daughter, Sarah E. Mitchell, without having been married, or in case she should be united to any religious sisterhood as aforesaid, for ten years in immediate succession, that said property so devised and bequeathed in  [**13]   trust for her as aforesaid, and all interest accrued upon the stock or fund aforesaid, as well as that stock or fund itself, shall belong to, and devolve upon, my aforesaid sons, Frances J. and Henry S. Mitchell, or the survivor of them, their or his heirs, executors, administrators and assigns, forever, subject, however, so long as the said Sarah Elizabeth Mitchell shall live, to the payment to her of the aforesaid annual sum of two hundred dollars, and no more, and to, for, or upon no other use, trust, intent or purpose whatsoever."
It was insisted in argument by the appellee's counsel, that the word, "or," in this clause of the will, should be construed "and," thus requiring both contingencies to happen before the trust estate would cease. This is not our view. We regard them as alternative, and whichever might first happen would divest the title of the trustee and devolve the same upon the devisees named in that clause.
Judgment reversed and procedendo awarded. 

35 of 196 DOCUMENTS 

FREDERICK E. RATCLIFFE, vs. LAWRENCE SANGSTON, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 383; 1862 Md. LEXIS 25 

June 11, 1862, Decided 

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

Replevin, brought May 15th, 1854, by the appellant against the appellee. Pleas non cepit, and property in defendants.

1st Exception: The plaintiff proved that the goods replevied, were purchased in March, April and May 1854, by George W. Yerby, of the firm of Yerby, Tebbs and Yerby, in Washington, by making false representations to the plaintiff in New York, and that the plaintiff sold the goods to him on credit, exclusively upon the faith of such representations; that the goods so obtained and never paid for, were by that firm sent from Washington to Baltimore to the defendants, and placed in their charge, and were replevied by the writ in this case. The defendants, Hurst, Sangston and Hodges, claimed them under a deed of trust from said firm, dated May 9th, 1854. By this deed said firm conveyed all their goods in their store, in Washington, and all debts, &c., due by them to the defendants, in trust that they, "their executors, administrators and assigns, the survivors and survivor of them, his or their executors, administrators and assigns, or a majority of them, shall forthwith take possession of said goods," &c., and proceed [**2]  to sell, &c., and apply the proceeds, first, to pay the debts in schedule A, attached to the deed, (among which were debts due the grantees;) secondly, those in schedule B; and thirdly, those in schedule C; and the balance, if any, to the grantors. By an endorsement on this deed, dated May 15th, 1854, Sangston, one of the parties, renounced the trust, and assigned his rights and powers as trustee to his co-trustees; but the proof shows he acted as trustee till this suit was brought. The defendants offered said George W. Yerby, as a witness, and his competency being objected to, mutual releases were executed between him and the defendant. The plaintiff still objected to his competency, but the court (LEE, J.) overruled the objection, and decided he was competent to testify for the defendants, and to this ruling the plaintiff excepted.

2nd Exception: The defendants then examined said Yerby and he gave evidence tending to contradict the evidence offered by the plaintiff. The plaintiff then asked the court to instruct the jury:--

1st. That the deed of trust does not authorize any two, or any number less than the three joint trustees, to take possession of, and sell the goods [**3]  for, the purpose of the trust.

2nd. That this deed is void on its face, for fraud, and conveys no title to the trustees.

3rd. That if the jury believe the goods replevied were sold by the plaintiff on credit, to the witness Yerby, by and through false and fraudulent representations made by him for the purpose of procuring such sale, then no title passed to him or the firm of Yerby, Tebbs and Yerby, and the plaintiff is entitled to recover said goods as against the defendants, if the jury find the defendants claim them under said deed of trust, and not otherwise.

4th. That the consideration of pre-existing indebtedness, is not sufficient in law to constitute a valuable consideration in said deed of trust, so as to invest the defendants claiming under it with a higher or better title than the grantors therein.

5th. That on the issue under the plea of non cepit, the plaintiff's are entitled to a verdict, if the jury find the defendants had possession of the goods as alleged in the nar., even though they may find the issue of property for the defendants.

The court rejected these prayers, and instructed the jury in effect, that if they find the goods were obtained [**4]  by Yerby, by means of false and fraudulent representations, and that the defendants received them under the deed of trust, with notice of such fraud, the plaintiff is entitled to recover. The plaintiff excepted to the rejection of his prayers and to the instruction given by the court, and the verdict and judgment being against him appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

In replevin for goods, by the vendor against trustees claiming under a deed of trust from the vendee, for the benefit of his creditors, the vendee, after mutual releases executed by him and the trustees, is a competent witness for the defendants.

A deed of trust for the benefit of creditors, to three trustees, that they, "their executors, administrators and assigns, the survivors and survivor of them, his, her or their executors, administrators and assigns, or a majority of them, shall forthwith take possession, and sell the goods," &c., implies that a majority of the trustees may execute the trust.

Where a deed of trust is made to several trustees, and a part disclaim the trust, the others will take both the legal estate, and the power to administer the trust, unless the intention, that all shall act, is expressed, or clearly implied from the conveyance.

An assignment of goods by a fraudulent vendee, for the benefit of his creditors, in consideration of a pre-existing indebtedness, confers no title as against the defrauded vendor, who may avoid the sale and recover the goods from the assignee, who has no notice of the fraud: such assignee is not a purchaser for a valuable consideration. 

COUNSEL:
Robert J. Brent and John P. Poe, for the appellant.

1st. Yerby was an incompetent witness. He was called to sustain the plea of property in defendants, under a title vested in them by a deed from him and his co-partners. The validity of this deed was one of the main questions in the case, and he, as one of the grantors, was directly interested in establishing it. The effect and object of his testimony were, to negative the fraud which underlay the plaintiff's whole case, and by setting up his own deed, to appropriate, to the payment of his debts, the goods he had fraudulently obtained from the plaintiff. Nor was his incompetency removed by the releases executed, for his interest to pay his debts with the plaintiff's property, was, from its nature, one that he could not release to the trustees,  [**5]  nor they to him, and there is no release on the part of his creditors. 11 Md. 228, Williams vs. Banks.

2nd. No title to the goods passed by this deed, but the false and fraudulent representations, by which, alone, they were acquired, rendered the sale voidable. Such a sale confers no title upon the vendee, except at the option of the vendor, and none on the assignee of the vendee, unless such assignee be one, who, on the faith of such assignment, has, bona fide, and without notice, became the creditor of such fraudulent vendee. No such case is here disclosed. These trustees did not become the creditors of this firm upon the faith of this transfer to them, but are simply trustees, having no superior equities, and clothed with no higher rights than their assignors. They are not looked upon as purchasers for valuable consideration without notice, nor will even an antecedent indebtedness support such a title as against the innocent and defrauded vendor. 9 G. & J., 278, Powell vs. Bradlee. 12 G. & J., 341, Repp vs. Repp. 2 Kent, 689, note. 13 Wend., 570, Root vs. French. 2 Barb., 475, Leger vs. Bonnaffe. 6 Johns. Ch. Rep., 437, Haggerty vs. Palmer. 4 Sandf, Ch. Rep., 498, Addison [**6]  vs. Burckmyer. 17 New York Rep., 28, Griffin vs. Marquardt. 3 Gray, 550, Coghill vs. Railroad Company. 4 Whart., 500, Knowles vs. Lord. 2 Ired. Eq. Rep., 382, Woody vs. Litton. 16 Eng. Law & Eq. Rep., 408, Stevenson vs. Newnham. 34 Eng. Law & Eq. Rep., 607, Kingsford vs. Merry.

3rd. But even if a pre-existing indebtedness could support such an assignment, still the deed was inoperative, because of the renunciation of the trust by Sangston, one of the trustees. Hill on Trustees, 307, 308. Lewin on Trusts, 298, 398. 9 Sergt. & Rawle, 99, McCready vs. Guardians, &c. 1 Barn. & Ald., 608, Townsend vs. Wilson.

St. George W. Teackle and Wm. J. Ward, for the appellees.

1st. The releases restored the competency of Yerby if he was incompetent before. 2 G. & J., 132, Glenn vs. Von Kapff. 8 Gill 139, Smith vs. Morgan. 7 Md. 582, Pegg vs. Warford. 10 Md. 269, Scaggs' Case. 16 Md. 260, Crane's Case. His liability under the implied warranty to his vendees, was terminated by the release of the parties holding the title, and to whom such liability was due, and his interest in the residue after the application of the trust fund in the manner designated, was extinguished [**7]  by his release of all claim and interest in and to the entire property or estate conveyed, and in the residue thereof.

2nd. The deed specifically gives power, upon the renunciation by one to the two remaining trustees, constituting a majority to act. The words, "or a majority of them," necessarily apply to the trustees, and not to their personal representative or assigns, for they are directed forthwith to take possession. But in the absence of any such power expressly given, the two were empowered to act;--to require the joint action of all, the deed must expressly so provide. Hill on Trustees, 226. 9 Barn. & Cress., 307, Small vs. Marwood. 4 Ves., 97, Crewe vs. Dicken. 2 Swans., 365, Nicolson vs. Wordsworth. But the evidence shows, that Sangston accepted the trust and acted up to the very day this replevin was brought, and if so, he was properly made a party to this suit. Hill on Trustees, 221. 1 Anstr., 65, Richardson vs. Hulbert.

3rd. If fraud and false representations were established as alleged, though no title passed to Yerby or his firm, yet the plaintiff is not, therefore, entitled to recover against the defendants, although claiming under the deed and not otherwise;  [**8]  their claim as trustees simply is valid. A bona fide assignment of his property by an individual to a trustee, for the benefit of his fair creditors, is a valid sale and transfer of the property for a valuable consideration. 6 G. & J., 220, State vs. Bank of Maryland. If an insolvent merchant purchases goods not intending to pay for them, and after getting possession conveys them and all his other estate, in trust, for the payment of his debts, the trustee having no notice of the fraud, is a purchaser for value without notice. 13 Grattan, 427, Wickham, et al., vs. Lewis, Martin & Co. 6 Grattan, 268, Williams vs. Given. 16 Eng. Law & Eq. Rep., 408, Stevenson vs. Newnham. 12 Pick., 307, Rowley vs. Bigelow. 2 Pick., 184, Somes vs. Brewer. 6 Pick., 262, Smith vs. Dennie. 3 Caine's Case, 182, Hollingsworth vs. Napier. 5 Term Rep., 175, Parker vs. Patrick. The trustees here assumed responsibilities, expended time and money in the reception, removal, storing and arranging the trust property:--none of the creditors preferred by the deed became such after the sale and delivery of the goods--and each of the trustees was a creditor of the firm, and the claim, in large portion, of at least one [**9]  of them, arose since the purchases by the firm in 1854. Under such circumstances the title, it is submitted, passed to the trustees, and they are to be regarded as purchasers for value without notice of the fraud.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
COCHRAN 

OPINION:

 [*388]  COCHRAN, J., delivered the opinion of this court.
This suit was instituted by Frederick E. Ratcliffe, to recover certain articles of merchandise sold and delivered by him to the firm of Yerby, Tebbs & Yerby, upon representations alleged to have been false and fraudulent, made by George W. Yerby, one of its members, and which were assigned by that firm, in trust for the benefit of its creditors, to the appellees.
Two exceptions are presented in the record, the first of which was taken to the competency of George W. Yerby, who was examined as a witness by the appellees. The disqualifying interests, presumed from a possible residue of the trust estate after the payment of creditors, and resulting from the warranty implied by the deed of assignment, we think, were legally divested and extinguished by the mutual releases executed by him and the appellees.
The interest he was supposed [**10]  to have adverse to the appellant, was balanced by his primary liability for the goods in controversy, and, for that reason, could not affect his competency. His interest in having the property assigned, applied to the payment of creditors according to the preferences expressed in the deed, as well as that to be presumed, in others respects, from his relations to the parties in the case, might have affected his credibility, but not his competency. At the time he was offered as a witness, he does not appear to have had any interest 

 [*389]  sufficient to have rendered him incompetent, and, in our opinion, his evidence was properly admitted.
The other exception, taken to the rejection of the appellant's prayers, and to the instruction given by the court, embraces several propositions, a separate consideration of which becomes necessary.
The instruction asked in the first prayer, that the deed to the appellees did not authorise any number less than all of them to take possession of the property conveyed, and execute the trusts declared, we think was properly refused. The deed expressly provides, that the appellees, "their executors, administrators and assigns, the survivors or survivor [**11]  of them, his or their executors, administrators and assigns, or a majority of them," should forthwith take possession of the property described, &c., and, by a reasonable construction, implies, if it does not expressly declare, the power and authority of a majority of the appellees to execute its provisions. Where a conveyance of property is made to several persons as trustees and a part of them disclaim the trust, the others "will take not only the entire legal estate, but also all the power and authority requisite for the administration of the trust," unless the intention, that all the persons named as trustees shall act, be expressed or clearly implied from the conveyance. If, in such a case, the grantor use expressions showing that the execution of the trust, by any number less than all of the grantees named, was contemplated, the disclaimer of the trust by any one of them will not invalidate the deed, nor impair the power or authority of the others to execute the trusts declared. Hill on Trustees, 226, and authorities there cited.
The determination of the question, whether the appellee, Sangston, divested himself of the trust by the instrument executed for that purpose,  [**12]  is immaterial, as, in either case, the terms used in the deed, or the evidence of Hurst, showing that Sangston acted under it until this suit was instituted, fully justified the refusal of the instruction prayed.
The instructions sought by the second and fifth prayers, we 

 [*390]  think, were also properly refused, but as the propositions they present were not urged by the appellant, in the argument of the case, we forbear the expression of a more extended opinion upon them.
The proposition of the fourth prayer is substantially embraced in that presented by the third, and for that reason they will be considered together. The principle contended for in these prayers is, that goods assigned to a creditor, in trust for the benefit of creditors, by a vendee who purchased them upon fraudulent representations, may be reclaimed and recovered by the defrauded vendor, although the trustee may have received them from the vendee, under the deed, without notice of the fraud; or, in other words, that the voidable title of the vendee is not perfected in the hands of a trustee, by a deed of assignment for the benefit of creditors.
In the argument it was admitted, that although a vendor, in [**13]  such a case, might avoid a sale induced by false representations, and reclaim the goods sold, from the fraudulent vendee, the right would be defeated by an assignment or transfer of them for a valuable consideration, without notice of the fraud. There is no pretence of such a notice in this case, and the sufficiency of consideration for the deed, under which the appellees resist the claim of title asserted by the appellant, is therefore the only remaining point to be determined. We think the rule for ascertaining the sufficiency of consideration, in such a case, is well settled. Where the consideration for an assignment or transfer from a fraudulent vendee is such, that, after a reclamation and recovery by the vendor, the assignee or transferee would remain in the same condition as before the assignment or transfer, it is not sufficient. To make such an assignment or transfer valid against the defrauded vendor, something of value, in the way of property or money, should be given or advanced, some service rendered or liability incurred, on the faith and credit of the transfer, and as a present reciprocal consideration therefor. It follows, that a transfer of goods, by a fraudulent vendee, [**14]  in consideration of a pre-existing 

 [*391]  debt, confers no title as against the defrauded vendor, who may avoid the sale to the vendee, and recover the goods from the assignee or transferee. 13 Wend. 570. 4 Duer. 101. 6 Duer. 240. Powell vs. Bradlee, 9 G. & J. 220. We see no reason why an assignment of goods by a fraudulent vendee, for the benefit of his creditors, in consideration of his pre-existing indebtedness to them, should stand on a stronger ground or be governed by a different rule. An assignee, for the benefit of creditors, is not a purchaser for a valuable consideration. 17 N.Y. 28. For these reasons, the appellant, if he had the right to avoid the sale and recover the goods in controversy from Yerby, Tebbs & Yerby, before they were assigned, for fraud practiced in their purchase, would be entitled to recover them from the appellees afterwards, as the consideration for the assignment was not such as to constitute them bona fide purchasers for a valuable consideration, nor to perfect in them the voidable title of their assignors. In this view of the case, the objection to the [**15]  instruction given by the court is so apparent that a more particular notice of it is rendered unnecessary.
We think there was error in refusing the instruction asked in the third and fourth prayers, and also in that given by the court, and shall therefore reverse the judgment.
Judgment reversed and procedendo awarded. 

36 of 196 DOCUMENTS 

GEORGE U. GRAFF and AUGUSTIN GAMBRILL, vs. MERCHANTS and MINERS TRANSPORTATION COMPANY, Garnishee of BERNARD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 364; 1862 Md. LEXIS 23 

June 6, 1862, Decided 

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

Attachment on warrant, issued June 4th, 1857, at suit of the appellants, on a protested draft of L. Bernard for $ 600, endorsed by the plaintiffs. The writ commands the sheriff to attach the land, goods, credits, &c., of Bernard, "to the value of $ 602.18, current money, and cost of this attachment, according to the form of the Act of Assembly in such case made and provided," with the usual scire facias clause. The return, besides "attached as per schedule," states the writ was laid in the hands of several other parties, and, "also laid in the hands of the Merchants and Miners Transportation Company on the 5th day of June 1857," by service on its president, in the presence of two witnesses. The case against this company, as garnishee, was docketed, and judgment of condemnation nisi, for want of appearance, entered September 14th, 1857, the return day of the writ. This judgment as extended in the record, states that the garnishee makes default, and it is thereupon "adjudged," &c., "that the said garnishee hath in its hands goods and credits of the said defendant, to the value of the sum of money in the writ of attachment aforesaid [**2]  specified," and that the same "be condemned in its hands according to the Act of Assembly aforesaid, towards satisfying unto the said plaintiffs, as well the aforesaid sum of $ 602.18, in the writ of attachment aforesaid specified," as the costs, &c. On this judgment a fi. fa. was issued January 12th, 1859, and on the 4th of March following, the garnishee filed its petition asking that this judgment and execution be set aside, an appearance allowed, and the case brought up by regular continuances. The only reason for this action set forth in the petition, which need be stated, is, that the writ of attachment was not returned till November 10th, 1857, and the judgment was of a date prior to the return, and was therefore irregularly entered. On this point, and as to the time when the docket entries were made, as well as others, testimony was taken on both sides, the effect of which is stated in the opinion of this court. The court below (LEE, J.) on the 9th of March 1859, ordered the judgment and fi. fa. to be set aside, and the case brought up by regular continuances, and placed on the trial docket. From this order, the plaintiffs appealed, and before argument in this court, the appellee [**3]  moved to dismiss the appeal.  

DISPOSITION:
Judgment affirmed, and procedendo awarded.  

HEADNOTES:

An appeal lies from an order, passed after the lapse of the term, setting aside an execution, and striking out a judgment of condemnation, in an attachment case, and directing the case to be brought up by the entry of regular continuances: such a judgment was absolute and final.

Where the writ of attachment was not returned until after the return day, and the docket entries of the case, against the garnishee, were made, and judgment of condemnation entered, as of the return day, the entry of the judgment was entirely unauthorized and irregular, and justified the order to strike it out.

If such entries were made after the return of the writ, they constituted, to the extent of the judgment, a false record, and if made before, the garnishee was not then so in court as to authorize the docketing of the case against him, or entry of the judgment of condemnation. 

COUNSEL:
Wm. J. Ward, for the appellants.

Geo. M. Gill and J. Mason Campbell, for the appellee.

The motion to dismiss, was urged upon the ground that the judgment of condemnation nisi was not, under the circumstances, a final determination of the cause, and therefore the appeal was prematurely taken, and must be dismissed. 11 G. & J., 405, Keirle, et al., vs. Shriver. This case differs from that of Green vs. Hamilton, 16 Md. 317, in this, that the defendant had appeared in that case, and judgment by default had been entered against him, and subsequently an inquisition had been taken, and final judgment entered upon that inquisition, and the term at which the judgment had been entered had expired, and a motion was then made to strike it out, which the court below sustained, and an appeal was taken and held to be properly taken. In that case the judgment stricken out was final, and entered up in full, whilst in this, the judgment of condemnation nisi was entered, but never entered in full, and could not have been so entered until the property attached and delivered to the plaintiffs had been disposed [**4]  of;--then, and not until then, could a final judgment have been entered for the balance of the plaintiffs' claim.

On the part of the appellants it was insisted, as against the motion, that the judgment of condemnation, though called a judgment nisi, because the garnishee has the right to appear during the term, and have it stricken out, is improperly so called, and is in fact an absolute, unconditional judgment, and, after the lapse of the term, is final, and upon it execution may be issued as on any other judgment. Ev. Pr., 99. 17 Md. 505, Walters & Harvey vs. Munroe. Here the term had passed, and execution was issued on this absolute and unconditional judgment, and this execution, by the order appealed from, was quashed, and the judgment set aside on motion made after the term had elapsed. The reasoning of the court in Green vs. Hamilton, is conclusive of the right to appeal from such an order in such a case;--a serious injury would be sustained by the plaintiffs, if deprived of their judgment, and the chance of reaping its fruits, although they may eventually succeed in the cause.

The arguments upon the proof in the case, as to the time when the writ was returned,  [**5]  and the docket entries of the judgment were made, need not be stated.

It was also insisted, on the part of the appellee, (and this was the only point argued by Mr. Campbell,) that the judgment was irregular and entered without authority, because it assumed assets of the defendant to the amount of the plaintiffs' claim, to be in the hands of the garnishee. No power existed in the court, to make that assumption without proof; the only contingency in which, under our attachment laws, such a power is exercisable, is where the garnishee is in contempt for not answering interrogatories, (Act of 1795, ch. 56, sec. 5,) and expressio unius est exclusio alterius. To recover against a garnishee, assets must be shown affirmatively to be in his hands. Act of 1715, ch. 40, sec. 4 Drake on Attach., sec. 461. When a party sued is in default, the course is to take a judgment by default, if there is any thing in the case asserting his liability, but not otherwise, and then to assess the damages by an inquisition. Ev. Pr., 335. 7 Viner's Abr., 461, Default, pl., 3. 3 Bl. Comm., 274. Fitzherbert, 330, 390. In this case there was no averment any where of any kind, in the record, that the garnishee [**6]  owed the defendant any thing, or had any assets of the defendant in its hands. At the time of the publication of the original edition of Harris' Entries, the sheriff returned, "that he had attached property of the defendant to amount of the plaintiffs' debt in the garnishee's hands," and upon such a return only, did condemnation go where there was no appearance for the garnishee. 2 Harr. Ent., 79, 80, 164, 215, 216. This form of return, asserting property of the defendant to be in the garnishee's hands, still prevails, it is believed, in the counties, and it is only in the city of Baltimore that the practice has prevailed, of making the returns in the form used in this case. In England, under the custom of London, from which our attachment laws are derived, the plaintiff in order to get a judgment of condemnation against a garnishee, who does not appear, makes an express averment of assets in his hands. Locke on Foreign Attach., 80, 84. 3 H. & McH., 544, Campbell vs. Morris. The practice thus prevailing in the city of Baltimore, of returning attachments, simply, "laid in the hands" of the garnishee, without any averment that there is any property or credits of the defendant in his [**7]  hands, and then on his failure to appear taking judgment of condemnation for the whole amount of the plaintiff's claim, without any proof that the garnishee owed the defendant a single cent, or held a cent's worth of his property, with no inquiry or inquisition by a jury, is totally unwarranted by any provision of our attachment laws, and wholly unauthorized by the common law.

In reply to this it was argued on the part of the appellee, that the judgment assumes assets of the defendant to be in the hands of the garnishee, because the law assume such to be the case upon the non-appearance of the garnishee. The Acts of 1715, ch. 40, and 1795, ch. 56, fully authorizes such a judgment to be entered. They require a clause of scire facias to be inserted in the attachment, requiring the sheriff to make known to the garnishee, if to him it shall seem meet, to appear on the return day and show cause why the goods and credits so attached in his hands, should not be condemned. They confer on garnishees certain rights, give them full opportunity to appear and defend; require them to answer interrogatories if any are filed, but do not require such interrogatories to be filed unless the garnishee [**8]  appears. 17 Md. 196, Boyd's Case. From the moment of service of attachment, of its being laid in his hands, and witnesses to such act being called, he is solemly warned, if he have no funds or be not indebted, that he can appear and say so; he may or may not appear, and if he does not, the law which he is presumed to know, clearly indicates to him the consequences, viz: that there shall be condemnation, legal affirmation by necessary legal inference, that he has goods or is indebted as claimed, and that therefore, execution shall issue against him personally, or against his goods or otherwise, and compel him to account for the same. His course is clearly marked out by the law, which authorizes the attachment process, and he will appear or not at his own peril. It is not necessary under the provisions of these or any other laws of this State, or in accordance with any rule of the court below, or with the practice as long established in that court and its predecessor, or in any court in this State, to show by proof, assets in the hands of a garnishee, in order to recover against him where he fails to appear and plead. There is but one instance in which the law ever imposed it upon [**9]  the plaintiff to allege and thereby give prima facie evidence, that there is property, or are funds or credits of the defendant in the hands of the garnishee, and that was, where the plaintiff, for additional security, desired to hold the garnishee to bail; in such a case the plaintiff was required to make oath to that effect, by the Act of 1795, ch. 56, sec. 6.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH, and COCHRAN, J.  

OPINIONBY:
COCHRAN 

OPINION:

 [*369]  COCHRAN, J., delivered the opinion of this court.
This appeal was taken from an order setting aside a fieri facias, and striking out a judgment obtained by the appellants in a case of attachment against L. Bernard.
From an inspection of the docket entries contained in the record, it appears that the case against the appellee, as garnishee, was docketed, and judgment of condemnation nisi entered on the 14th of September 1857, the return day of the writ; that the fieri facias was issued on the judgment so entered, on the 12th of January 1859; that the petition of the appellee 

 [*370]  to strike out the judgment, was filed on the 4th, and the order of the court, striking out, passed on the 9th of March 1859. The [**10]  appellee filed its petition for striking out the judgment, because of certain irregularities in the mode of obtaining it. Before the argument, a motion was filed by the appellee to dismiss the appeal, on the ground, that the judgment was not so far final upon the claim in controversy, as to authorize an appeal from the order to strike it out. A determination of the character of the judgment, as to its regularity and conclusiveness, will therefore dispose of the questions presented by the record, and involved in the motion to dismiss.
In considering the motion to dismiss, we cannot look beyond the judgment itself. If it be found to ascertain and fix upon the appellee an adjudicated liability, and to conclude it of all right of defence, it would be unreasonable not to hold it so far final and conclusive on the claim, or right, in controversy, as to authorize an appeal on the part of one who loses the benefit of such a judgment, by an order striking it out.
Upon an inspection of the judgment as presented in the record, we do not think it open to question in this respect. It ascertains the amount of goods, chattels and credits, in the hands of the appellee, as garnishee, and condemns [**11]  the same towards satisfying the appellant's claim, in the usual form of an absolute judgment in such cases. It covers the whole of the appellant's claim, and until stricken out, was binding and conclusive upon the appellee. This fact is conceded by the appellee by filing its petition to strike out the judgment, in order that it might be enabled to appear and plead its proper defences, and try the case in due course of law. The lapse of the term at which the judgment was entered, concluded the right of the appellee to appear and plead, and the effort made by petition to strike out the judgment for irregularity, justifies the conclusion that it was otherwise final. The rule deduced from an examination of the cases involving this question, recognized in the case of Green vs. Hamilton, 16 Md. 317, we think clearly establishes the right of appeal claimed in this 

 [*371]  case. Upon a motion to dismiss the appeal, taken in that case from an order similar to the one under consideration, it was held, that the limitation against appeals, except in cases where the decisions of the courts below are so far final as to settle and conclude the rights involved in them, must [**12]  be understood as applicable to cases where the judgment appealed from is entered while the cause is in fieri, and not as embracing those where a plaintiff has obtained a final judgment and the term has passed. In the case of Walters & Harvey vs. Munroe, 17 Md. 501, this court said, that a judgment of condemnation nisi, entered on the call of the case, becomes absolute by the failure of the defendant to appear and defend during the term. That the judgment in this case was final, we think cannot be disputed. The appellee, by the petition to strike it out, took the most convenient, if not the only mode by which to bar its effect as such. Had the court refused to strike out the judgment, the appellee would have had the right to an appeal, and there seems to be no substantial reason why the appellants should not have the same right upon the order passed. In our opinion the appellants are entitled to a review of the action of the court below, and we therefore overrule the motion to dismiss.
The evidence contained in the record, upon which the question as to the regularity of the judgment must be determined, although not entirely harmonious, we think was sufficient [**13]  to justify the order to strike it out. In our opinion it establishes the fact, that the writ of attachment was not returned by the sheriff until the 10th of November 1857, nearly two months after the return day, when the case against the appellee appears by the docket entries to have been docketed, and the judgment of condemnation entered. Whether these entries were made before or after the return of the writ, is immaterial. If they were made after the return, they constituted, to the extent of the judgment, a false record, and if before, the appellee was not then so in court as to authorize the docketing of the case, or entry of the judgment. In either aspect, whether 

 [*372]  considered as involving the verity of the record, or the rights of the appellee, the entry of the judgment was entirely unauthorized and irregular. The question, whether the failure to ascertain the amount of the appellee's liability by an inquisition in a subsequent stage of the case, was an irregularity for which the judgment should have been stricken out, cannot affect the disposition of this appeal, and we therefore express no opinion upon it.
Under the circumstances, the order to strike out the judgment [**14]  must be affirmed and the case remanded, so that it may be brought up by regular continuances, and prosecuted according to the usual course.
Judgment affirmed, and procedendo awarded. 

37 of 196 DOCUMENTS 

BALTIMORE & OHIO RAIL ROAD COMPANY, Garnishee of CENTRAL & OHIO RAIL ROAD COMPANY, vs. GEORGE M. WHEELER and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 372; 1862 Md. LEXIS 24 

June 6, 1862, Decided 

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

Attachment on warrant, issued July 23rd, 1856, by the appellees, to affect the credits, &c., of the Central Ohio Railroad Company, and laid the next day in the hands of the Baltimore & Ohio Railroad Company, which appeared and pleaded nulla bona, and the case was tried October 6th, 1858.

Exception: The claim of the plaintiffs, (citizens of Massachusetts,) on three acceptances, amounting to $ 3,502.61, was admitted. It was also admitted, that the defendant, the Central Ohio Railroad Company, is a non-resident incorporation, incorporated by the laws of Ohio, and that paper O, furnished by the garnishee in response to the plaintiffs' interrogatories, truly represents the entire account between the garnishee and the defendant, between the periods embraced in the accounts therein stated. These accounts commence July 1st, 1856, and end September 8th, 1858, and appear to be settled monthly, the balances being always in favor of the garnishee, made up in part of cash advanced from time to time by the garnishee to the defendant. They further show, that when the attachment was laid, $ 49,411.87 were due the garnishee, and the latter [**2]  received on account of the defendant, during that month, (July 1856,) $ 34,118.11, carried to the credit of the defendant on the last day of that month, and on the 31st of August there is carried to the credit of the defendant $ 38,760.53, making for the two months a credit of $ 72,878.64, and that the total of such credits, from the date of the attachment to the day of trial, amounted to over $ 800,000, but the balances as before stated, were always against the defendant, and the final balance against it is $ 82,095.93. The garnishee offered the evidence, stated in the opinion of this court. The plaintiffs offered three prayers:

1st. If the jury find that the garnishee received on account of the defendant, the sum shown by the account produced, more than enough to pay the debt owing by the defendant to the garnishee at the date of the attachment laid, as shown by said account, and more than sufficient to pay the plaintiffs' claim, then it is the garnishee's right to apply the sums so received, to the payment in the first place of its own debt, due when the attachment was laid, and the balance is in the next place applicable to the plaintiffs' claim, and they are entitled to a [**3]  verdict against the garnishee for the amount thereof.

2nd. If the jury find the facts stated in the preceding prayer, and further, that the garnishee after the attachment was laid in its hands, paid over to the defendant large sums received by it, for the defendant, more than sufficient to pay the debt due by the defendant to the garnishee, at the time the attachment was laid, as shown by said account, and more than sufficient to pay the plaintiffs' claim, then the plaintiffs are entitled to a verdict for the amount thereof.

3rd. That the account between the garnishee and the defendant, given in evidence, shows that the garnishee has money or credits of the defendant more than sufficient to pay the plaintiffs' claim, and the plaintiffs are entitled to a verdict for the amount thereof.

These prayers, the court (LEE, J.) refused. The garnishee then offered the prayer stated in the opinion of this court, which the court refused, and gave the instruction also set forth in the opinion of this court. The garnishee excepted to the refusal to grant its prayer, and to the instruction granted by the court. The verdict was in favor of the plaintiffs for the amount of their claim,  [**4]  and from the judgment of condemnation thereon, the garnishee appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

A garnishee's liability for a defendant's property in his hands, is determined ordinarily by his accountability to the defendant for the property, and if by any pre-existing bona fide contract that accountability has been removed, or modified, the garnishee's liability is correspondingly affected.

Garnishment cannot have the effect of changing the nature of a contract between the garnishee and the defendant, or of preventing the garnishee from performing a contract with a third person; any other doctrine would lead to mischievous results.

Where the rights and credits attached depend upon mutual accounts between the garnishee and the defendant, the relation of debtor and creditor turns upon the terms and conditions on which their transactions were conducted.

A contract anterior to an attachment, bona fide, and for good consideration, between two railroad companies, whose roads connected and a system of through fare and freight established, that each should receive and advance for the other, the balances between them to be settled monthly, controls the attachment, and such contract may be implied or inferred, by, or from, a course of mutual dealing. 

COUNSEL:
J. M. Campbell, for the appellant.

1st. To show that there was a particular and uniform course of dealing between the two companies, for the whole period covered by the attachment, the monthly accounts between them were offered in evidence. From a glance at these accounts, it appears there is a continually recurring entry on both sides, of "freight and charges," and to explain this, which forms the great bulk of the account on either side, the garnishee offered in evidence, that the two roads meeting at the Ohio river, were used for through trade and travel, and that each receiving freight due the other, as well as itself, there were mutual accounts to be settled between them, for the receipts of each on the others behalf. With this explanation of a single, but constantly repeated item, the accounts show, that at the time the attachment was laid, the garnishee was in advance to and a creditor of defendant, for $ 49,411,87, and that every monthly settlement thereafter, down to the end of the account, the balance of the account was in favor of the garnishee. There [**5]  never, consequently, was any thing in the garnishee's hands to sustain the verdict, if the course of dealing between it and the defendant is correctly set out in the accounts. But the express admission is, that the account truly represents the transactions between the parties. Now what does the account show? That the accounts were settled, and the balance ascertained, monthly. What further? That during each month, notwithstanding the balance was constantly against the defendant, it had the right to advances from the garnishee, on account of the latter's receipts of freight and charges for the defendant. Modus et conventio vincunt legem. The parties made a law for themselves by their mutual course of dealing, and the plaintiffs coming in under one of them, are bound by the acts of that one, and must submit to the terms established by both. 1 How., 239, Bank of Metropolis, vs. New England Bank. The court below were therefore in error, in refusing the garnishee's prayer, which made the course of dealing between the parties, if found by the jury, the test of their rights and obligations inter se, and by consequence of the plaintiffs' claim which could only be founded thereon.

2nd.  [**6]  But the court's instruction was also erroneous. Coupling this instruction with the refusal of the garnishee's prayer, how could the jury do other than assume, that the course of dealing between the parties was no evidence of such a contract, or agreement, as the instruction contemplated? But even if they were not so misled, the instruction was radically vicious. They were not told that such an agreement might be implied, and were necessarily shut up, therefore, to find an express agreement. It is not easy to say, to what period the word, "former," refers, and what is the meaning of the words, "appropriate the same." The burthen of proof, moreover, was not on the garnishee: the affirmative of the issue was on the plaintiffs, and as the evidence of receipts was not of receipts by themselves, but of receipts in an account which embraced charges on both sides, it was incumbent on the plaintiffs to show, that the counter charges did not affect their claim on the receipts.

F. W. Brune, for the appellees.

1st. The prayers presented by the appellees should have been granted. The account is admitted to be correct, and after payment of the garnishee, shows credits much more than sufficient [**7]  to pay the plaintiffs' claim, for which the garnishee was, therefore, clearly liable, according to the principles of our attachment laws.

2nd. The appellant's prayer was properly rejected. No course of dealing between garnishee and defendant can prevent the operation of an attachment on credits which come into the hands of a garnishee, because all credits in the hands of a garnishee up to the date of the verdict, are liable to attachment, and not merely a balance of account, and because such a construction would entirely defeat the operation of the attachment laws, and lead to fraudulent arrangements between garnishees and defendants.

3rd. The instruction of the court, although erroneous, could inflict no injury on the appellant, but was more favorable to it, then it was entitled to, and the error is therefore no ground for reversal. There is no evidence of such a pre-existing contract or equitable agreement as the court refers to, and if there were it could not defeat the operation of the attachment.

In support of these positions see Act of 1795, ch. 56, secs. 1, 5, 6. Hinkley's Attach., 110. 4 H. & J., 355, Allstan vs. Contee. 3 G. & J., 472, Bosley vs. Ches. Ins.  [**8]  Co. 4 Gill 499, Poe vs. St Mary's College. 5 Gill 420, Somerville vs. Brown. 2 Md. 74, Keener vs. Harrod, et al. 7 Md. 287, Kerr vs. Boston & Sandwich Glass Co. Drake on Attach., 517, and cases there cited. 1 Amer. Lead. Cases, 155, 290, 291. 1 Merivale, 608, Clayton vs. Case. 2 Barn. & Ald., 39, Bodenham vs. Purchas.  

JUDGES:
The cause was argued before BOWIE, C. J., BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
BOWIE 

OPINION:

 [*377]  BOWIE, C. J., delivered the opinion of this court.
The garnishees, to support the issue on their part, offered in evidence that the Baltimore and Ohio Rail Road and the Central Ohio Rail Road approach each other on opposite banks of the Ohio river, at Benwood and Bel Air, a few miles below the city of Wheeling, and that goods and passengers, intended for transportation on both roads or parts of both of them, are transferred in either direction from one road to the other, by being carried across the Ohio by suitable ferry boats at Benwood and Bel Air aforesaid. That when the Central Ohio Rail Road was opened for trade and travel, it began to be used for through travel and trade; the Baltimore and Ohio Rail Road Company receiving from passengers [**9]  and for goods to be transported from points on the Baltimore and Ohio Rail Road, to points on the Central Ohio Rail Road, or beyond, the fare or toll due to the Central Ohio Rail Road Company, and the latter company receiving in like manner, the fare and toll due the Baltimore and Ohio Rail Road Company, when the passengers or goods were forwarded eastward from points on the Central Ohio Rail Road. In this way, there were mutual accounts to be settled between the said companies, for the receipts of each on the other's behalf, and these accounts, as they stood from the month in which the attachment was laid, (24th of July 

 [*378]  1856,) were exhibited in response to the plaintiffs' interrogatories in the paper marked O, which, it was agreed, truly represented the entire account between the periods embraced in the said account, and, by agreement of counsel, was accepted as an answer to the interrogatories.
The appellees, (the plaintiffs below,) offered three prayers, which were refused, whereupon the appellants submitted the following instruction: "If the jury shall find from the evidence that before and at the time, and since the issual of the attachment in this case, there was [**10]  a particular course of dealing between the Baltimore and Ohio Rail Road Company, garnishee, and the Central Ohio Rail Road Company, defendant, and that according to the course of dealing between them, there was not, at the time the attachment was issued or laid, and has not been since, any balance of account, owing by the Baltimore and Ohio Rail Road Company to the Central Ohio Rail Road Company, then, that the plaintiffs are not entitled to recover." Which instruction the court refused to give, but gave the following instruction: "If the jury find credits to the amount of the plaintiffs' debt, in the hands of the garnishees, they are entitled to recover, unless the jury also find the payments made by the garnishees were in virtue of some former pre-existing contract, or equitable agreement made by the garnishees, to appropriate the same, and it is incumbent on the garnishees to show, the existence of such pre-existing contract or equitable agreement." From which refusal to grant the instruction prayed for by the garnishees, as well as from the granting of that framed by the court, this appeal is taken.
Attachments upon warrant, under the Act of 1795, ch. 56, have been allowed great [**11]  latitude, in their operation upon the rights and credits of defendants, so much so, as in the opinion of very distinguished and experienced jurists, to impede the negotiation of commercial paper:--Vide Dorsey's opinion in Somerville vs. Brown, 5 Gill 399, 403.
The liability of a garnishee in respect of property of a defendant 

 [*379]  in his hands, is to be determined, ordinarily, by his accountability to the defendant on account of the property. If by any pre-existing bona fide contract, that accountability has been removed or modified, it follows that the garnishee's liability is correspondingly affected, for it is well settled, that garnishment cannot have the effect of changing the nature of a contract between the garnishee and the defendant, or of preventing the garnishee from performing a contract with a third person: any other doctrine would lead to mischievous results. Drake on Attach., sec. 517.
This principle is recognized by the decision in the case of Poe vs. St. Mary's College, where it was held, that the funds attached being deposited in the hands of the garnishee for a specific purpose, in advance, whether they belonged to the defendant [**12]  or not, were not subject to the attachment. "Money deposited under such an agreement and for such purposes, cannot be attached as goods, even of the person depositing them, and the garnishees would have been guilty of a breach of trust if they had appropriated such funds to the payment of debts due from the father in this case, and then have deprived the scholars of the education which they undertook to give them, in consideration of the payments in advance to them." 4 Gill 503. Where the rights and credits attached depend upon mutual accounts between the garnishee and the defendant, the relation of debtor or creditor turns upon the terms and conditions on which their transactions were conducted.
If, upon the adjustment of their accounts, in their usual course of business, a balance appears in favor of either, that balance is a credit subject to attachment. Had a special written contract existed between the garnishees and the defendants, that they should reciprocally receive and advance for each other, in consideration of the relative position of their roads, to increase the public accommodation and enlarge their profits, the balances between them to be settled monthly [**13]  or annually, no doubt could be entertained that the attachment would be 

 [*380]  controlled by the contract. An implied agreement established by a course of mutual dealing, it is apprehended would have the same effect. It is immaterial how the contract was made, if it was anterior to the attachment, bona fide and for good consideration.
As between a factor and his principal, the former has a lien for the amount advanced either on the particular consignment or the balance of his general account. Livermore on Agency, 261. Should an attachment be laid in such case, on the rights and credits of the principal, the lien would depend upon the balance, on the settlement between them, not on the fact, that at any given time subsequent to the laying of the attachment, or before, the garnishee had received funds of the defendant. This is illustrated by the case of the Bank of the Metropolis vs. New England Bank, 1 How. 234. The Bank of the Metropolis, had been for a long time dealing and corresponding with the Commonwealth Bank of Massachusetts. An account current existed between them, in which they mutually credited each other with the proceeds of all paper remitted [**14]  for collection, when received, and charged all costs of protest, postage, &c. The balance was sometimes in favor of one, and sometimes of the other. On the 24th November 1837, the Bank of the Metropolis was debtor to the Commonwealth Bank $ 2200, and in the latter part of the year 1837, or January 1838, when notice of the failure of the latter was received, the Commonwealth Bank was indebted to the former $ 2900. The Commonwealth Bank transmitted to the Bank of the Metropolis for collection, sundry drafts and notes, which would fall due in February, March, April, May and June, endorsed in the usual way. On the 13th of January 1838, the Commonwealth Bank failed, and its cashier wrote to the Bank of the Metropolis, to hold the paper forwarded as above, subject to the order of the cashier of the New England Bank, it being the property of that institution. The action was brought by the New England Bank for the whole amount of the notes. It was in proof that the Commonwealth Bank never at any time owned the notes, &c. 

 [*381]  Mr. Chief Justice Taney, in delivering the opinion, said: "If the notes remitted had been the property of the Commonwealth Bank, there would be no doubt of the [**15]  right to retain; because it has been long settled, that wherever a banker has advanced money to another, he has a lien on all the paper securities which are in his hands for the amount of his general balance, unless such securities were delivered to him under a particular agreement. The paper in question was, however, the property of the New England Bank, and endorsed to the Commonwealth Bank for collection, without any consideration, and as its agent in the ordinary course of business, it being usual and necessary, so to endorse it, in order to enable the agent to receive the money. *** If an advance of money had been made upon this paper to the Commonwealth Bank, the right to retain, for that amount, would hardly be disputed. We do not perceive any difference, in principle, between an advance of money and a balance suffered to remain upon the faith of these mutual dealings. In the one case as well as the other, credit is given upon the paper deposited, or expected to be transmitted in the usual course of the transactions between the parties. There does not, indeed, appear to have been any express agreement that those balances should not be immediately drawn for, but it may [**16]  be implied from the manner in which the business was conducted; and if the accounts show that it was their practice and understanding, to allow them to stand and await the collection of the paper remitted, the rights of the parties are the same as if there had been a positive and express agreement; and such mutual indulgence on these balances would be a valid consideration; and like the actual advance of money, give the plaintiff in error, (the Bank of the Metropolis,) a right to retain the amount due on closing the account. *** If, therefore, the jury find that the course of dealing between the Commonwealth Bank and the bank of the Metropolis, was such as stated in the bill of exceptions, then the plaintiff in error, (the Bank of Metropolis,) is entitled to retain for the amount due on the settlement of the account." 1 How. 238 to 240.

 [*382]  So where railroads or canals, or other companies for the transportation of freight or passengers, have a connection and mutual dealings between them, for the promotion of their business, or public convenience, the relation of debtor or creditor must depend upon the course of that dealing.
The connection between [**17]  coterminous lines of travel and transportation, cannot be maintained, unless agreements of this kind are recognized and sustained. The public convenience is greatly promoted by them, commercial relations, and social intercourse, are intimately interwoven with them. The net work of railroads, which checquers the country, is linked by such arrangements, and their usage, and course of dealing, must modify and control their liability to each other, as much as the usage and course of dealing of any other portion of the commercial world.
The law of the case was, in our opinion, correctly expressed in the prayer of the garnishees, and there was error in rejecting it. Although the instruction afterwards given to the jury, by the court, embraced, to some extent, the same proposition, yet it is susceptible of being so construed, as to place upon the garnishees the onus of proving an express pre-existing contract, or agreement, with the defendant: whereas, the rights of the parties depended upon the mutual relations existing between them, and may be determined or inferred from the course of dealing between them, as shown by the account and other evidence in the cause.
Considering there [**18]  was error in refusing the prayer of the garnishees, the judgment of the Circuit court will be reversed.
Judgment reversed and procedendo awarded. 

38 of 196 DOCUMENTS 

MERCHANTS AND MINERS TRANSPORTATION COMPANY, vs. The MAYOR & CITY COUNCIL OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 359; 1862 Md. LEXIS 22 

June 5, 1862, Decided 

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

Action brought September 14th, 1858, by the appellees against the appellant, to recover the sum of $ 443, amount of harbor duties or port tonnage of two cents per ton, imposed by the plaintiffs upon the "William Jenkins and Joseph Whitney," two steam ships of the defendant, from March 1857, to January 1858, under the Act of 1791, ch. 60, assented to by Acts of Congress with the proviso "that nothing herein contained, shall authorise the demand of a duty on tonnage on vessels propelled by steam, employed in the transportation of passengers."

Exception: The plaintiffs proved that, the steamers in question belong to the defendant, were propelled by steam and engaged in the transportation of passengers and freight between Baltimore and Boston, that they were built principally for freight, and have saloons on deck, in which they carry passengers, and that at least three-fourths of their business is a freight business.

The defendant proved that these steamers when built, were fitted up for passengers and freight, and that the accommodation for passengers has been increased from time to time, to meet the wants of the public, and at one [**2]  time at an expense of $ 7000, that ordinarily they have accommodations sufficient for all passengers who offer, and that they have carried from sixty to seventy each at a time, that the number of passengers is largest in summer, and the average proportion between freight and passengers is from two-thirds to three-fourths for freight and the balance for passengers; that the company advertises for passengers for each trip, and the steamers have all suitable and necessary accommodations for them, and at all times carry passengers which is a part of their regular employment and business at all seasons of the year.

A prayer was then offered by the defendant to the effect, that under the facts thus stated, if found by the jury, the plaintiffs are not entitled to the tonnage duty claimed. The court, (MARSHALL, J.,) rejected this prayer and the defendant excepted and appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The Acts of Congress, assenting to the law of this State, of 1791, ch. 60, imposing tonnage dues on vessels arriving in the port of Baltimore, contains a proviso, that such tonnage dues shall not be imposed "on vessels propelled by steam, employed in the transportation of passengers." HELD:

That this proviso extends only to steam vessels whose chief, or principal, employment, is the transportation of passengers; it does not extend to such vessels, whose general and principal employment, is the transportation of freight, and not passengers, though, at the same time, carrying passengers. 

COUNSEL:
Geo. M. Gill for the appellant.

The main question in this case is as to the meaning of the terms of the proviso, to the Acts of Congress assenting to the Act of 1791, ch. 60. It says, this tonnage duty shall not be levied "on vessels propelled by steam, employed in the transportation [**3]  of passengers." These vessels of the appellant were propelled by steam, and were employed in the transportation of passengers, but they were also employed in the transportation of freight. The language of the proviso is certainly applicable to them, unless it be considered as applying only to those vessels, which are exclusively employed in the transportation of passengers. If a steamboat is used for freight, and for the purpose of avoiding the tax or duty, carries passengers, the exemption would not apply, but if it is built and equipped in good faith, as these vessels were, to carry both passengers and freight, and is used in good faith for both purposes, there the exemption does apply. The tax here imposed is not a general tax or burthen, but a special tax upon a particular species of property, and for a special purpose, and a limited object. Laws imposing duties upon the public are to be strictly construed. Dwarris on Stat., 749. Statutes for the encouragement of trade and inposing forfeitures will be construed in favor of the public, and the forfeitures not enforced unless expressed in plain terms. Dwarris, 743. The obvious purpose of the proviso was to encourage and develop the [**4]  transportation of passengers by steam vessels, and it should be liberally construed in their favor.

But Congress never gave its assent to the Act of 1796, ch. 68, sec. 9, which changed and took away the power of the port wardens to levy this tax, and vested it in the Mayor and City Council of Baltimore. None of the Acts of Congress refer to this Act of 1796. This point, though not expressly raised, is yet covered by the prayer, and is involved, and truly involved, in the case.

John L. Thomas and G. L. Dulany, for the appellees.

This proviso was meant to apply to such vessels only, as were employed exclusively, in the transportation of passengers, or at least to those, only, whose chief business it is, to carry passengers, and not as an incidental act to some other employment. It was no doubt intended to foster and encourage such steam vessels as would engage to carry passengers without regard to freight, because of the better accommodation of the traveling public, and a desire to encourage such enterprise, then in its infancy. There can be no doubt that steam vessels carrying freight, are chargeable with this duty. If then, they carry both freight and passengers, how [**5]  can they be exempt? The word, "employed," confirms this construction. To be employed in any thing or transaction, is to be devoted to that object. As soon as freight becomes an object, and as long as it is transported, the vessel ceases to be employed in transporting passengers. That freight was an object, and the chief and main object of the employment of these vessels, is shown by the evidence in the case. If the construction of the appellant is the true one, the tonnage dues would be a dead demand, as every vessel now propelled by steam and engaged in carrying freight, also carries passengers. If the law had designed to exempt steamers carrying both freight and passengers, it would have said so, but omitting freight, and including passengers, it must have intended to exclude the idea that a vessel employed in carrying both, was exempted.

The question of the non-assent of Congress to the Act of 1796, was not raised in the court below, and cannot, therefore, be raised here. But the purpose of the law of Congress was, manifestly, to invest the State of Maryland with power to levy this tax without reference to the agents by which it was to be executed.  

JUDGES:
The cause was argued [**6]  before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
COCHRAN 

OPINION:

 [*362]  COCHRAN, J., delivered the opinion of this court.
The determination of this appeal depends upon the construction of the Act of Congress of 1814, ch. 119, extended by 

 [*363]  subsequent Acts to the 3rd of March 1861, assenting to the imposition and collection of tonnage dues, not exceeding two cents per ton, on vessels arriving in the port of Baltimore, as authorized by the Act of Assembly of 1791, ch. 60. The power to impose and collect the tonnage dues, vested in the port wardens by the Act last mentioned, was, by the Act of 1796, ch. 68, sec. 9, transferred to, and vested in, the Mayor and City Council. The Act of Congress qualified the assent, given for the imposition and collection of dues, as provided by the Act of Assembly, by a proviso, that nothing in the Act contained should "authorize the demand of a duty on tonnage on vessels propelled by steam, employed in the transportation of passengers." The tonnage dues, for the recovery of which this suit was brought, were imposed by the Mayor and City Council upon the steam vessels of the appellant employed in transporting freight and passengers, between [**7]  the ports of Boston and Baltimore. Payment of the dues, thus imposed, was resisted by the appellant, on the ground, that its vessels were exempted from liability by the proviso of the Act of Congress, and the question presented is, whether the vessels thus employed in transporting freight and passengers, are exempted from liability by that proviso?
This provision of the Act of Congress was apparently designed to encourage the development of a general system of passenger transportation by vessels propelled by steam. Construing the proviso by this apparent intent, it would not be held to embrace within its operation steam vessels employed in transporting both freight and passengers; but adopting a more liberal rule, the words, "employed in the transportation of passengers," contained in the proviso, should be understood as descriptive, in a general sense, of the substantial or chief employment of vessels to be exempted. considered as words of general and not of particular description, their use to designate the employment of vessels engaged in transporting passengers and freight, would be proper only in cases where the transportation of passengers is the chief or principal [**8]  employment, and, 

 [*364]  understood in that sense, it follows, that no vessel propelled by steam can be exempted from tonnage dues by the proviso, unless its main or principal employment be that of transporting passengers. We have then to inquire whether the employment of the appellant's vessels was generally described by the terms of the proviso? The evidence contained in the record shows, that their general and principal employment was the transportation of freight and not passengers, that the freight exceeded the passenger transportation in the proportion of three to one. We do not think that vessels so employed were contemplated by, or are within the spirit and meaning of, the proviso.
Upon our understanding of the terms used in the Acts of Congress, and of the evidence in the case, we must affirm the judgment.
Judgment affirmed. 

39 of 196 DOCUMENTS 

FELLS POINT SAVINGS INSTITUTION OF BALTIMORE, vs. JAMES C. WEEDON, Adm'r of GEORGE F. ALLEN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 320; 1862 Md. LEXIS 18 

June 4, 1862, Decided 

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

Action brought April 2nd, 1858, by the appellee against the appellant, to recover $ 500 with interest, which sum was deposited in the Savings Institution by the plaintiff's intestate. At the time of the deposit a certificate in the following form was issued and delivered to him therefor:--

"$ 500.   BALTIMORE, May 19th, 1854.

"George F. Allen has deposited in the Fells Point Savings Institution of Baltimore, the sum of five hundred dollars, which sum, with interest at the rate of three per cent. per annum, will be paid to him or to his order on demand, and on returning this certificate."

Several exceptions were taken at the trial, but by an agreement filed in this court, it was "agreed to try this cause as if issues had been regularly and properly joined in the court below:--all mere formal defects in reference to pleadings and evidence, are hereby waived: the object is to determine by this appeal the question, whether the appellee, as administrator, is entitled to recover the amount deposited in the hands of the defendant by Allen, without actual production of the certificate at the trial of the case."

The [**2]  evidence shows that letters of administration on Allen's estate, were granted to the plaintiff, May 4th, 1855, by the orphans court for Baltimore city; that Allen was reported to be dead, and a merchant of New York city addressed a letter to the treasurer of the defendant, stating, that he was in possession of Allen's effects and of this certificate of deposit, but did not say he had taken out letters of administration nor pretend that the certificate was endorsed or assigned; that after grant of his letters, the plaintiff made demand on the defendant for payment, acknowledging that he was not in possession of the certificate, and the defendant refused payment unless the certificate was produced, and refused all applications for payment, because none of the parties making them were in possession of letters of administration and of the certificate; that a party from New York city demanded payment, representing himself as administrator of Allen, and exhibiting documentary evidence of his appointment by a court of that State, but this demand was refused, because the claimant was not, and admitted he never had been, in possession of the certificate; that the money had never been paid,  [**3]  and the defendant admitted itself indebted for the same, and was ready and willing to pay to any person who could show himself entitled by law to receive it, and who was competent to give therefor a valid release and acquittance; that Allen had never made a personal application for the money, and was reported to have died at sea, but the date of his death is unknown. The defendant asked several instructions in substance as follows:--

1st. If the jury find that Allen made the deposit on the 19th of May 1854, and received a certificate therefor on that day, in the form stated in the evidence, and that such certificate was then issued and delivered to him by the defendant, then the plaintiff's remedy is barred by limitations.

2nd. If the jury find the facts stated in the preceding prayer, and that said certificate has not been lost or destroyed, but is now held by another person than the plaintiff, then he is not entitled to recover.

3rd. If the jury find the facts stated in the preceding prayers then the plaintiff is not entitled to recover without producing said certificate to be cancelled.

4th. That the plaintiff is not entitled to recover upon the pleadings and [**4]  evidence in the cause.

The court (LEE, J.) refused these instructions as prayed, and instructed the jury, that if they shall find from the evidence in this cause, that the plaintiff's intestate is dead, and that the fund deposited in his lifetime in the Fells Point Savings Institution of Baltimore, is still deposited there, and that no claimant or personal representative of the intestate Allen has, since May 1854, produced the certificate to the said savings institution as either received amongst his effects or held by endorsement, and shall further find that proper letters of administration have been taken out and granted to the plaintiff in this case, then he is entitled to recover as administrator of said Allen.

The defendant excepted to the refusal of its prayers, and to the instruction granted by the court, and the verdict and judgment being against it, appealed.  

DISPOSITION:
Judgment reversed, with leave to appellee to take out procedendo.  

HEADNOTES:

Limitations on a promissory note, payable on demand, run from its date, and not from the time of demand, but, on a certificate of deposit, payable, with interest, on demand, on return of the same, only from the time of demand actually made.

A certificate of deposit in a savings bank, payable to the depositor, or order, on demand, and on return thereof, is a negotiable instrument, and on demand of payment the bank has the right to insist, that the certificate shall be produced and delivered up, as its voucher of payment, and security against any future claim.

Where the administrator of the depositor, in such a case, sues the bank, at law, for the deposit, and the certificate is shown to be in the possession of a third party, and there is no proof that the depositor did not endorse it in his lifetime, the plaintiff cannot recover without producing the certificate.

Where a party is called on to pay a lost negotiable bill or note, the loss and consequent non-production, constitute a good defence at law.

Where, from the character, or want of negotiability, of the instrument, at the time of loss, the debtor can set up any equitable defence against a subsequent bona fide holder, claiming through the finder, a court of law may exercise jurisdiction, but in all other cases the only remedy is in equity.

A prayer, that the plaintiff is not entitled to recover upon the pleadings and evidence in the cause, is too general in its terms since the Act of 1825, ch. 117.

A prayer, that if the jury find "that the fund deposited" is still in bank, and that proper letters of administration have been taken out and granted to the plaintiff," &c., is defective in assuming the fact of deposit, and in leaving to the jury a question of law.

Where an instruction is granted by the court, after rejecting the prayers offered by counsel, it is defective, unless it declares the law upon the points raised by the counsel, in terms explicit and intelligible to the jury.  

COUNSEL:
Jas. Malcolm and C. L. L. Leary, for the appellant.

1st. The appellee's claim is barred by limitations:--the certificate is payable on demand, and limitations began to run from its date. 7 H. & J., 14, Ruff vs. Bull. 9 Pick., 490,  [**5]  Little vs. Blunt. 13 Wend., 267, Wenman vs. Mohawk Ins. Co.

2nd. The evidence shows that the certificate is in existence and in the possession of a third person, who is therefore prima facie, entitled to the fund. 4 Ind., 522, Bush vs. Seaton. The court will therefore protect the defendant against the danger of being compelled to make more than one payment of the same debt, by requiring the plaintiff to produce the certificate or account for its non-production. This is the established rule, applicable to the negotiable notes and bills in the ordinary form. Story on Prom. Notes, secs. 106, 107, 108, 445, 446, 448. 7 Barn. & Cress., 90, Hansard vs. Robinson. 3 Cowen, 303, Rowley vs. Ball. 2 Hill, 482, Smith vs. Rockwell. 3 Wend., 344, McNair vs. Gilbert. 2 G. & J., 508, Glenn vs. Smith. 10 Johns., 104, Pintard vs. Tackington. That the certificate in question is a negotiable instrument, see 14 Conn., 363, Kilgore vs. Bulkley. 2 Hill, 295, Bank of Orleans vs. Merrill. 13 How., 218, Miller vs. Austen. But even if it be non-negotiable, still it is a written contract between the payee and the defendant, subject to the ordinary rules of construction, and as the return of the certificate [**6]  is expressly stipulated in the contract, as a condition precedent to the payment of the fund, the plaintiff's right to recover is dependent upon its production. 5 Duer, 69, Warhus vs. Bowery Savings Bank. If these views are correct, the appellant's second and third prayers should have been granted.

3rd. The instruction given by the court is manifestly erroneous, not only as in conflict with the views above expressed, but for assuming the fact of the deposit of the money; for being confused, uncertain, and calculated to mislead the jury; and by leaving it to them, to find whether proper letters of administration had been granted to the plaintiff, a matter either of law for the court, or not inquirable into in this proceeding, by either the court or jury. 2 H. & G., 49, Raborg vs. Hammond. 6 Md. 112, Cook vs. Carroll.

N. Williams and Wm. Schley, for the appellee.

1st. Limitations do not apply. The money was payable on demand and on return of the certificate, and though the certificate is dated May 19th, 1854, no demand is shown to have been made by the intestate in his lifetime, nor was any made by the plaintiff until after he had received letters of administration,  [**7]  and as these letters bear date May 4th, 1855, and the suit was brought April 2nd, 1858, the cause of action necessarily accrued within three years before suit brought.

2nd. The second prayer rests simply upon the ground, that the certificate had not been lost or destroyed, and was held by some other person than the plaintiff, raising no question whether it had been endorsed or assigned, or whether the holder was a bona fide holder or not, or holder for value or not. The third prayer asserts, that the plaintiff could not recover without producing the certificate to be cancelled. These prayers were properly rejected. No holder could, by possession of the paper, without more, have any title to the money. 7 G. & J., 468, Lancaster vs. Baltzell. 1 Md. 504, Hunter vs. Van Bomhorst. The actual production of the paper at the trial is not necessary in all cases, and was not in this. Byles on Bills, 281, 285. Chitty on Bills, 268. Smith's Merc. Law, 270, and cases there cited. A party may go upon the original consideration, and show good cause for the non-production of the bond or note. 16 Ves., 430, Mossop vs. Eadon, 4 Bing., 273, Rolt vs. Watson. Smith's Merc. Law, 355 to 358. 10 [**8]  Adol. & Ellis, 616, Wain vs. Bailey.

3rd. The fourth prayer is too general. 3 G. & J., 369, Penn vs. Flack. 7 Gill 343, Wheeler vs. The State.

4th. If the facts stated in the instruction of the court were found by the jury, then no other person than the plaintiff was entitled to the money, and as the defendant was liable to the person entitled, it was right to instruct the jury hypothetically, that the plaintiff, as administrator, was entitled to recover.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*326]  GOLDSBOROUGH, J., delivered the opinion of this court.
The appellee brought this action to recover the amount of a certificate of deposit, issued by the appellant to George F. Allen, alleging, in his declaration, appellant's indebtedness to appellee's intestate.
To the two counts in plaintiff's declaration, one for money had and received, the other, for money lent by plaintiff's intestate, the defendant pleaded three pleas: 1st, that it was never indebted as alleged; 2nd, the statute of limitations; 3rd, a special plea; to which the plaintiff demurred. The court passed no judgment on the demurrer.
By an agreement,  [**9]  filed in the cause, the question is submitted to this court, whether the appellee, as administrator, is entitled to recover the amount deposited in the hands of the appellant, without the actual production of the certificate at the trial, all mere formal defects in pleading and evidence being waived.
The exceptions to the evidence offered by the appellee being waived by the agreement mentioned, we proceed to consider the ruling of the court in rejecting the four prayers of the appellant, and the instruction given by it to the jury, which constitute the third exception.
The first prayer was, in our opinion, properly rejected. Though on a bill or promissory note, payable on demand, the statute of limitations runs from the date of the instrument, and not from the time of demand, (see Byles on Bills, 273, and the authorities there cited, also 7 H. & J. 14,) this rule does not apply to the case before us. Here the certificate of deposit has attached to it a condition, that the amount deposited is payable on the return of the certificate: and the appellant is, in fact, resisting the recovery of the claim upon the ground, that this condition is not complied with.
The inducement [**10]  for this deposit was, for the accumulation of interest, and the obligation of the appellant, stated on the fact of the certificate, is to pay the principal when demanded, with interest:--upon such a contract the statute cannot be held to run, until the demand has been actually made.

 [*327]  The second and third prayers embrace, substantially, the same proposition, and controlled by the agreement above mentioned, will be considered together.
The certificate of deposit, in question, was so drawn, that the amount mentioned therein was payable to George F. Allen, or order, on demand. Such an obligation has been held negotiable. See 14 Conn. 363; 2 Hill, 295; and 13 How. 218. This last case was upon a certificate of deposit, similar, in its import, to the one in question. The Supreme Court say: "the established doctrine is, that a promise to deliver, or to be accountable for, so much money, is a good bill or note. Here the sum is certain and the promise direct. Every reason exists why the endorser of this paper should be held responsible to his endorsee, that can prevail in cases where the paper is in the ordinary form of [**11]  a promissory note; and, as such note, the State courts generally have treated certificates of deposit payable to order." Viewing, therefore, this certificate as having the attributes of a negotiable promissory note, the appellant would have a right, upon demand of payment, to insist that the certificate should be produced, and delivered up, as its voucher of payment, and as its security against any future claim.
By the recent English authorities it seems to be settled, that where one is called on to pay a lost negotiable bill or note, the loss, and consequent non-production, constitute a good defence at law. See Smith's Mercantile Law, 356, and note. And the American authorities there cited, generally support the doctrine, that when an instrument is lost, upon which, either from its original character, or want of negotiability at the time of the loss, the debtor could set up any equitable defence against a subsequent bona fide holder, claiming title through the finder, the jurisdiction may be properly exercised at law, but in all other cases, the only remedy is in chancery. See, also, 3 Cowen 303; Story on Prom. Notes, sec. 546.
The certificate [**12]  of deposit involved in this suit, being shown by the evidence to be in the possession of a third party, that 

 [*328]  party may, in the absence of proof, to show that it was not endorsed by Allen in his lifetime, have a legal right to demand the payment of it. The appellant is, therefore, entitled to be protected against the danger of being compelled to make more than one payment of the same debt, by requiring the appellee to produce the certificate.
For these reasons we think that the second and third prayers of the appellant should have been granted. The appellant's fourth prayer was properly rejected, as it is too general in its terms since the Act of 1825, ch. 117; see 5 G. & J. 519. The instruction, given by the court, is not only objectionable, because it assumes that the fund was deposited there, by taking from the jury the finding of that fact, but it also puts to the jury to determine the character of the letters of administration, a question of law to be decided by the court. The instruction is also defective in not declaring the law in terms explicit and intelligible to the jury upon the points raised by the counsel. See 6 G. & J. 404. [**13]  2 Md. 74.
Judgment reversed, with leave to appellee to take out procedendo. 

40 of 196 DOCUMENTS 

SOLOMON J. MAILHOUSE, vs. JOSEPH S. INLOES, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 328; 1862 Md. LEXIS 19 

June 4, 1862, Decided 

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

Appeal from an order, overruling motion of appellant to strike out a judgment, by default, entered against him at suit of the appellees. The facts are stated in the opinion of this court. The reasons for the motion, in substance, are:--

1st. That the cause of action being an open account for goods sold and delivered, there was no power to extend the judgment as the court did, but the plaintiffs were required to have a writ of inquiry, and their claim and damages assessed by an inquisition.

2nd. That for the same cause of action the plaintiffs sued defendant, August 28th, 1858, and he applied for the benefit of the insolvent laws, September 4th, 1858, and obtained his final discharge, January 3rd, 1859; that he employed counsel in the first suit, which was discontinued and entered off, September 5th, 1858, and, as he now for the first time learns, this suit was brought October 6th, 1858, as he believes for the purpose of taking undue advantage of, and deceiving and defrauding him; that he thought the summons related to the original suit and therefore paid no attention to it, and thus an absolute judgment was rendered against [**2]  him by default, without his knowledge or opportunity of defence, that he has made no new promise since his application, as the plaintiffs well knew, and therefore, are entitled only to a judgment subject to his discharge.

The plaintiffs answered this motion at length, denying all manner of fraud in the institution and prosecution of the suit and in obtaining the judgment, and insisting that the court had full power, under the Act of 1858, ch. 323, to enter the same as it did. The motion was overruled by the court, (LEE, J.,) and the defendant appealed.  

DISPOSITION:
Judgment reversed, and procedendo awarded.  

HEADNOTES:

A plaintiff in the courts in Baltimore city, may, under the Act of 1858, ch 323, obtain judgment by default on an open account, verified by affidavit, as required by that Act, at the term, or on the rule-day to which the defendant was summoned and failed to appear, but the court cannot, at the same term, extend such judgment by assessment of damages and costs.

The plaintiff, in such a case, is entitled to a final judgment only in case the defendant fails to appear before the first day of the term, or rule-day next thereafter, and then the judgment can go only for the amount of the account thus authenticated: the court has no power to allow interest on the account, which must be ascertained by a jury, on a writ of inquiry.

Though the judgment will be stricken out because improperly and prematurely extended, and because interest was allowed by the court, yet, the judgment by default, for the defendant's failure to appear, will not be disturbed.

A judgment by default, regularly entered, is as binding as any other, as far as respects the power and jurisdiction of the court, in declaring the plaintiff's right to recover, though the amount of the recovery, in some cases, remains to be ascertained by a jury.  

COUNSEL:
B. F. Horwitz, for the appellant.

1st. The court had no jurisdiction to enter this judgment under the Act of 1858, ch. 323. Secs. 7, 8 and 9, of that Act, refer exclusively to cases where an appearance has been entered, and therefore do not apply to this case. It can only come within sec. 6, which expressly provides for a writ of inquiry. This Act being in derogation of the course of the common law, must be construed strictly;--it must appear affirmatively upon the face of the statute, that the court had the power to enter such a judgment. Sedgwick on Stat. Law, 318. 9 Law Lib.  [**3]  , 43. 8 Md. 25, Warner vs. Fowler. 13 Pick., 284, Wilbur vs. Crane.

2nd. The judgment was irregularly entered. The court had no power to enter a final judgment in the way in which, and at the time when, this judgment was entered, and it is, therefore, absolutely void. There should have been a writ of inquiry to ascertain the damages. Act of 1794, ch. 46, sec. 2. Ev. Pr., 335 to 337. 4 H. & J., 312, Patrick vs. Ridgaway. 5 H. & J., 1, Wilmer vs. Harris. The writ was issued November 1858, and returnable in 1859, and yet the judgment is rendered in 1858. Again, a suit was instituted on the same cause of action, which was entered off. The judgment also includes interest, which was not warranted by the affidavit, and which the court had no power to allow, because interest is but damages, and the jury may or may not give it, as they please. 7 H. & J., 213, Barger vs. Collins.

3rd. The judgment was obtained through fraud, deceit and irregularity, on the part of the plaintiffs, and was a surprise on the defendant, and ought to be set aside for those reasons. Act of 1787, ch. 9, sec. 6. 9 Gill 146, Hall vs. Sewell.

P. M'Laughlin, for the appellee.

If the court had [**4]  power to extend the judgment, the defendant has no cause of complaint. That it had such power is very clear. The court would have had the power to make a rule to the effect, that judgments should be entered upon open accounts, where the amount is fixed and ascertained, as well as in cases of notes and bonds. But the question is not open under the Act of 1858, ch. 323. None of the reasons alleged for opening this judgment, are tenable, and there is nothing disclosed in the record which would have justified the court in disturbing it. The defendant must show, that his title to relief is unmixed with any gross misconduct or negligence of himself or his agents. 12 Md. 415, Keighler, et al., vs. Savage Manf. Co. 6 G. & J., 309, Gott vs. Carr.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*331]  GOLDSBOROUGH, J., delivered the opinion of this court.
It appears from the record in this case, that the appellees instituted an action in the Superior court of Baltimore city, against the appellant, on the 6th day of October 1858, on an account for goods sold and delivered, and at the time of filing their declaration, also filed the account [**5]  of said goods, with an affidavit, in accordance with the 9th section of the Act of 1858, ch. 323.
The summons for the appellant, after two non ests., was returned, summoned to the 2nd Monday of December 1858, one of the rule days of the court.
The appellant neglected to appear, and at the instance of the appellees, and in pursuance of the 6th section of the above Act, a judgment by default was entered, and the court, at the same time, and as part of the judgment by default, assessed the damages and affixed the plaintiffs costs.
The following order subsequently appears in the record:-- 

 [*332]  "Inloes vs. Mailhouse,--Superior Court. MR. SANGSTON: Enter judgment for twelve hundred and forty-four dollars and thirty-three cents, ($ 1244.33,) in the above case, with interest from the 20th of April 1858 with costs. Z. COLLINS LEE." Endorsed, "Filed 21st of February 1859." On the 16th day of June 1859, the appellees sued out a writ of fieri facias on this judgment, and while the writ was in the hands of the sheriff, the appellant moved "to strike out the judgment by default, for fraud, deceit, surprise and irregularity in obtaining the same," and assigned the reasons [**6]  mentioned in the record.
On the 15th day of July 1859, upon the hearing of this motion, the court overruled it, and this appeal was taken.
We cannot sanction the ruling of the Superior court. The proceedings are irregular in two important particulars. While it was the undoubted right of the appellees under the 6th section of the Act of 1858, ch. 323, to obtain a judgment by default, at the term or on the rule-day to which the appellant was returned summoned and failed to appear, yet, as this judgment was extended at the same term by the assessment of damages and costs, such assessment was in derogation of the rights of the appellant.
The 6th section provides, that the judgment by default shall be stricken out on the application of the defendant being entered to the action, at any time before the first day of the term, or rule-day next thereafter.
It is only on the defendant's failure to appear within the time limited, that the plaintiff is entitled to a final judgment. If, however, the final judgment was entered at the term or rule-day subsequent to the entry of judgment by default, to be inferred from the entry on the back of the order--"filed 21st of February 1859"--yet the court [**7]  erred in allowing the appellees interest on their account. We entertain no doubt, that, under the provisions of the Act of 1858, the court had power to enter a final judgment at the proper term or rule-day, for the amount of the appellees' claim "for goods sold and delivered," where the account is authenticated and verified 

 [*333]  by the affidavit of the plaintiffs, as prescribed in the 9th section of said Act. But the judgment must be restricted to the amount of the account thus authenticated, and the court had no power, of its own mere motion, to allow interest on the account. The interest was a subject of inquiry by a jury, as provided for by the 6th section of the Act.
Some of the reasons assigned by the appellant for striking out the judgment, though they might have constituted a legal defence, if he had appeared to the suit, according to the exigency of the writ, and defended the cause, yet failing to do so, he must take the consequences of his own neglect.
It is manifest from the title of the Act of 1858, ch. 323, that it was intended to afford to a plaintiff the advantage of a summary proceeding, and while this advantage in thus extended, the Act protects the defendant [**8]  by requiring the plaintiff, seeking its aid, to file his claim with his declaration, thus informing the defendant of the cause of action, and affording him an opportunity for a legal defence.
In the case of Green vs. Hamilton, 16 Md. 317, this court say, "a judgment by default if regularly entered, is as binding as any other, as far as respects the power and jurisdiction of the court in declaring that the plaintiff is entitled to recover, though the amount of the recovery, in some cases, remains to be ascertained by the jury."
While we must reverse the order of the court, because the judgment by default was improperly and prematurely extended, and because the interest was allowed by the court in the final judgment, we do not intend to disturb the judgment by default entered against the appellant for his failure to appear in obedience to the summons, the extension of that judgment in no manner affecting its validity. The cause will be remanded, that the appellee may proceed, by writ of inquiry, to have his damages assessed by the jury.
Judgment reversed, and procedendo awarded. 

41 of 196 DOCUMENTS 

WILLIAM LAWES, and CHARITY, his wife, vs. ROBERT G. LUMPKIN and wife.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 334; 1862 Md. LEXIS 20 

June 4, 1862, Decided 

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

This bill, filed October 28th, 1857, by the appellees against the appellants, alleges that Edward Ferry died, seized in fee of a lot and premises on Lombard street, conveyed to him by deed from Gelston and wife; that he left a widow, Charity, since intermarried with Wm. Lawes, and as heirs at law, Susannah, the wife of Lumpkin, and two infant children; that the property is not susceptible of partition, and it will be for the interest and advantage of the infants and complainants, to sell it for distribution; that the widow has been living in the dwelling house since her husband's death without rent, and has rented and received the rent for another house on the premises, and prays for a decree for a sale and division of the proceeds amongst the parties entitled, and that the widow and her present husband may account for the rents received, and pay a reasonable sum for the rent of the house occupied by them.

The answer of Lawes and wife, admits the property is not susceptible of division, but denies that it is capable of sale at this time, or that it is for the interest of any of the parties, save the complainants,  [**2]  that it should be sold, and they aver, that its sale now would work great injury to the other parties interested. They further insist, that Ferry and his wife, for considerations issuing from both, purchased, and had conveyed to them, as tenants in common, by deed of assignment from Sewell and Gelston, a leasehold estate in said property for ninety-nine years, renewable forever, and that it was the understanding between them, that each should hold his and her undivided moiety, and that the deed was drawn with that understanding, and that it was the intention of Ferry to buy out the reversion in the same manner, but by some inadvertence, the deed therefor was made to him alone; and the said Charity claims, 1st, one-half of the leasehold interest in her own right as her own purchase; 2nd, one-third of Ferry's moiety of the leasehold interest; and 3rd, dower in the fee, and insists that the property cannot be sold, except as to the fee, without her joining, which she is unwilling to do. They say they have always been willing to account to the heirs for their proportion of the rent, and pray for a decree refusing a sale as prayed, but empowering the respondents to pay complainants the [**3]  value of their share of the property, to be appraised by impartial appraisers to be named by the parties, and thus extinguish the complainants' title thereto.

The deed for the leasehold interest, dated July 9th, 1847, from Sewell and Gelston, conveys the same to "Edward Ferry, and Charity Ferry, their executors, administrators and assigns," in consideration of $ 700 paid by them. It recites that Sewell had previously executed a mortgage of the premises to Gelston, for $ 225, but had paid the same, and that the ground rent reserved in the original lease from Gelston to Sewell, is $ 40. The receipt for the purchase money, states it was received "from Edward Ferry, and Charity Ferry his wife." The deed from Gelston and wife, dated June 4th, 1851, conveys the reversion to Edward Ferry, his heirs and assigns, in consideration of $ 666 paid by him, and states that it was executed to extinguish the ground rent of $ 40, reserved in the lease, which Ferry was desirous of extinguishing, and to the intent that the said rent "may cease and determine, and the said lot, with the appurtenances, be henceforth held by the said Edward Ferry, his heirs and assigns, in fee-simple."

After answer [**4]  of the infants, by guardian, and replication, the court (LEE, J.) ordered a commission to three disinterested free-holders, to value the property and ascertain whether its sale would be for the interest and advantage of the infants and of the parties. These commissioners made their report, in which they value the property at $ 3500, in fee-simple, and state that its sale would be for the advantage of the infants and other parties, and give their reasons for this opinion, and that it would also be for the advantage of the widow that the property should be sold, and she receive her dower interest out of the proceeds. A commission was issued, by consent, under which testimony, as to value of the rent of the premises, was taken and returned. The court then passed an order directing the interests of the complainants to be determined upon a valuation of the property, and then paid by the defendants, and that the papers be referred to the auditor, who shall ascertain by competent witnesses the precise value of the property, and the rents received and due by the defendants to the complainants, and report the same with the amount to which the complainants will be entitled. The auditor took [**5]  testimony, reported the value of the property, and ascertained the interest of the complainants therein, and their share of the rents at $ 1131.47. He also reported, that the interest of Charity Ferry and Edward Ferry, in the term, was extinguished by the conveyance of the reversion to him, and that he held the property in fee after the execution of the deed for the reversion. He also ascertained the value of the dower according to the chancery rule in cases of partition, at $ 433.33. An order was then passed by the court overruling the defendants' exceptions to the auditor's report, and ratifying and confirming the same, and further ordering and decreeing that the defendants, Lawes and wife, pay to the complainants the sum of $ 1131.47, being the amount allowed them by the auditor, on or before a day limited, and if not so paid, then that a decree shall forthwith pass, ordering a sale of the property at public auction, by a trustee to be appointed by the court, and out of the proceeds, the amount so allowed the complainants, to be paid them by the trustee. After the time limited, (the money not being paid,) the court passed a final decree, ordering the property to be sold for the [**6]  purpose of complying with said order, and for the purpose of partition between the parties, appointing a trustee to make the sale, and directing him to convey to the purchaser the title to the property, "clear and discharged from all claim of the parties hereto complainants and defendants, and those claiming by, from or under them, or either of them," and to bring the proceeds into court, to be distributed under the court's direction.

To all these orders, decrees and proceedings, the defendants, Lawes and wife, objected by protest and exceptions taken at each step, and after the passage of the final decree, appealed.  

DISPOSITION:
Decree reversed and cause remanded.  

HEADNOTES:

A court of equity has jurisdiction to entertain a bill for partition, filed by an adult heir against the widow and infant heirs, and to decree that the widow account with the complainant, for his proportion of the rents received by her.

In such a case it is error to issue a commission to three free-holders, under the Act of 1818, ch. 133, as that Act relates only to proceedings, where all the parties are infants.

It is also error, in such a case, to refer the proceedings to the auditor, and ratify his report, in which an absolute sum is allowed the complainant, not upon his interest in the proceeds of sale, but upon a mere valuation of the property before sale.

An interlocutory decree, in such a case, requiring the widow to pay to the complainant the amount so stated in the auditor's report, by a given day, is a proceeding not warranted by, and wholly foreign to, the object of the bill for partition.

A final decree, directing the property to be sold for the purpose of compelling compliance with such interlocutory order, in disregard of the widow's right of dower, she having protested against the sale, is also erroneous.

Conveyance of a leasehold interest to husband and wife, and a subsequent conveyance of the reversion to the husband alone, for the purpose of extinguishing the ground-rent reserved by the lease, and, to the intent that the husband may hold the property in fee; HELD:

That in the absence of proof to sustain a separate estate in the wife, in the leasehold interest, to be upheld under the Acts of Assembly relating to the conjugal rights of married woman, the husband had the right to extinguish such interest, and it was extinguished and merged by the conveyance of the reversion to him.  

COUNSEL:
Wm. J. Waterman and Wm. Price, for the appellants.

1st. All the proceedings of the court below in this case--the issuing of a commission to three freeholders under the Act of 1813, ch. 133, which applies to cases only where all the parties are infants, the unauthorised reference to the auditor and his erroneous report, which allows the appellees an absolute sum upon a mere valuation of the property before sale, the order ratifying the same, the preliminary decree directing payment of this sum by a given day, and the [**7]  final decree for an absolute sale of the property, unencumbered by the widow's dower, when she had refused to consent to such sale, and to take her dower from the proceeds, are totally irregular, erroneous and unwarranted by any practice in equity, or any law or statute of Maryland relating to descents.

2nd. As to the widow's interest in the leasehold estate. The doctrine of merger does not apply. The proceedings being in equity, that court will never allow the merger to operate except for special reasons, and never where the interest of third parties would be prejudiced. The two estates or interests will not coalesce by merger, but will be kept apart, when there is an intervening incumbrance or estate, which may be used by the court to subserve the purposes of justice. In this case there was a conveyance of the term to Edward Ferry and Charity Ferry, and an assignment of a mortgage to them, at the same time, for Gelston united in the assignment for that purpose only. This mortgage was never satisfied by Ferry in his lifetime, and survived to Charity Ferry, and the court will now give her the benefit of it to prevent the merger. On this point, see 2 Bl. Comm., 777; Preston on [**8]  Merger, 212; 4 Kent, 101, 102; 1 Roper on Property, 209, 212; Macqueen on Husband & Wife, 52; Clancy on Husband & Wife, 110; 2 Cruise's Digest, 467; 1 Peere. Wms., 41, Philips vs. Philips; 3 Brown's Ch. Rep., (Perkin's Ed.,) 298, notes to the case of Heygate vs. Anneslcy; 11 Eng. Law & Eq. Rep., 317, Davis vs. Barrett; 3 Johns. Ch. Rep., 53, Gardner vs. Astor; 6 Johns. Ch. Rep., 393, Starr vs. Ellis; 15 Barb., 9, Reed vs. Latson; 15 Barb., 70, Clift vs. White; 5 Watts, 456, Dougherty vs. Jack; 8 Watts, 148, Moore vs. Harrisburg Bank; 1 Watts & Sergt., 485, Richards vs. Ayres; 6 Conn., 390, Lockwood vs. Sturdevant; 34 Maine, 50, Simonton vs. Gray.

John L. Thomas, for the appellees.

1st. The Acts of Assembly allow the right of partition by sale where it would be for the advantage of the parties. By the Act of 1785, ch. 72, sec. 12, the court can order a sale of lands in which infants are interested, by its appearing it would be for their interest, and the Act of 1831, ch. 311, extends this power to a sale of lease-hold interests. A court of equity in cases of partition, acts ex equo et bono, according to its own notions of general equity and justice between the parties, and [**9]  the orders and decrees in this case were made in such a spirit and with such a view. 1 Md. 398, Young vs. Frost.

2nd. The deed for the reversion was made, as it states, to the intent, that the ground-rent may cease and determine, and that Ferry and his heirs and assigns, might thenceforth hold the property in fee, and for the purpose of extinguishing the ground-rent reserved in the lease assigned to Ferry and wife. At law the conveyance of the reversion to the husband alone, merges the term held by husband and wife, or belonging to the wife alone. 3 Preston on Conveyances, 294 to 309. 4 Kent, 100. 15 Barb., 70, Clift vs. White. 2 Eden's Rep., 162, Donisthorpe vs. Porter. And in equity merger will take place where it is the clear intention of the party. 4 Kent, 101. Ferry must be presumed to have intended the legal consequence of his act, and it was for his wife and widow to show such was not the case. If the assignment to him and his wife be considered a settlement on her of one-half the leasehold, he had still power to dispose of his wife's personal interest, and that he did intend to dispose of the same and did exercise his marital rights, is manifest from the deed of the [**10]  reversion to him, and his dealings with the property thereafter and before his death. 2 Story's Eq., sec. 1383. 3 Ves., 166, Brown vs. Clark. But the assignment to him and his wife, did not give her a separate estate for her sole use. It no where says so on the face of the assignment, and there is no evidence outside of the deeds on the subject, and clear and explicit evidence to abandon his marital rights must be made to appear. 2 Md. Ch. Dec., 353, George vs. Spencer. 6 Md. 375, Turton vs. Turton.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH, and COCHRAN, J.  

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*340]  GOLDSBOROUGH, J., delivered the opinion of this court.
Though the Superior court had jurisdiction to entertain the bill filed in this case, in pursuance of the Act of 1785, ch. 72, sec. 12, and also to decree that the appellants, Lawes and wife, account with the appellees for their just proportion of the rents, (see 2 G. & J. 458,) yet there is manifest error in issuing a commission, as was done in this case, to three freeholders, under the Act of 1818, ch. 133, that Act, relating to proceedings, only, where all the parties are infants.
Again, the court erred in [**11]  referring the proceedings to the auditor, and ratifying his report, in which an absolute sum is allowed to the appellees, not upon their interest in the proceeds of sale, but upon a mere valuation of the property before sale.
The interlocutory decree, requiring the appellants, Lawes and wife, to pay to the appellees the amount stated in the auditor's report, by a given day, is a proceeding not warranted by, and wholly foreign to, the objects of the bill.
The final decree, not only to sell the property "for the purpose of compelling a compliance with the order of the court, passed on the fourth of April," but also in disregard of the widow's right of dower, against the sale of which she had protested, is equally objectionable.
The question, as to the widow's leasehold interest, independent of her right of dower, having been made and argued by the appellants' counsel, we deem it proper to say, that we find no sufficient evidence in the cause to uphold the idea, that Edward Ferry and his wife became tenants in common of the leasehold interest, under the assignment from Sewell and Gelston, 

 [*341]  on the contrary, by the deed from Gelston and wife, by which the reversion was [**12]  conveyed to Edward Ferry in fee, it is expressly provided, that it is "to the intent that the rent heretofore reserved and made payable thereout, by virtue of the lease aforesaid, may cease and determine, and the said lot and appurtenances be held henceforth by said Edward Ferry, his heirs and assigns, in fee-simple;"--also, "that it was made for the purpose of extinguishing the ground-rent reserved in the lease to Ferry and wife." In the absence of proof to sustain a separate estate in Charity Ferry, to be upheld under the Acts of Assembly relating to the conjugal rights of married women, the marital right of the husband to extinguish the leasehold interest is unquestionable.
For the reasons above stated, the decree of the court below must be reversed, with costs, in this court, to the appellants, and the cause remanded for further proceedings.
Decree reversed and cause remanded. 

42 of 196 DOCUMENTS 

JAMES BIRNEY vs. NEW YORK & WASHINGTON PRINTING TELEGRAPH COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 341; 1862 Md. LEXIS 21 

June 4, 1862, Decided 

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

Action brought, January 8th, 1859, by the appellant against the appellee, for that the defendant is publicly engaged in the business of telegraphing or transmitting messages or despatches from Baltimore to New York, for a price or consideration, and the plaintiff delivered to the defendant, on the 10th of November 1858, at its place of business in Baltimore, a certain message or despatch, to be transmitted on that day to the firm of Drake & Carter, in New York, which the defendant received for that purpose, and the plaintiff paid defendant the amount demanded by it for such service, but the defendant utterly and wholly neglected, to send or transmit said message or despatch, whereby the plaintiff has been greatly damaged and injured, and claims $ 500. Plea that the defendant did not enter into the contract alleged; on which issue was joined.

Exception: By an agreed statement of facts, read in evidence by the plaintiff, it was admitted that the defendant was an incorporated company, carrying on the business of publicly sending, for hire, messages by telegraph from Baltimore to New York, having places of business in both cities, and lines [**2]  of telegraph extending between them; that its authorized agent received from the plaintiff, at its place of business in Baltimore, on the 10th of November 1858, at 9 o'clock A. M., a message to be sent to Drake and Carter, stock-brokers, in New York, and agents of the plaintiff, ordering them to sell for him, on that day, 100 shares of New York Central Railroad stock, then in their possession, and belonging to the plaintiff; that the plaintiff paid the price charged and demanded for forthwith transmitting this message to New York from Baltimore, which the defendant agreed to do, that the defendant forgot and neglected to send said message or despatch, and it has never been sent; that the difference in price for which said stock was selling in New York on the 10th of November 1858, when it would have been sold if said message had been properly transmitted, and the 15th of November, when the plaintiff arrived in New York, and first learned that the defendant had neglected to send said message, and on which day he sold the same, was $ 2.50 per share, or $ 250 on said 100 shares, which sum, the plaintiff thus lost by the defendant's neglecting to send said despatch or message.

The [**3]  defendant proved by Wm. H. Deets, that he was employed in the office of the defendant on the 10th of November 1858, for the purpose of receiving messages for transmission to New York, and received the message in question from the plaintiff, but does not know whether it was written in the office or not. He further proved, (subject to exception,) that certain terms or rules were set up in the front office of the company on the two side walls, and these terms were offered in evidence. Among them is one informing the public that to provide against mistakes in the transmission of messages, every message of consequence ought to be repeated, and giving the rates of charges for repeating and reporting, and then it adds: "The company will not be liable for any loss or damage, that may ensue by reason of any delay or mistakes in the transmission or delivery, or from non-delivery of unrepeated messages, but only engage to use reasonable efforts to secure the services of competent and reliable employees, so as to have their business transacted in good faith. Nor will the company be responsible for mistakes in the transmission, nor for delay in the transmission or delivery, nor for non-transmission [**4]  or non-delivery of any repeated message to any extent beyond ten dollars, unless it be insured," and then the rates of insurance are given. The plaintiff neither paid a repeating or insurance price as named in these terms. On cross-examination, this witness proved that the message in question was received by him, at a pigeon hole, immediately in front of the door of the office, and that he did not call the plaintiff's attention to the notice or terms aforesaid, and that nothing took place at the time, except the receipt of the message by witness, and payment by plaintiff of the price charged by the defendant. The plaintiff then offered three prayers.

1st. "On the written statement of facts, read in evidence to the jury, they must find a verdict for the plaintiffs for the amount admitted therein to have been lost by the plaintiff, by failure of defendant to send plaintiff's dispatch to New York as therein stated."

2nd. This prayer embodies the first, and adds:--"Unless they further find that there was a printed notice set up in defendant's office, notifying persons sending messages, that an insurance price would be demanded for the purpose of making defendant liable for the [**5]  non-transmission of a message, and also find that the contents of said notice were known to the plaintiff."

3rd. This prayer also embodies the first, and adds:--"Even although the jury should find from the evidence, that there was a public notice set up in defendant's office, notifying persons sending messages, that an insurance price would be demanded for the purpose of making the defendant liable for the non-transmission of messages, unless they further find that plaintiff's attention was called thereto by the agent or agents of defendant."

The defendant asked the court to instruct the jury, that the plaintiff is not entitled to recover if they shall believe from the testimony, that the notice read in evidence, viz: that the New York and Washington Telegraph Company would not be responsible for mistakes in the transmission, nor for delay in the transmission or delivery, nor for non-transmission or non-delivery of unrepeated messages, was prominently and conspicuously displayed in the office of said company, so that the plaintiff in this action, or his agent, saw, or might have seen, the same, and that the said notice contained the terms on which the said company receive [**6]  and transmit the same, and shall further believe that the message in this case was neither repeated nor insured.

The court, (MARSHALL, J.,) granted the defendant's prayer, and refused those of the plaintiff, and to this ruling the plaintiff excepted, and the verdict and judgment being against him, appealed.  

DISPOSITION:
Judgment reversed, and procedendo awarded.  

HEADNOTES:

Where prayers neither point nor refer to the pleadings, the correctness of their being rejected or granted, depends not upon the state of the pleadings, but upon the evidence to which alone they refer.

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

It is the privilege of a party to raise any question of law arising out of the facts, and to demand the opinion of the court distinctly upon it; and the opposite party has the equal privilege of asking an opinion upon additional facts, not embraced in the hypothesis of his adversary's prayer, but not of controlling or modifying that hypothesis.

Where the court cannot grant the entire prayer, as made, though a portion of it in separate, distinct forms, might have been given, it is not error to reject the whole.

A telegraph company is responsible for any loss or injury, resulting from its neglect and failure to make any effort to transmit a message, which its agent has received for transmission, and been paid the price demanded therefor.

A telegraph company is not a common carrier, but a bailee, performing, through its agents, a work for its employer, according to certain rules and regulations, which, under the law, it has a right to make for its government.

A party sending messages by telegraph, is supposed to know, that the engagements of the company are controlled by such rules and regulations, and, in law, engrafts them in his contract of bailment, and is bound by them.

Rules exempting the company from liability for the non-transmission and non-delivery of unrepeated messages, do not apply to a case where no effort is made by the company, or its agents, to put a message on its transit.  

COUNSEL:
Benj. F. Horwitz, for the appellant.

1st. By the agreed statement of facts it is admitted, that a specific legal contract, (independent of the terms or rules set up in the defendant's office,) for the performance of a particular act by the defendant, was entered into between the parties; that the plaintiff paid the defendant the consideration demanded for such performance; that the defendant entirely failed to comply with its contract, and that by reason of such gross negligence the plaintiff lost the sum of $ 250. If there were no other facts in the case, there could be but one opinion as to the right of the plaintiff to recover the sum, admitted to have been so lost, and the statement of such a proposition is all that can be required by a legal mind. The defendant, however, seeks to avoid the responsibility arising from [**7]  this special contract, by proving that certain terms, or rules, were set up on the two side walls of its office, though it is not pretended the plaintiff had any notice, whatever, of these terms or rules. It is submitted, that this cannot be law. The only persons who have sought to avoid responsibility by means of a notice, of a general notice of this kind, are common carriers, whose duties and obligations are, in many respects, and especially in their public nature, similar to those of telegraph companies, but the most liberal of the cases, as to the law in reference to them, establish, and very properly too, the rule, that unless such notice be brought home to the knowledge of the employer, (which is indispensably necessary in order to render it available,) his consent to its terms cannot be implied, and even then in case of wilful misconduct or gross negligence, the carrier cannot limit his responsibility for the damage occasioned thereby. Smith's Merc. Law, 339 to 341. 19 Wend., 251, Cole vs. Goodwin. 10 Ohio, 145, Jones vs. Voorhees. 6 Maule & Selw., 150, Kerr vs. Willan. 4 Mees. & Wels., 749, Palmer vs. Grand Junction Railway. Almost the same rules have been applied to the responsibility [**8]  of telegraph companies. 35 Penn. State Rep., 298, Dryburg's case. 15 Grattan, 122, 130, 143, 148, Hobson's case. The Act of 1852, ch. 369, does not apply to this company, because it was not incorporated under the laws of this State; and a corporation could not pass, as a by-law, such regulations as are comprised in the terms or rules appearing in this case. Angell & Ames on Corp., 337. The plaintiff's prayers should, therefore, have been granted.

2nd. The defendant's prayer should have been rejected, not only for the reasons above stated, but for other reasons also:-- it requires the jury to find facts of which there is no evidence whatever, and is bad in form.

3rd. Even if the telegraph company could avoid responsibility by reason of the terms or rules offered in evidence, it must show a compliance with them, which is not done, but the contrary is shown, by the evidence. But besides all this, the terms or rules, themselves, do not cover this case at all. They only apply to cases of delay or mistakes, in the transmission or delivery, or the non-delivery of unrepeated messages, and to repeated messages not insured. This is not such a case, but is a case where the company receives [**9]  pay for transmitting a message, and makes no effort, whatever, to put it upon its transit. The rules, in question, do not cover it at all.

C. J. M. Gwinn, for the appellee.

The appellant's prayers were erroneous for various reasons, apart from the real questions of law arising in the case. They were defective, because they claimed special damages arising from the neglect of the appellee in the transmission of the despatch when no such special damages were specifically laid in the declaration, as they ought to have been, (Chitty on Carriers, 216; 1 H. Bl. Rep., 299, (note,) Hutton vs. Bolton; 8 G. & J., 314, Dandridge's Case; 2 Md. 136, Ellicott vs. Lamborne; 13 Md. 439, McTavish vs. Carroll; and same case in 17 Md. 1; Act of 1856, ch. 112, sec. 34,) for non constat, that the neglect of the company to send the despatch, was any necessary occasion of damage. All these prayers also assert that, "on the written statement of facts read in evidence, the jury must find," &c., the effect of which is to deprive the jury of their undoubted privilege of deciding upon the truth of the evidence. 1 Md. 451, Grove vs. Brien. 11 G. & J., 489, Ragan vs. Gaither. 2 Gill [**10]  426, Corner's Case. An agreed statement of facts cannot present a different case from uncontradicted testimony; different decisions seem to have been made in Armstrong vs. Risteau, 5 Md. 276, and in Inloes' Case, 11 Md. 184, but it appears to me, that in those cases the court have applied a principle which properly belongs to admissions in pleading, only, to admissions at bar of facts, which must still be passed on by a jury, because of the nature of the issue:--admissions in pleading remove the facts admitted from the consideration of the jury, whilst admissions at bar do not. But again, the first prayer is bad, because it could not be granted unless the court assumed the non-existence of all other testimony given in the cause, for by this prayer, no part of it is submitted to the finding of the jury:--it ignores every part of the testimony offered by the appellee. 2 Gill 162, Byer vs. Etnyre. The second and third prayers are also bad, because the legal question, involved in the case, is not whether "the plaintiff's attention was called" by the agent of the defendant to a public notice set up in the office, in relation to the necessity of insuring messages, for the purpose [**11]  of making the defendant liable for their non-transmission, but it is whether the plaintiff knew, or was in law bound to know, the rule in question.

The questions which the prayers of the plaintiff failed to raise, are presented by that of the defendant, and the whole question open to consideration can be discussed in the examination of the law of that instruction.

This company is an incorporated company, doing business in this State, and by the Act of 1852, ch. 369, sec. 10, it is made the "duty of the owner, or the association, owning any telegraph line, doing business within this State, to receive" despatches for transmission, "as established by the rules and regulations of such telegraph line, to transmit the same, with impartiality and good faith, under a penalty of $ 100 for every neglect or refusal so to do, to be recovered in the name of the person sending, or desiring to send, such despatches." Now, whilst it is made the duty of the company to receive and transmit messages, it is, by the terms of this general public law, provided, that this duty shall be performed in the manner "established by the rules and regulations of such telegraph line," which, in this respect,  [**12]  is more favorable to such companies than the English Act of 16 & 17 Vic., ch. 263, sec. 66, which allows them to make "reasonable regulations" only. This Act, by force of its terms, incorporates the rules and regulations of the company into any contract raised by implication of law, from the mere act of giving and receiving a message for transmission, when there has been no express agreement to dispense with, and vary, such rules and regulations. A party dealing with the corporation is bound by these rules and regulations, thus forming a part of his contract:--he is bound to know their rules, and to ascertain for himself, whether the agents, by whom alone a corporation can act, was authorized to make the contract on which herelies;--he is bound to ascertain for himself, the extent of the authority conferred upon such agents.

But the appellant attempts to assimilate this case to that of a common carrier, and to maintain that the defendant was subject to a legal responsibility which it had no power to modify, except by an express notice brought home to the parties dealing with it. I shall attempt to establish, upon principle, that a telegraph company is not a common carrier, and [**13]  therefore, is not put to the necessity of making what may amount to a special contract, in order to modify any common law liability, as an insurer. I enter at this point upon new ground, which the case requires should be explored.

We adopt the proper definition of a common carrier, when we select the text and citations of Chitty on Carriers, 15. He is one who, by ancient law, held, as it were, a public office, and was bound to the public. To render a person liable as a common carrier, he must exercise the business of carrying as a public employment, and must undertake to carry goods for all persons indiscriminately. He is a person that carries goods for hire. Jacob's Law Dict., tit., Carrier. The custom of the realm created his employment, and fixed his responsibility. Since he was in charge of the goods from the moment he received them until the end of their journey, that custom made him responsible for them in every event, against which individual care and foresight could guard. Jones on Bailments, 104. He was left with but two excuses, which would avail him in case of loss. Where the misfortune occurred by the act of God, or through the enemies of the State, he was exempt;  [**14]  but in no other case. The reason of this responsibility, founded on the impossibility of otherwise holding the carrier to strict account, is clear enough; and the result of the rule is, practically, to make the carrier an insurer against every injury or loss, except such as is occasioned by the act of God, or of the enemies of the State. But we repeat, that no employment comes within the definition of a common carrier, according to the custom of the realm, except where that employment is concerned in the transportation of goods. Chitty on Carriers, 243, 306.

The inquiry here is, whether a telegraph company is a common carrier, according to the custom of the realm; that is to say, does it carry goods, and is it an insurer, from the nature of its occupation? These are tests which will enable us to discover whether the defendant is a common carrier, or not. We settle these questions, however, when we dispose of the first. It was because, of the fact that goods were in his sole custody, and were subject to his single superintending care, from the moment they were received to the moment the terminus of the journey was reached, that the custom of the realm, and the common law, made [**15]  the carrier responsible for them in every event, except those against which individual vigilance could not guard. It was because, in its contemplation, only the providence of God, and the acts of the enemies of the State, were events beyond the control of the carrier, that he was held responsible for all losses proceeding from other sources to the goods in his charge, and was for this reason practically an insurer. But his whole obligation was one founded on the actual and manual possession of the goods of the person employing him. Nor was the rule an unreasonable one, when we know that the carrier who received goods, was able to measure, by his knowledge of their character and value, the terms upon which he would undertake to carry them, and also the precise measure of diligence which was needful to their safety.

Now we ask, whether the duty which a telegraph company has to perform, ranges itself under any such description, or is capable of enjoying any such safeguard in its exercise? In the first place, it agrees to carry no goods, nor anything that can be so described by the greatest stretch of legal ingenuity. What does a telegraph company do? It receives a written message [**16]  for transmission. It uses machinery to reproduce the words of that message at a distant point, either by direct copying of the message under some alphabetical system, or by translating that message into certain symbols, which, marked upon paper at a distant point, are there translated into our ordinary language. Can it be said to be even in the manual charge of the message so transmitted, during its transmission? Not so. It relies confessedly on machinery and upon threads of communication, which stretch hundreds of miles, and are liable at each fraction of an inch to break, or interruption, through accident, influence of climate, wantonness or malice. These circumstances make it impossible for the company to remain in actual practical custody and observation of its line. The idea of annexing to such machinery and to such modes of communication, the office of a common carrier, and requiring its proprietors to regard themselves as insurers of every message committed to them,--except in cases in which they could show that they had failed to transmit a message, because of the providence of God or of the violence of the enemies of the State,--would cast upon them an intolerable burden.  [**17]  The carrier of goods can avail himself of such excuses, for he sees what happens to his charge at the moment it happens, by his own vision, or the eyes of his agents. But a telegraph company, owing to the myriad causes which may disturb the security of its lines, would be left as often open to liability because of the providences of God, unknown to it, as because of any other reason.

It is impossible to come to the conclusion that the law casts upon a telegraph company the character of an insurer. And since it neither receives goods, for transmission,--nor is an in surer, because of the character of its undertaking as to such goods, we must look elsewhere for the class of bailments, to which its operations ought to be likened. For we may add here, if it be a common carrier, and a message sent by it was defectively delivered, or not delivered, it would be liable, under a declaration properly framed and laying special damage, to all the direct damages arising from such defective delivery, or non-delivery, of the message. But surely, it may be asked, whether any court would hold that a telegraph company was liable for the enormous losses that might be entailed upon it for the non-transmission [**18]  or defective transmission of a message, in relation to transactions, of the pecuniary importance of which it was not advised by the sender, and of which, perhaps, the abitrary words used as symbols in the message as written, might give it no warning? No such enormous and disproportionate risk is cast upon the carrier of the goods, because the carrier has always the means of apportioning his diligence to his responsibility.

The true character of the bailment made to a telegraph company, is in that class known as the locatio operis faciendi. Story on Bailments, sec. 370. The telegraph company "does some work, and bestows some care on the thing bailed." 1 Parsons on Cont., 610. It is not an insurer, but comes within the strong and clear language of Justices Turton, Gould and Powys in the celebrated post office case of Lane vs. Cotton, reported in 1 Salk., 17, and 1 Ld. Raym., 646. "Its office is for intelligence, not for insurance." A telegraph company may, with such knowledge as it has of the condition of its line, assume the office of an insurer, if it chooses so to do, for certain considerations; but the duty of insurance is not cast on it by the law. It is not an insurer, except [**19]  it become so by contract, and, therefore, it is not a carrier. This telegraph company was not a common carrier, but a bailee, performing, through its agents, a work for its employer, according to certain rules and regulations, which it was authorized to prescribe for its government. It was not a common carrier, because by the Act of 1852, ch. 369, sec. 10, it was authorized to contract, not by force of any common law duty or obligation, but in accordance with its rules and regulations, and this power is inconsistent with the common law definition of a carrier. The employer, who knew, or was supposed in law to know, that the engagements of the company were subordinated to the rules and regulations thus formally adopted, does himself in law engraft them on his contract of bailment, and is bound by them, if they were rules and regulations which the corporation contracting with him had the right to adopt. Whether the corporation had the right to make such rules and regulations under the law, is of course a question of law. Angell & Ames on Corp., sec. 357. Commonwealth vs. Worcester, 3 Pick., 462. Paxson vs. Sweet, 1 Green., 196.

The question, therefore, for this court to determine [**20]  is, whether it was competent for this particular corporation to make the rule, that it would not be responsible for mistakes in the transmission, nor for delay in the transmission or delivery, or non-delivery of any repeated message beyond ten dollars, unless it was insured, nor would be responsible for delays to insured messages even when the delay occurred from interruption in working the telegraph?

The court will observe that the Stat. 16 & 17, Vic. ch. 203, sec. 66, subjects those using the telegraph to such "reasonable regulations" as the companies may make. The Act of 1852, ch. 369, imposes no such restraint. But, in the particular employment of the company, we are bound to say, that the rule which required a message to be repeated or insured, to make the corporation responsible for the negligence even of its agents, is a reasonable rule. A corporation fulfills its primary duty, as to the class of bailments, to which this case belongs, when it employs sufficient machinery, and competent agents, for the transaction of its business. When it has done this, it has done all that it can do as a corporation; for, as it is an artificial being, it can only provide means for the performance [**21]  of its appointed work, and execute that work through its agents. It cannot personally execute or oversee the work done. Now what is the character of the contract between the appellant and the appellee in this action? We state a fact of science, which we may use in this argument without its appearing of record, when we say the operating apparatus of the telegraph, leaves no record of the work done at the place from which it is transmitted, and that therefore, there is a pecular liability to error in the non-transmission, and transmissions of despatches. So plain is the risk created by this circumstance, that we may assume that is is impossible to know with certainty, that a message has been transmitted at all, or transmitted in the very words of the despatch, unless the operator at the other terminus of the stipulated route informs the operator transmitting the despatch, of the fact of its reception, and of the very form in which it has been received. The court will perceive, therefore, that it is not only reasonable that the company should stipulate that it should only be held responsible for messages which were repeated from the point to which they are sent, but that in sound reason [**22]  it seems that such a repetition is necessary to the safe transmission of any despatch. And although it is competent for the company, dealing with those who are supposed to know the nature of the means which they employ, to consent to send unrepeated messages, at a low rate, they are authorized certainly to contract with the party, who avails himself of this low rate, that he shall take all the risk of such a proceeding, and become practically his own insurer in the use of the means and agencies which they have provided. For this case does not present the circumstance of a telegraph company seeking to free itself from all responsibility for the acts of agents, but the circumstance of a party agreeing to accept the chance of the negligence of the agent, provided that he is asked a less price for the service, which the company is to perform. It seems to us that MacAndrew's Case, 84 Eng. C. L. Rep., 12, is a clear and definite authority for the position we take. Precisely the same ruling was made in Camp's Case in 1858, 6 Am. Law Register, 443. Nor is Dryburg's Case, 35 Penn. State Rep., 298, to be accepted as the law of this, because in that case the action was brought by the person who [**23]  received the despatch, and not by the person who sent it.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*355]  GOLDSBOROUGH, J., delivered the opinion of this court.
The action in this case was instituted in the Court of Common Pleas of Baltimore city, by the appellant against the appellee, to recover damages for the total neglect to send, or transmit, a message, or despatch, received by the appellee to be transmitted.
The appellee pleaded, that it did not enter into the contract alleged in plaintiff's declaration, for the transmission of the telegraphic despatch, or message, named therein.
At the trial of the cause an admitted statement of facts, and the evidence offered by the appellee, were submitted to the jury. The appellant then offered three prayers, and the appellee one prayer. The court rejected the prayers of the appellant, and granted the prayer of the appellee; to this ruling of the court the appellant excepted.
In reviewing the action of the court below, it is proper to notice, that the prayers submitted to the court are predicated upon the evidence, without any reference to the pleadings. In such case the rule is,  [**24]  "that where a prayer, or prayers, neither point nor refer to the pleadings, the correctness of their being rejected or granted, depends, not upon the state of the pleadings, but upon the evidence, to which alone they refer." See 1 Gill 227; 7 Gill 5; 1 Md. 207; 13 Md. 126.
In view of the above rule, we are next to consider the reasons, assigned by the appellee, why the appellant's prayers were properly rejected. The appellee contends, that "in each of these instructions, it is stated that, on the written statement of facts, read in evidence, the jury must find," &c., and that the effect of this wording of the prayers is, to deprive the jury of their undoubted privilege, of deciding upon the truth of the evidence," and cites 1 Md. 451, and 11 G. & J. 489. We find a satisfactory answer to this proposition in 11 Md. 185, in which this court say: "It is well settled, that even where the proof is all on one side, the finding of the facts must be left to the jury; but this is not necessary when the case is tried upon 

 [*356]  admissions at the bar.  [**25]   The jury may discredit the testimony, but cannot find contrary to the agreement of the parties." See, also, the case of Armstrong vs. Risteau, 5 Md. 256.
Again, the appellee contends that the first prayer is bad, "because it could not be granted unless the court assumed the non-existence of all other testimony given in the cause; because by the prayer, no part of it is submitted to the finding of the jury." In our opinion the appellant, in presenting this prayer to the court, only exercised a right recognized by law. In Whiteford vs. Burckmyer and Adams, 1 Gill 127, the court say: "We hold it to be the privilege of a party to raise any question of law arising out of the facts of the case, and to demand the opinion of the court distinctly upon it. If the opposite party believes that other facts, not embraced in the hypothesis assumed, are properly calculated to justify an application for other and different instructions, he has the equal privilege of asking an opinion on the additional facts, but not the privilege of controlling and modifying the hypothesis of his antagonist." Here the appellee has brought itself within the above rule, by [**26]  asking an instruction from the court on other facts not embraced in the prayer of the appellant. It is further contended by the appellee, that it is protected from the demand of the appellant by its rules and regulations, established under the Act of 1852, ch. 369.
By a careful examination of those rules and regulations, we find no provision exempting the appellee from liability in a case of default and neglect, such as is contained in the statement of facts.
It is admitted by the statement of facts, that the appellant delivered the message for transmission, and paid the price demanded for that service; that the person who received it was the authorized agent of the appellee; that the message was received at the appellee's place of business; that the appellee forgot, and neglected to send said message and despatch, and it has never been sent. The loss of the appellant in the sale of his stock, is also admitted. We must therefore regard 

 [*357]  the appellee as a party contracting to perform a service, within the sphere of its business for compensation, which it fails to perform, and, for such failure, must account for any loss or injury that results from its neglect; and such [**27]  loss, or injury, will be the measure of damages to which the plaintiff is entitled, whether admitted or found by the jury.
The appellant's first prayer was therefore improperly rejected. The action of the court below, upon the appellant's second and third prayers, we must approve. The rule laid down in 12 G. & J. 236, and 12 G. & J. 484, is directly applicable to these prayers. The court say: "Where the court cannot grant the entire prayer as made, though a portion of it, in a separate, distinct form, might have been given, it is not error to reject the whole." We think the latter part of the second and third prayers of the appellant obnoxious to this rule. They substantially raise the question, that though the default and neglect, of which the plaintiff complains, may be embraced within the rules and regulations exempting the appellee from liability, yet that liability is not removed unless these rules and regulations are brought home to the knowledge of the appellant. In our opinion, the converse of the proposition is true: the appellant was bound in law to know them.
The appellant's counsel attempted to assimilate the responsibility of this telegraph [**28]  company to that of a common carrier. But the distinction is obvious. It is well defined by the appellee. "What does a telegraph company do? It receives a written message for transmission. It uses machinery to reproduce the words of that message at a distant point, either by direct copying of it under some alphabetical system, or by translating the message into certain symbols, which, marked upon paper at a distant point, are there translated into our ordinary language. It cannot be said to be even in the manual charge of the message, so transmitted, during its transmission. It relies on machinery and upon threads of communication which are liable to break or interruption, through accident, influence of the climate, wantonness or malice. These circumstances 

 [*358]  make it impossible for the company to remain in actual practical custody of its line."
While a common carrier is an insurer, and is protected from liability by the act of God or the enemies of the State, he can avail himself only of such excuses. He sees what happens to his charge at the moment it happens. But a telegraph company, owing to innumerable causes which may disturb the security of its lines, would be as [**29]  often open to liability because of the providences of God, unknown to it, as because of any other reason.
This telegraph company is not a common carrier, but a bailee performing, through its agents, a work for its employer, according to certain rules and regulations, which, under the law, it has a right to make, for its government. The appellee is supposed to know that the engagements of the appellee are controlled by those rules and regulations, and does himself, in law, engraft them in his contract of bailment and is bound by them.
The appellee cannot be considered a common carrier, because, by the Act of 1852, ch. 369, it was authorized to contract, not by the force of any common law duty or obligation, but in accordance with its rules and regulations, and this power is inconsistent with the common law definition of a carrier.
The prayer of the appellee was erroneously granted. Conceding that the notice, read in evidence, contained the terms on which the appellee would receive and transmit messages, and its exemption from liability, as stated in the prayer; and, also, that this notice was displayed in the office of the company, so that the appellant saw or might have seen it;  [**30]  still it is manifest that the terms of the notice neither embrace nor declare an exemption from liability in a case where no effort is made by the company, or its agents, to put a message on its transit. The exemption from liability for the non-transmission and non-delivery of unrepeated messages, provided for by the rules contained in the notice, does not, in our opinion, in any way embrace or affect this case.

 [*359]  The terms of the notice in which exemption from liability is declared, clearly imply an obligation on the part of the company to attempt the transmission and delivery of a message received by it for that purpose, and it would be most unreasonable to permit it to have the benefit of an exemption from liability without first bringing itself within the scope of the exemption provided for, by a full and faithful performance of its implied duties.
While we give full force and effect to the rules and regulations of the appellee in a legal construction of them, we deem it unjust to the appellant to extend that effect beyond the actual terms adopted by the appellee to secure its exemption.
Judgment reversed, and procedendo awarded. 

43 of 196 DOCUMENTS 

EDWARD KENLY vs. WILLIAM WIERMAN'S Exc'rs.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 302; 1862 Md. LEXIS 16 

June 3, 1862, Decided 

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

This appeal is from a decree of the court below, (LEE, J.,) passed August 31st, 1859, upon petition of the appellees, for a sale of property mortgaged to their testator by the appellant, by a mortgage dated September 28th, 1841. The proceedings and decree were under the Act of 1833, ch. 181, and its supplement of 1839, ch. 9. The terms of the mortgage are stated in the opinion of this court.  

DISPOSITION:
Decree reversed without prejudice.  

HEADNOTES:

A mortgage, to come within the provisions of the Act of 1833, ch. 181, must contain such assent of the mortgagor to the passing of a decree in conformity to the provisions of that Act, as to authorize the court, before default, forthwith to decree a sale of the mortgaged premises.

The supplemental Act of 1839, ch. 9, authorizes the passing of decrees for the sale of mortgaged property after default, only in cases where like decrees might have been passed before default, under the provisions of the original Act of 1833, ch. 181.

A clause, that, "in case of default being made in the premises," it shall be lawful for the mortgagee, his executors, &c., "to procure by a decree of any court of competent jurisdiction, a sale" of the mortgaged property, does not bring the mortgage within the special jurisdiction prescribed by these Acts.  

COUNSEL:
Benj. C. Barroll, for the appellant:--The great objection to this decree is, that the mortgage in question does not contain any assent to the passage of a decree according to the provisions of the Act of 1833. There is in it no assent to the passage of a decree ex parte, and no reference to, and nothing from which the court can infer, that either party contemplated such an assent as is required by the Act of 1833, and the decree, therefore, was wholly unwarranted by the mortgage deed.

John M. Edgar, for the appellee:--The mortgagor's assent is substantially given to the passing of the decree, and special reference to the Act of 1833, in totidem verbis, is not required if the intent [**2]  of the parties is manifest.  

JUDGES:
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
COCHRAN 

OPINION:

 [*303]  COCHRAN, J., delivered the opinion of this court.
The special jurisdiction in relation to mortgages in the city of Baltimore, conferred by the Act of 1833, chap. 181, is expressly limited to cases, where, in the mortgage, the mortgagor shall so declare his assent to the passing of a decree, in conformity with the provisions of that Act, as to authorise the court before a default, forthwith to decree a sale of the mortgaged 

 [*304]  premises. The supplemental Act of 1839, chap. 9, authorizes the passing of decrees for sales of mortgaged property, after the default of the mortgagor, only in cases where like decrees might have been passed before such default, under the provisions of the original Act.
As the decree in this case was passed by the court below in the exercise of the special authority conferred by the Acts mentioned, it cannot be affirmed unless the mortgage, on which it was granted, contains an assent thereto, on the part of the mortgagor, sufficient to have authorized the passing of a decree for a sale before his default. But the only [**3]  clause appearing in the mortgage, from which any inference of assent, on the part of the mortgagor, can be drawn, instead of authorizing the passage of a decree for a sale, according to the provisions of the Act of 1833, entirely excludes the mortgage from their operation, by providing for obtaining the decree after default, in terms which do not even imply a change of the ordinary mode of proceeding by bill. The clause thus expressed-- "in case of default being made in the premises, that then it shall and may be lawful for the said William Wierman, his heirs, &c., to procure by a decree of any court of competent jurisdiction, a sale, to be made of the hereby mortgaged property" --does not enlarge, but simply declares the subsistent right of the mortgagee to prosecute his remedy, according to the usual course, after the default of the mortgagor. According to our understanding, it is not sufficient to bring the mortgage within the special jurisdiction prescribed by the Act of 1833, nor the supplemental Act of 1839, and we shall therefore reverse the decree, with costs to the appellant, but without prejudice to the proper claim, or remedy, of the appellees, on the mortgage.
Decree  [**4]   reversed without prejudice. 

44 of 196 DOCUMENTS 

MAYOR & CITY COUNCIL OF BALTIMORE, and the CITY COLLECTOR, vs. GEORGE U. PORTER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 284; 1862 Md. LEXIS 15 

April 9, 1862, Decided 

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

The bill in this case was filed by the appellee against the appellants, for an injunction to restrain the defendants from selling the property of the complainant for payment of a tax assessed thereon, for the grading of North Avenue between Pennsylvania Avenue and the Falls Turnpike Road. The bill alleges, that the defendants have no right to charge the complainant with this tax, because they have wholly disregarded the provisions of the Act of 1856, ch. 164, for the grading of this avenue, and from which alone they could derive any authority to make the complainant or his property liable therefor. It also alleges that the proprietors of a majority of feet fronting on the avenue, did not sign the application for grading, but this allegation was denied in the answers, and formed one of the subjects of controversy in the case.

The facts appearing in the record, from the bill, answers and evidence, so far as the same need be stated, are briefly these: The avenue in question forms the northern boundary of the city of Baltimore, the land on one side of it lying in Baltimore county, and on the other in the city, and for this reason [**2]  the grading and paving thereof was provided for by the special Act of 1856, ch. 164. This law is entitled, "An Act relating to the grading and paving of North Avenue, in the city of Baltimore, supplementary to an Act entitled, an Act to vest certain powers in the corporation of the city of Baltimore, in relation to streets, passed on the 23rd of March 1839," (Act of 1838, ch. 226.) By sec. 1 of this Act it is enacted:--"That on the application in writing of a majority in front feet of the owners of the land in Baltimore county, and in the city of Baltimore, fronting on said avenue, or on any part thereof, to the Mayor and City Council of Baltimore, to have the same, or such part thereof as such majority may apply for, graded or paved, or both graded and paved, they shall have full power and authority, (if in their opinion consistent with the public good,) to allow the same, and to provide for ascertaining whether any, and what amount of benefit or damage will be caused thereby to the owners of the land on each side of said North Avenue, both in said city and Baltimore county, for which said owner or owners should be compensated, or ought to pay a compensation by reason of the grading [**3]  or paving, or of both, as aforesaid, and to provide for assessing and levying on the property of persons benefited, within the same limits, the expenses which may be incurred in the grading or paving or both, of said North Avenue, or any part thereof as aforesaid, in the same manner as is now provided by existing laws and ordinances for the grading and paving of streets in the city of Baltimore." By sec. 4, it is enacted:--"That the same right of appeal from any assessment of benefit or damage for the grading or paving of said avenue, to the Criminal court for Baltimore city, or Circuit court of Baltimore county, shall be granted to any owner or owners of property aforesaid, under this Act, as is now provided, under existing laws, for appeals within the city of Baltimore or in Baltimore county, in similar cases." After the passage of this Act, a number of proprietors of land, including the complainant, representing themselves to be the owners of a majority of feet fronting on this avenue between Pennsylvania Avenue and the Falls Turnpike Road, made application in writing to have the same graded between those points. Upon this application the city commissioner determined to grade the [**4]  avenue between said points, advertised for proposals, awarded the contract to W. Slater, assessed the tax, and placed the tax list in the hands of the city collector, who advertised the complainant's property for sale on account of its non-payment. All these proceedings were with the approbation of the mayor, and in all respects in conformity with the ordinances providing for the grading and paving of a street lying wholly within the city limits. The contractor proceeded to do the work and completed the grading at a cost and expenditure of over $ 100,000. The complainant and others now seeking to avoid payment of the tax, instituted no proceedings to stop the work during its progress, nor made any objection thereto until after the work was finished; and after the same was so completed the Mayor and City Council, on the 9th of December 1858, passed an ordinance declaring, that the contract and all the acts done under and by virtue of the same by the contractor, and all the acts of the city's officers in relation to the grading of said avenue, to be as valid to all intents and purposes as if an ordinance had been passed by the Mayor and City Council of Baltimore, previously to the making [**5]  of said contract, declaring that the grading of the said avenue would be consistent with the public good, and expressly allowing the same, and further ordaining and declaring, that the grading of said avenue, at the time it was being done, and ever since, and now is, for the benefit of the public, and that the same be and is hereby confirmed and made valid.

The injunction was granted as prayed in the bill, and after answers filed, testimony was taken, the purport of which is sufficiently stated in the opinion of this court, and on the hearing of the motion to dissolve, the court, (KREBS, J.,) on the 2nd of June 1860, passed an order continuing the injunction till final hearing. From this order the defendants appealed.  

DISPOSITION:
Order affirmed and injunction made perpetual.  

HEADNOTES:

The Act of 1856, ch. 164, for the grading and paving of North Avenue, requires damages, as well as benefits, to be assessed upon the owners of adjoining lands, and as a preliminary to any proceeding thereunder, that the Mayor and City Council of Baltimore shall determine the proposed work to be consistent with the public good. These requirements of the law were disregarded, and the city commissioner proceeded to have the work done as if it was the ordinary case of grading and paving a street lying wholly within the limits of the city. HELD:

1st. That all the proceedings of the city commissioner in the premises, were coram non judice and void, and a party whose land was about to be sold to pay the tax imposed for such grading, has a right to an injunction to restrain such sale, and a court of equity has jurisdiction to grant the relief.

2nd. Independent of this Act the city authorities had no power to grade this avenue, the land on one side thereof lying in Baltimore county, and in executing the powers thereby conferred, they must conform to the provisions of the law, and to the rules and directions therein prescribed.

3rd. The powers thereby conferred could be exercised by them only in the way in which all their powers are executed, by an ordinance adopted for that purpose, prescribing the officer by whom, and the manner in which, the work should be done, and providing for the time and manner in which the appeal prescribed by the Act, might be had by the parties interested.

4th. The fact that the party asking the injunction to restrain the sale of his property to pay the tax so improperly levied, signed the application to the city commissioner for the grading, does not preclude or estop him from obtaining the relief asked.

5th. An ordinance afterwards passed by the city, and after suit brought, confirming the grading done, was not of binding force, not being authorized by law, and cannot have the effect of ratifying the acts of the city commissioner, nor in any manner change the rights of the parties litigant.

The two systems, for opening and condemning and for grading and paving streets in the city of Baltimore, are entirely different, they are provided for by different laws and ordinances, executed by different officers, and governed by different rules and regulations.

Where a limited tribunal takes upon itself to exercise a jurisdiction which does not belong to it, its decision amounts to nothing, and does not create the necessity for an appeal.

The principles on which a court of equity interposes by injunction to arrest the illegal proceedings of public functionaries, are well established, and have been sanctioned and sustained by this court.  

COUNSEL:
Oral and printed arguments were made and filed in the case by G. L. Dulany, J. M. Campbell, Geo. W. Williams, Orville Horwitz, Coleman Yellott, and H. R. Dulany, for the appellants; and by Wm. F. Frick, Chas. H. Pitts and Geo. C. Maund, for the appellees. The grounds upon which the case is decided by this court, renders it unnecessary to state many of the points argued, and only those will be noticed which have [**6]  reference to the questions decided.

On the part of the appellants it was argued:

1st. There is some difficulty in ascertaining the true construction of the Act of 1856, ch. 164, but the interpretation that best harmonizes the various provisions of the law, seems to be, that the legislative intention was to apply, to the grading of North Avenue, a system composed of a combination of the provisions of the acts and ordinances relating to the grading and opening of streets in the city of Baltimore.

2nd. It was not necessary that the city authorities should have directly declared, by the passage of an ordinance, that the work contemplated was "consistent with the public good." The Act does not say such an ordinance shall be passed, and wherever an ordinance is expressly required, it is so provided. Any circumstance from which it might be inferred that such, in reality, was their judgment upon the matter, would be amply sufficient to satisfy the requirements of the Act. The assent of a corporation may be presumed as well as that of an individual. The fact, that the grading was done under the superintendence, and by the authority of a city official, and that the Mayor and City [**7]  Council allowed the same to be proceeded with, made and accepted the contract for doing it, afford just grounds for the presumption, that they regarded the undertaking as not detrimental to the interests of the community, but as "consistent with the public good." After the work was completed, an ordinance was passed, December 9th, 1859, approving of the same as consistent with the public good, and this subsequent declaration is equivalent to a previous expression of opinion to that effect: this ordinance was valid, for every retroactive ordinance may be good which does not disturb vested rights. But again, this provision of the law was introduced solely for the benefit of the public, and can only be urged, therefore, by those who represent the interests of the community at large; the appellants (the defendants below) do not set up any such defence, though they are the only parties who could take advantage of it.

3rd. That part of the law which says the city authorities shall have power to provide for ascertaining the benefit or damage to the property-owners by the grading or paving, or both, is said not to have been complied with. This part of the Act is borrowed almost verbatim [**8]  from the Act of 1838, ch. 226, to which it is expressly made a supplement, and the city authorities had already passed an ordinance in conformity with the requirements of the Act of 1838, regulating the assessment of benefits and damages, not only in case of lots situated in the city, but also where they were located adjacent thereto. There was no need, therefore, of any further action on the part of the corporation, as the legislative purpose could be fully effectuated by the ordinances already in existence. This avenue had been condemned, and opened as a public highway, and its grade fixed prior to the passage of the Act of 1856. The damages awarded on the condemnation of the property along its line, for the purposes of this avenue, included not only the actual value of the property taken, but the injury to the residue thereof, by reason of the intention to make a street at a grade higher or lower than the grade of the property not taken. For this anticipated injury full compensation was allowed:--the future injury that may result from an inconvenient grade is paid in advance at the time of condemnation. 11 G. & J., 398, 404, Canal Company vs. Grove. It is manifest, therefore, that [**9]  in 1854, when this avenue was condemned and opened as a public highway, all damages to the property owners, present and future, arising from the grade fixed the year previously, were either allowed in fact or in law. If this view is correct, then the clause in the Act of 1856, now under consideration, is nugatory, because it provides for ascertaining that which has already been ascertained and paid for, and unconstitutional, because it provides for the assessment and levying a second time on property, damages which have already been assessed and paid. If the law is read with this clause omitted, it is intelligible, and was properly executed by the city officers.

4th. But it is said the city authorities also neglected to provide for assessing and levying on the property of persons benefited, the expenses of the grading or paving. But the law says this assessment and levy shall be provided for, "in the same manner as is now provided, by existing laws and ordinances for the grading and paving of streets in the city of Baltimore." It seems clear, looking to the purpose of this Act, that there was no need of any action on the part of the Mayor and City Council. The requisite machinery,  [**10]  as designed by the Legislature, for assessing and levying the expenses of grading this avenue, had already been created by city ordinances, and is expressly recognized by the law itself. There was nothing left but to apply this precisely as it existed in the city, to the county. This could be done as well without as by the interposition of the corporate authorities. It was therefore, evidently, never the intention of the Act to make the levying and assessing of expenses altogether dependent upon the action of the Mayor and City Council. By referring to a perfect system already in existence, as applicable to this avenue, it ipso facto transfers that system, and makes it applicable to the avenue. It executes itself. Any other construction would make the Legislature insist upon that which could answer no purpose whatever, but, on the contrary, would be highly unreasonable.

5th. Not only is the appellee, by signing the application to grade, in which the signers are represented to be the owners of a majority of feet, absolutely estopped from taking the objection, that the requisite majority in front feet did not sign, but, by that application, and by the fact that he stood by and saw [**11]  the grading going on and completed, he is estopped from objecting to paying for the same on any grounds which he might have urged prior to the commencement or completion of the undertaking, on the equitable principle, that he, who with a knowledge of his rights, or of the facts from which his rights arise, permits another to do or continue an act which he has power to forbid, is estopped from afterwards asserting those rights to the detriment of that other. 1 Johns. Ch. Rep., 344, Wendell vs. Van Rensselaer. 9 Barb., 17, Hall vs. Fisher. 3 Mylne & Keen, 632, Parrott vs. Palmer. 1 California, 455, Weber vs. City of San Francisco. 6 Johns. Ch. Rep., 166, Storrs vs. Barker. 11 G. & J., 256, Neptune Ins. Co., vs. Robinson. 8 G. & J., 93, Savings Institution vs. Schroeder. 8 Metc., 180, City of Lowell vs. Hadley.

6th. Where a right of appeal is given from a judgment, or proceedings at law, by statute, a court of equity will never interfere, and has no jurisdiction to interfere by injunction, as a measure of relief to a party complaining of a violation of his rights by the inferior or special tribunal. Now, whatever may be doubtful in the construction of the Act of 1856, it is certain [**12]  that, by its fourth section, a right of appeal is secured to the owners of lots assessed, and, upon such an appeal, justice would have been done to both parties, whilst the injunction, if perpetuated, will leave to the contractor no remedy whatever--he will have suffered a total loss of the great expenses of this whole work, and be a ruined man. The right of appeal having been thus given to the appellee in a full and ample manner, he cannot apply to a court of equity for its interference in his behalf. 6 Gill 391, Methodist Church vs. Mayor & C. C. of Balt. 6 G. & J., 298, Ranahan vs. O'Neale. 6 G. & J., 309, Gott vs. Carr. 8 Gill 433, Richardson vs. Mayor & C. C. of Balt. 2 Md. 320, Brumbaugh vs. Schnebly, and case of Derickson, et al., vs. Predeaux, et al., cited in the note, page 325. 8 G. & J., 340, Glenn vs. Fowler. 8 G. & J., 170, Dilly, et al vs. Barnard. 5 Gill 383, Alexander, et al., vs. Mayor & C. C. of Balt. The case of Holland vs. Mayor & C. C. of Balt., 11 Md. 186, arose under an application to pave, under the general legislation of the city and its ordinances on the subject. In such a case there was no right of appeal, and where such is the case, the [**13]  only remedy for parties aggrieved, is by injunction. But here, as already stated, by the special provision of this Act of 1856, an appeal is secured.

7th. In respect to all the objections which appear on the face of the proceedings, (which includes all save that based on the want of a majority of owners of front feet,) certiorari was the appropriate remedy, and a court of equity, therefore, had no jurisdiction. Ev. Pr., 383 to 389. 8 Gill 150, Swann vs. Mayor & C. C. of Cumberland. 1 G. & J., 197, Williamson vs. Carnan. 16 Johns., 50, Wildy vs. Washburn, 15 Md. 197, Turnpike Co., vs. Northern Central Railway Co.

On the part of the appellee it was argued:

1st. In this case the city has attempted to divest the appellee of his property--to charge it with the cost of a public improvement, and enforce payment of the charge by a sale. When such an act is done by the State or the city, it is the exercise of a high prerogative of sovereignty, (4 G. & J., 175, Canal Co. vs. Railroad Co.,) and the Act conferring the power must be strictly complied with; without the explicit sanction of the Legislature, the city can have no shadow of power to sell the appellee's property,  [**14]  and with such sanction, as the power is a most delicate one and liable to abuse, she must proceed with caution. Nothing prescribed in the Act, which confers the power, material to the protection of the citizen, can be omitted. Specially delegated powers must be strictly pursued, and when the statute prescribes the mode of executing the power, it can be executed in no other way. Upon this doctrine, vital and fundamental, the authorities are unanimous. 4 Hill, 81, Sharp vs. Speir. 4 Pet., 167, Beatty vs. Knowler. 11 G. & J., 56, Barrickman vs. Coms. of Harford Co. 7 H. & J., 91, State vs. Merryman. 8 Gill 154, Swann vs. Mayor & C. C. of Cumberland. 10 G. & J., 374, Root vs. State. 21 Eng. Law & Eq. Rep., 625, Mayor of Liverpool vs. Chorley Water Works.

2nd. If the city ever acquired power to grade this avenue, the power was never exercised. The Act of 1856, gave the power to the Mayor and City Council of Baltimore, to allow the grading, if in their opinion consistent with the public good, and to provide for ascertaining whether any and what amount of damage would be caused thereby to the owners of property on either side thereof, and for assessing the expenses on the property [**15]  and persons benefited. But the city authorities never considered the subject, nor made any provision for accomplishing the designated objects, nor took any action in the matter whatever. Whatever the true construction of the Act may be, an ordinance was absolutely essential to put it in operation. How else, than by an ordinance, can the city assent to and exercise powers vested in it by the Legislature? The clause, "if in their opinion consistent with the public good," shows the necessity of an ordinance. It presents a question exclusively for the consideration of the Mayor and City Council. 6 Gill 400, Methodist Church vs. Mayor & C. C. of Balt. 6 H. & J., 383, Mayor & C. C. of Balt. vs. Howard. But it is said the ordinance of December 9th, 1859, passed several months after the injunction in this case had been granted, confers validity upon the commissioner's proceedings. This ordinance is an assumption of authority which the city did not possess. Her powers were derived exclusively from the Act, which gives no right to confirm, as against the appellee, proceedings which were void. 3 Denio, 599, Doughty vs. Hope. This ordinance should have been passed before the work was "allowed"  [**16]  to be done;--it can have no retroactive efficacy.

3rd. If the city has ever exercised the power to grade and assess, it has done so in a manner so essentially distinct from and repugnant to the provisions of the Act, that its proceedings are a nullity. This proposition depends upon the meaning and intention of the Act of 1856. The appellee insists that the Act clearly requires an ascertainment of benefits and damages; that the assessment should be made upon the property benefited, and in proportion to the amount of benefit. Is not this the true interpretation of the Act? Not only must a statute which divests the owner of his property, be strictly pursued, but it must be strictly construed. A power derogatory to private property must be construed strictly--so also where extraordinary powers are granted, affecting property of individuals. 9 Law Lib., 750. 4 Hill, 84, Sharp vs. Speir. The interpretation of the appellee, that the owners of property damaged should be compensated, and that property benefited should be proportionately assessed, is, in its results, fair and equitable, while the enforcement of the views of the appellants is proved, by all the testimony in the case, to [**17]  be in the highest degree unjust and oppressive. We should not lightly impute to the Legislature an intention to perpetrate so intolerable a wrong upon private rights of property. But such intention is not clearly expressed, and can only be inferred by ingenious speculation upon a single clause of a few words, at variance with the whole body of the Act. The Act is made, by its title, supplemental to that of 1838, ch. 226, and, in the construction of an Act, its title and preamble may be regarded. 4 G. & J., 1, Canal Co. vs. Railroad Co. Dwarris on Stat., 654, 694. 7 G. & J., 274, Kent vs. Somervell. 12 G. & J., 17, Lucas vs. McBlair. The language of a greater part of its first section is a transcript, or nearly so, of the Act of 1838. The powers conferred by this language have been construed, by the Mayor and City Council, by ordinances, and carried into practice in many instances, and during many years, and their construction and practice have received the sanction of this court. 5 Gill 384, Alexander vs. Mayor & C. C. of Balt. The only difficulty in construing the Act, is presented by the last clause in the first section, to wit: "In the same manner as is now provided by existing [**18]  laws and ordinances for the grading and paving of streets in the city of Baltimore." The existing laws and ordinances did not require an ascertainment of benefits and damages, but authorise the expenses of the work, to be assessed in the form of a grading or paving tax on the property fronting on the street to be paved, equally per front foot, and from this tax there is not provided a right of appeal. Thus the two words "grading and paving," introduce confusion into the Act, and conflict in its provisions. They are clearly an accidental substitution for the words "opening and widening," or "laying out and opening," which would have furnished an apt reference to the Act of 1838, and the ordinances passed in pursuance of it. 6 Hill, 617, Watervliet Co. vs. McKean. 1 Pick., 105, Shrewsbury vs. Boylston. 8 Md. 456, Brown vs. Somerville. The appellee insists, therefore, that an ordinance providing for the ascertainment of benefits and damages, expressly, under the Act of 1856, was absolutely necessary. 6 H. & J., 388, Mayor & C. C. of Balt., vs. Howard. But it is said the damages have already been presumptively ascertained and paid, under the proceedings for "opening and condemning"  [**19]  this avenue, and that the Act of 1856, in providing for their being paid a second time, is void. The answer to this is, 1st, that upon the condemnation of the avenue, no assessment or estimate was made of the benefits and damages that would arise out of its being graded; and 2nd, that no intendment of law can be allowed that such an estimate was made, for the reason, that the laws and ordinances under which the commissioners acted, gave them no power to make it. They had no authority to ascertain and assess damages, other than the value of the bed of the avenue, and therefore no presumption of law arises, (as in Grove's case, 11 G. & J., 398,) on the ground that it was their right and province to make any further estimate.

4th. As to estoppel, by signing the application to grade, and permitting the work to go on without objection:--The rule is, that the acts of a corporation, unauthorized by its charter, though assented to by the person dealing with the corporation, bind no one. 3 Wend., 482, North River Ins. Co. vs. Lawrence. 5 Conn., 560, Firemen Ins. Co. vs. Ely, et al. 8 G. & J., 319, Dandridge's case. There is no evidence that the property holders had actual knowledge of [**20]  the progress of the work, but granting that they knew the city was constructing this avenue, there was no notice to them, or any of them, prior to the assessment of the tax, and the attempted sale of their lots, that there was to be no assessment of benefits and damages, under the Act of 1856, no appeal from such an assessment, no passage of a city ordinance to provide for securing the rights and privileges expressly conferred by that Act. What reason had any of them to suppose, that when the work was done it was the intention of the city, or its officers, to disregard the plain provisions of that Act, and impose an enormous ratable tax per front foot, on all the property, without inquiring whether it was lessened or improved in value, by the grading? The parties injured had a right to expect just compensation, as the Act provided they should, and until these reasonable expectations were defeated, there was neither motive, justification, nor equitable grounds for interfering, by injunction, with the proceedings by the city and its officers.

5th. As to jurisdiction in equity:--The principle upon which a court of equity will interpose to enjoin a sale in cases like the present,  [**21]  is set forth in Holland's case, 11 Md. 186. The broad principle of that case is, that if, for any reason whatever, the threatened sale would be void, equity will restrain the sale, to avoid multiplicity of suits, and to prevent a cloud from being thrown upon the title. See, also, Steuart's case, 7 Md. 515. But it is said that the proper and only remedy was by an appeal. In answer to this, the appellee insists that the Act of 1856 does not, of itself, grant an appeal, but merely authorizes the city authorities to provide, by ordinance, for the exercise of the right, and no such ordinance was ever passed. But whether we consider the Act itself as granting the appeal, or as merely authorizing the city to provide for the exercise of the right, it is equally clear, that, from the proceedings of the city commissioner, the appellee never had any privilege of appealing. Again, the proceeding was entirely void--there was no appeal, and no necessity for an appeal from it; and the only remedy of the appellee against an unauthorized sale of his property, was by injunction, or by treating the sale as void, and resisting the claims of any purchaser.  

JUDGES:
The cause was argued before LE GRAND,  [**22]  C. J., TUCK and BARTOL, J., and a re-argument was ordered by the court, and the case was again argued before BOWIE, C. J., BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*297]  GOLDSBOROUGH, J., delivered the opinion of this court.
For several years prior to the incidents which induced the controversy in this case, the city of Baltimore was blessed with a prosperity strikingly illustrated by its material expansion. The waste places within her jurisdiction were, day by day, disappearing under the advance of this expansion. Her highways were being extended, and were affording uninterrupted intercourse to her citizens from one extremity of the city to the other. This state of prosperity begat a corresponding public feeling, from which, in 1852, arose the determination to lay out and establish an avenue one hundred feet wide on the confines of the city, to be denominated the North Avenue. In that year, certain real estate was condemned, to form the bed of this improvement, between Pennsylvania and York Avenues, under an ordinance of the corporate authorities, by which it was declared that the opening and condemnation of North Avenue, as a public highway, would be a great [**23]  public improvement and result advantageously to the community Though the bed of the avenue had been condemned for several years as a public highway, it continued useless for that purpose for want of authority to grade it. It became, therefore, necessary to obtain the passage of a law, under the provisions of which, it could be made practically useful as a great public convenience. And for this purpose the Act of 1856, ch. 164, was passed. After the passage of that Act, a number of the proprietors of land lying upon the avenue, representing themselves to be "the owners of a majority of front feet," made application to the city commissioner to have the same graded. 

 [*298]  Upon this application, the city commissioner went on to have the work done, and assessed upon the property a tax to pay the cost and expense of the grading, making such assessment upon all the adjoining property equally, according to the number of front feet, in the same manner as in the ordinary case of a street lying wholly within the limits and jurisdiction of the city, and without making any ascertainment of damage to the owners, or any of them. He then proceeded to place the tax list in the hands of the collector,  [**24]  who advertised the property of the appellee for sale, on account of its non-payment.
An injunction was granted by the Circuit court, at the instance of the appellee, to prevent the sale, and this appeal was taken from the order of the 2nd of June 1860, continuing the injunction.
A great deal of evidence was taken in the case upon the disputed question, whether the application, for the grading of the avenue, had been signed by persons owning a majority of the feet fronting thereon, as required by law, and also for the purpose of showing the manner in which the work of grading had been done, and the consequent damage and injury alleged to have been suffered by many of the adjoining proprietors.
But, in disposing of the present appeal, it is quite unnecessary to decide upon those questions, or to pass upon the various exceptions to the evidence presented in the record. The affirmance of the action of the Circuit court, may be properly rested on the broad ground, that the city commissioner had no legal power or authority to cause North Avenue to be graded, and that all his proceedings in the premises, were coram non judice and void. This conclusion is based on the construction of [**25]  the Act of 1856, ch. 164.
By reference to the pre-existing laws and ordinances, it will be seen, that the two systems for opening and condemning streets, and for grading and paving them, are essentially different from each other; they are provided for by different laws and ordinances, executed by different officers, and governed by different rules and regulations.

 [*299]  This will plainly appear by reference to the Revised Ordinances of 1850, Nos. 15 and 17, and the Acts of Assembly under which they were respectively adopted. In passing the Act of 1856, ch. 164, the Legislature seems to have blended the two systems, and hence, some difficulty has arisen in giving such construction to that Act as will make all its provisions harmonize with each other. In its title it is declared to be supplementary to the Act of 1838, ch. 226, which relates to opening and condemning streets. In its first section it contains, like the Act of 1838, provisions for ascertaining the damages as well as the benefits, which will be caused to the owners of adjoining lands by the grading, and requires, as a preliminary to any proceeding under the law, that the Mayor and City Council shall determine the  [**26]   proposed work to be consistent with the public good. And the fourth section provides that an appeal shall be granted to the owners of property, from the assessments of benefit and damage arising from the grading or paving of the avenue.
In these respects the law is very similar, in its provisions, to the Act of 1838, and wholly unlike the existing laws and ordinances relating to the grading and paving of streets in the city of Baltimore. In the action that was taken by the city commissioner, those provisions of the law were wholly disregarded, and the record shows that he proceeded in the same manner as is contemplated by ordinance No. 15 of 1850, and as in the ordinary case of a street lying in the city, with the property adjoining thereto, on both sides, within the city jurisdiction. Inasmuch as the property adjoining North Avenue, on one side, lies in the county of Baltimore, it was not competent for the Mayor and City Council to make any assessment on such property for the expense of grading and paving it, without some further legislation on the subject: hence the necessity for the Act of 1856.
The great extent and cost of the work, the irregularity of the surface over [**27]  which it passes, with the very great embankments and excavations required, and the consequent damage that 

 [*300]  might result to some of the adjoining property from the grading, no doubt suggested to the Legislature the propriety of making different provisions of law, from those applicable to the ordinary cases of grading and paving a street, lying wholly within the limits of the city. However that may be, it is sufficient to say, that, independent of the Act of 1856, the city authorities possessed no power to grade the North Avenue.
Their powers being derived under that Act alone, within its provisions are to be found prescribed the rules and directions, to which the Mayor and City Council must conform in executing those powers.
It was not a case to which the ordinance No. 15 of 1850 was at all applicable; and the city commissioner acting under that ordinance, possessed no jurisdiction or authority to act in the matter.
The power is conferred, by the Act, on the Mayor and City Council, and could be executed by them, only in the way in which all their powers are executed, by an ordinance adopted for that purpose, prescribing the officer by whom, and the manner in which, the [**28]  objects of the law should be accomplished; and providing the time and manner in which an appeal might be had, by the parties interested.
Being a work of great magnitude and expense, involving not only private interests, but also of public concern, the Act requires that the Mayor and City Council shall first determine that it is "consistent with the public good."
No such preliminary determination was made, nor was the application addressed, to them or any action had by them upon the subject.
Under these circumstances, it is impossible to say, that the action of the city commissioner was authorised by any law or ordinance, without which, the payment of the tax assessed by him, cannot be enforced by a sale of the appellee's property.
It was urged, that as the appellee signed the application to the city commissioner for grading the "North Avenue," he should be precluded from taking advantage of the want of authority 

 [*301]  to perform the duties under the Act of 1856. We do not think that this proposition is tenable. If the appellee was ignorant of the duties of the commissioner, and signed an application which it was not lawful for that officer to entertain, it would not precluded [**29]  the appellee from availing himself of the nullity of the subsequent proceedings, certainly, it would not debar him from interfering to stop an unlawful sale of his property, which would have been one of the consequences of the act of the commissioner.
The principle of estoppel has no application to the case. The law requires the application of the owners of a majority of the feet of property fronting on the avenue, before any steps can be taken by the corporation to have it graded; but, because the appellee has signed such an application, it surely cannot be successfully maintained, that he assented that the work should be done in any other way than the law requires, or if he had so assented, that such assent could confer any power upon the city commissioner, not possessed by him under the laws and ordinances of the city.
The ordinance afterwards passed, on the 9th day of December 1859, to confirm the grading of North Avenue, not being authorised by any law, was not of binding force, and could not have the effect of ratifying the acts of the city commissioner, or in any manner change the rights of the parties litigant.
In the argument of the case, the question of jurisdiction was [**30]  argued with great ability. The counsel for the appellant insisted that a court of chancery has no jurisdiction to grant the relief asked for in the bill, the only remedy being in a court of law, by an appeal from the proceedings of the city commissioner, under the Act of 1856, or by certiorari, and the case of the Methodist Church vs. The Mayor & City Council of Balt., 6 Gill 391, was referred to in support of this position. But that case is unlike the present. There, the street commissioners were acting within the scope of their authority, and if the allegations of the bill were true, the acts complained of were but irregularities, subject to be reviewed, on appeal, by the 

 [*302]  tribunal appointed by law for that purpose. Here the city commissioner acted without any lawful authority. His acts are not merely irregular, but void. In 8 Howard 543, the Supreme court say: "The rule is, that where a limited tribunal takes upon itself to exercise a jurisdiction, which does not belong to it, its decision amounts to nothing, and does not create a necessity for an appeal."
The principles on which a court of equity interposes by injunction to arrest the illegal [**31]  proceedings of public functionaries, are stated by Lord Chancellor Cottenham in Frewin vs. Lewis, 4 Mylne & Craig 19 Eng. Ch., Rep. 249, cited with approbation by Mr. Justice Story, in 2 Story's Eq., sec. 955 a. In Holland's case, 11 Md. 186, the jurisdiction of the court of chancery was maintained, under circumstances and upon grounds which completely cover this case.
Order affirmed and injunction made perpetual. 

45 of 196 DOCUMENTS 

MAYOR & CITY COUNCIL OF BALTIMORE, vs. HENRY R. and JOSIAH REYNOLDS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 270; 1862 Md. LEXIS 12 

April 4, 1862, Decided 

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

In this case an action was brought by the appellees against the appellants, at the trial of which various questions of law arose, and were decided by the court below, (LEE, J.,) to whose decisions exceptions were taken by the appellants, and at their instance bills of exception were signed and sealed by the judge. The trial resulted in a verdict for $ 35,788.53, in favor of the plaintiffs, on which a judgment was rendered July 19th, 1859, and from this judgment an appeal was taken by the defendants. But after this appeal had been prayed and entered, the defendants moved for a new trial, and the court, (MARTIN, J.,) on a hearing of this motion, adjudged, March 31st, 1860, that the defendants were entitled to a new trial, and that the same would be granted, unless the plaintiffs would forthwith remit on the verdict the sum of $ 6195.14, which amount was thereupon forthwith remitted by the plaintiffs, and judgment was, on the same day, rendered upon the verdict for the reduced amount, viz: for the sum of $ 29,593,39. From this judgment an appeal was also taken by the defendants, on the day it was entered, and the transcript of the [**2]  record was filed in this court on the 18th February 1861.

Motions were made, by the appellees, to dismiss both these appeals, and, on the hearing of these motions, the appellants' counsel, in open court, abandoned their appeal from the judgment of the 19th of July 1859. The reasons assigned for dismissing the appeal from the judgment of March 31st, 1860, are in substance:--

1st. That the transcript of the record was not transmitted to the court within the time required by law.

2nd. Because the record does not show any basis for the appeal: no exceptions having been taken, nor motion in arrest made, nor writ of error sued out, to bring the record to this court for review.

3rd. Because the remittitur, made by the plaintiffs in compliance with the exigency of the court's order, passed at the instance of the defendants, was so made by the plaintiffs to prevent a new trial, and to entitle them thereby to the residue of the judgment of the 19th of July 1859, and is so made in terms, so that the said judgment was not in fact and in truth, nor in legal effect, superseded, set aside, or in any manner vacated, as to the residue thereof, and the entry of the judgment anew,  [**3]  on the 31st of March 1860, for such residue, was an act of supererogation, and a merely formal entry, and is not, in fact or in law, the real and effectual judgment in the case.  

DISPOSITION:
Motion overruled.  

HEADNOTES:

If an appeal be taken in time, the delay in transmitting the record to this court is no ground for dismissing the appeal, unless it affirmatively appears that such delay is by the default of the appellant.

At a trial various exceptions to the rulings of the court were taken by the defendant, and signed and sealed. The verdict was for the plaintiff for $ 35,788.53. The defendant moved for a new trial, which the court decided should be granted, unless the plaintiffs would remit on the verdict, the sum of $ 6195.14. The remittitur was entered, and a final judgment entered for the reduced sum. On appeal from this judgment by the defendant; HELD:

1st. That the action of the court below, granting the new trial, unless the remittitur was entered, was a matter within the discretion of that court, and cannot be reviewed here.

2nd. The judgment for the reduced sum was a judgment on the verdict and an appeal therefrom brings before this court the exceptions taken at the trial, in the same manner as if the motion for a new trial had been unconditionally refused, and the judgment had been rendered on the verdict for the whole sum. 

COUNSEL:
William Schley and Reverdy Johnson for, and by G. L. Dulany against, the motion.  

JUDGES:
This motion was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*272]  BARTOL, J., delivered the opinion of this court.
In this case two appeals were taken, one from the judgment of the 19th day of July 1859, and the other from the judgment rendered on the 31st day of March 1860. Motions have been made, by the appellees, to dismiss both these appeals; but as the former has been abandoned by the appellants' counsel in open court, it is only necessary to dispose of the motion to dismiss the appeal from the judgment rendered on the 31st day of March 1860.
Since the decision of the cases of Hannon vs. Robey, 9 Gill 440, and Dugan vs. Hollins, 11 Md. 41, the law is well settled, that if the appeal be taken in time, the delay in the transmission of the transcript of record to this court, furnishes no ground for dismissing the appeal, unless [**4]  it affirmatively appear that such delay is by the default of the appellant.
The other reasons assigned in support of the motion, have been carefully considered, but we are unable to perceive their force. The facts disclosed in the record, and recited at length in the appellees' motion, show that, at the trial below, "various questions of law arose and were decided by the judge of the 

 [*273]  Superior court, to whose decisions exceptions were taken by the appellant, at whose instance bills of exceptions were signed and sealed by the said judge," and have been transmitted to this court. Under these circumstances it cannot be said, "the record does not show any basis for said appeal," as alleged in the motion.
It is true that the trial at which the exceptions were taken, resulted in a verdict for the sum of $ 35,788.53, and that afterwards on the motion of the defendant below for a new trial, the court passed its order of the 31st day of March 1860, adjudging that the defendant was entitled to a new trial, and that such new trial would be granted, unless the plaintiffs below would forthwith remit on the verdict the sum of $ 6195.14, which remittitur was made by the plaintiffs [**5]  below, and a final judgment was entered for the reduced sum, and the appeal before us is from that judgment. The appellees are in error in supposing that this appeal brings before us only the action of the Superior court, subsequent to the verdict. Such action, being within the discretion of that court, cannot be reviewed here. But the judgment finally rendered on the 31st day of March 1860, for the reduced amount, was a judgment on the verdict, and an appeal therefrom brings before us the exceptions taken at the trial, in the same manner as if the motion for a new trial had been unconditionally refused, and the final judgment had been rendered on the verdict for the whole sum found by the jury.
Motion overruled. 

46 of 196 DOCUMENTS 

RICHARD COLVIN vs. ELISHA WARFORD, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 273; 1862 Md. LEXIS 13 

April 4, 1862, Decided 

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

After this case was decided, as reported in 17 Md. 433, a motion was made, by the appellees, during the same term, to rescind and reform the decree, and for a rehearing of the cause. No reasons were filed in support of this motion, and the appellant, subsequently, on this ground, moved to dismiss the motion. Certain papers were then filed by the appellees, in support of their motion, the purport and effect of which are stated in the opinion of this court.  

DISPOSITION:
Motion dismissed.  

HEADNOTES:

A motion to rescind and reform a decree of this court, and for a rehearing of the cause, though made at the term in which the decree passed, will be dismissed without consideration, unless accompanied with a statement of reasons therefor, or of alleged errors in the decree.

It is too late to ask for a writ of diminution after the cause has been argued and decided by this court.

A petition was filed by the complainants for a commission to take testimony, to be heard on hearing of the motion to dissolve an injunction. Subsequently, by agreement of both parties, a commission was issued and testimony taken, which, however, was not attempted to be used or relied on, by the complainants, on the hearing of this motion. HELD:

That this action of the complainants was a waiver of their petition for a commission.  

COUNSEL:
G. L. Dulany for, and by F. W. Brune and Reverdy Johnson against, the motion.  

JUDGES:
The motion was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*274]  BARTOL, J., delivered the opinion of this court.
The motion filed in this cause on the 30th day of November 1861, "to rescind and reform the decree," passed therein, "and for a rehearing thereof," although filed during the term at which the decree was passed, yet not being accompanied with any statement of reasons therefor, or of alleged errors in the decree, would properly be dismissed without further consideration, according to the counter-motion and suggestion of the appellant,  [**2]  filed on the 20th day of January 1862. But certain papers have since been filed in support of the motion, purporting to be transcripts of certain proceedings had in the same cause, in the court from which the appeal came; which, it has been urged, on behalf of the appellees, furnish sufficient ground for rescinding the decree and ordering a rehearing.

 [*275]  We have carefully examined these transcripts, and are of opinion that they furnish no sufficient reason for disturbing the decree heretofore passed by this court. It appears from them that, on the 10th day of July 1860, before the order of the Circuit court was passed from which the appeal was taken, the appellees, who were the complainants below, filed a petition praying the Circuit court to issue a commission to take testimony in support of the allegations of the bill which had been denied by the answer; that the Circuit court had refused to grant the petition, but failed to pass any order to that effect;-- and therefore, upon the appeal, the action of the Circuit court upon the said petition was not brought before this court for review, as it ought to have been; and the object of the present motion is to cause that alleged [**3]  defect in the record to be supplied. Considered in this light, the motion would be too late, as it would be simply asking for a writ of diminution after the cause has been argued and decided here. But it is manifest that there never existed any ground for diminution. The action of the appellees in the Circuit court, was a waiver of their petition for a commission. On the 11th day of July 1860, an agreement was entered into, between the counsel for the respective parties, that a commission to take testimony should be issued, under which a commission was issued and testimony taken, subject to exception, which, however, was not used or relied upon, nor attempted to be used by the appellees on the hearing of the motion to dissolve in the Circuit court;--nor does it appear from any thing now shown, that the testimony so taken was material or sufficient to overcome the responsive allegations of the answers, by which the equities of the complainants' bill had been sworn away. We have noticed thus, at length, the grounds alleged in support of this motion, out of respect for the learned counsel for the appellees, who has pressed it upon us with great earnestness. But we have been unable to [**4]  perceive any equitable ground for interfering with the decree heretofore passed.
The motion will be dismissed with costs.
Motion dismissed. 

47 of 196 DOCUMENTS 

THE MAYOR & C. C. OF BALTIMORE, vs. JOHN ESCHBACH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 276; 1862 Md. LEXIS 14 

April 4, 1862, Decided 

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

Action brought September 5th, 1856, by the appellee against the appellants, to recover damages for default of the defendants in imposing a valid tax for the work done under a contract made by the plaintiff with the city commissioner, for the grading and paving of Hull street. All the material facts of the case are stated in the opinion of the court, and as, by that opinion, the right of the plaintiff to recover is decided against him, it is unnecessary to state the various rulings of the court below, (LEE, J.,) to which the defendant's excepted. The verdict and judgment were in favor of the plaintiff, and the defendant's appealed.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

Under the ordinances of the city of Baltimore, the city commissioner can make contracts for grading and paving, and assess taxes therefor in two classes of cases, viz: 1st, upon application of the proprietors of a majority of front feet where the street has been condemned; and 2nd, upon the like application of all the proprietors of ground fronting on the street where it has not been formally condemned.

Without such an application he is entirely destitute of the official character and power, in and by which alone he can take any lawful proceeding, or make any valid contract for such work, and the power of the mayor to approve of his determination to grade and pave, and of his contracts for the same, is limited to the same classes of cases, and controlled by the same conditions.

A contract made by the city commissioner for grading and paving, upon the application of the owners of a majority of feet fronting on a street not formally condemned, is invalid, and not obligatory upon the city, and the contractor can maintain no action against the city on the contract, nor for damages for violating or disregarding its provisions.

Though a private agent, acting in violation of specific instructions, yet within the scope of a general authority, may bind his principal, the rule, as to the effect of a like act of a public agent, as the officer of a municipal corporation, is otherwise.

The powers and duties of the city commissioner are specially defined and limited by ordinances having the character and force of public laws, ignorance of which can be presumed in favor of no one dealing with him as to matters thus conditionally within his official discretion.

A municipal corporation cannot be held liable for the unauthorized acts of its agents, though done officii colore, without some corporate act of ratification or adoption.  

COUNSEL:
G. L. Dulany, for the appellants.

According to the true construction of the laws and ordinances relating to the paving of streets, and especially of Rev. Ord. of 1850, No. 15, secs. 1 & 36, the signing of the owners of a majority of feet fronting on the street to be paved, is sufficient to vest jurisdiction over the same in the city commissioner, in every case where the title to the bed of the street was, at the of the time of the application, owned by the city authorities,  [**2]  either by a formal condemnation, or by deed or dedication. If this construction is correct, there is an end of this case, for there was sufficient evidence to be left to the jury from which they might find a dedication of this street. Angell on Highways, secs. 143 to 149. 1 Md. 525, West vs. Flannigain. But if wrong in this respect, still the city is a municipal corporation acting through its agents, and if the agent exceeds his authority, he alone is responsible and the city is exonerated. When the city commissioner, entering into a paving contract, acts within the scope of his authority, the property holders are bound; if he transcends his powers, he alone is liable:--in neither event can the city be held responsible. 2 Md. 70, Keener vs. Harrod, et al. The contract between him and the paver, is a contract private in its nature, and being a special agent, the contractor was bound to know the extent of his authority. 9 Pick., 542, Snow vs. Perry. Knowledge and extent of an agent's authority, is much more readily presumed in the case of an officer of a corporation than of an agent of a private person, because the ordinances or by-laws regulating or creating his duties, are [**3]  open to the inspection of every one. 17 Mass., 28, Salem Bank vs. Gloucester Bank. If the construction put upon the laws and ordinances by the appellee be the correct one, the city commissioner in determining to pave Hull street, clearly acted beyond the scope of his authority. The appellee before entering into the contract with the property holders through their agent, was bound to have examined into the powers of that agent. The law requires him to do so, and this court, in Henderson's Case, 8 Md. 360, have decided, that he acts in such cases at his own peril. In not doing so, therefore, he was guilty of carelessness and indifference to his own interest, and cannot ask relief from the law. The ordinance here expressly declares that in no case, whatever, shall the city be made responsible for the paving done in compliance with its provisions, and expressly requires a clause to that effect to be inserted in all paving contracts, and such a clause was inserted in the contract of the appellee. There can be no recovery as against the city on this contract. Story on Agency, see. 321. 3 Pet., 409, Fowle vs. Alexandria. 4 Gill 425, Lefferman's Case. 5 Gill 244, Morris' Case.  [**4]  All the powers of the commissioner in relation to the paving of streets, are derived from the property holders:--he is their agent, and they on the one side and the contractor on the other, are the real parties to every paving contract. The consideration moves from them to him, and the city intervenes through its officers merely to guard the public interests--to ensure the performance of the work in which the community at large are interested.

I. N. Steele and Geo. M. Gill for the appellee.

By the laws of this State the whole subject of grading, paving, opening, closing and condemning streets in the city of Baltimore, are referred to the Mayor and City Council of Baltimore, and, in the exercise of this power, Ordinance No. 15 of Rev. Ord. of 1850 was passed, regulating the grading and paving of streets. This ordinance has reference to two kinds of streets, one, a street legally condemned, the other, a street which has not been legally condemned, and in the former case the grading and paving may be done upon application of the owners of a majority of front feet, but in the latter it cannot be done except upon the application of the owners of all the ground fronting and binding [**5]  on the street. The contract in this case was made in the usual form, and we insist that the city authorities had the right to make such a contract; it was within their power, and the fact that they applied their power to a wrong object can make no difference; and in support of this position we insist:

1st. That the city commissioner is the agent of the city and not of the property-holders, and in making this contract he acted within the scope of his authority and under express power given him in words by the ordinance. The property-owners are in no sense parties to the contract, which is just as binding on the city as if the city itself had made it. 19 New York Rep., 118, Brewster vs. City of Syracuse.

2nd. The contract is to be gathered from the written instrument itself, and the ordinances which form a part of it, and so viewed the contract here is, that the city on its part should levy a valid tax for the grading and paving, and that Eschbach should do the work and not look to the city for payment. If the city has granted no tax--no valid tax--he can sue the city for the failure to do so; he could undoubtedly sue for taking it away if it had been given, and so he can for [**6]  not giving it.

3rd. The city has imposed no tax, the action of the city authorities being, in this respect, a mere nullity, and therefore the plaintiff has a right to sue for this breach of the contract. This street was never formally condemned, and there is no sufficient evidence in the case, of cession or dedication. 8 Md. 360, Henderson's case. 5 Md. 323, Moale's case.

4th. But departing from the theory of contract which the preceding points assume, the plaintiff has a right to recover in an action on the case for the negligent performance of a duty imposed upon the city. Story on Agency, secs. 127, 452. 9 Md. 178, Marriott's case. 19 Pick., 515, Thayer vs. Boston. The commissioner is not a judicial officer, and does not act judicially in such a case as this; he is a mere ministerial officer, and it was the duty of the corporation to have the work done in a proper manner, and if this be not done the city is responsible for the failure of its officers. 3 Comst., 464, White Lead Co. vs. City of Rochester. 3 Duer, 374, Lacour vs. City of New York. 1 Ind., 98, Ross vs. City of Madison. 9 Humph., 759, City of Memphis vs. Lasser.  

JUDGES:
The cause was argued before BARTOL,  [**7]  GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
COCHRAN 

OPINION:

 [*280]  COCHRAN, J., delivered the opinion of this court.
The Legislature, by the Acts of 1797, chap. 54, 1817, chap. 148, and 1835, chap. 390, conferred upon the Mayor and City Council of Baltimore full power and authority to pass all ordinances necessary to provide for the grading and paving of its streets, and in execution of the power so conferred, they, by Rev. Ord. No. 15 of 1850, imposed upon the city commissioner the duties therein particularly specified and defined, in reference to such grading and paving.
Under this ordinance, the city commissioner, with the approbation of the mayor, determined to grade and pave Hull street, from Fort Avenue to the Port Wardens Line, upon an application made by the owners of a majority of the front feet of ground bounding thereon, and accordingly advertised the work proposed for contract, although that street had never been formally condemned by the Mayor and City Council. Proposals were made for the work by John Eschbach, upon the acceptance of which, he entered into a contract, approved by the mayor, with the city commissioner, acting on behalf of the Mayor and City Council, to complete [**8]  the work on the terms proposed, in accordance with the provisions of the ordinance. The commissioner then assessed the tax imposed by the ordinance for grading and paving, and delivered his warrants for the collection of the same to the collector. The tax was collected and paid over to Eschbach, with the exception of the sum of $ 4516, assessed to certain owners of ground, who refused to pay the same, because no application to grade 

 [*281]  and pave, sufficient to give the commissioner any authority to act in the premises, had been made by the owners of the ground bounding on the portion of the street to be graded and paved. Upon these material facts, Eschbach, assuming that the Mayor and City Council were bound by his contract with the city commissioner, to impose and assess for his use, a valid tax for the work done, and that the default, in imposing and assessing such a tax, had caused damage to him, brought suit and obtained the judgment for $ 4325, upon which this appeal was taken.
The right of the appellee, to an affirmance of this judgment, depends primarily upon the liability or obligation imposed by the contract on the appellants, and as a determination of the character [**9]  of the contract in that respect will, in our opinion, conclude all questions of right involved, a consideration of other propositions, discussed in the argument of the case, will be unnecessary. In ascertaining whether the contract charges or imposes any liability or obligation on the appellants, which the appellee is entitled to enforce in this case, the ordinance to which it refers, the circumstances preceding and connected with its execution, and the capacity and power of the parties by whom it was executed, must be considered.
The city commissioner, by the 1st, 34th, 35th and 36th secs. of Rev. Ord., No. 15, of 1850, with the approbation of the mayor, is vested with power and authority to enter into and make contracts for grading and paving, and to assess taxes therefor, in two classes of cases only, 1st, when the proprietors of a majority of the feet of ground, binding and fronting on any condemned street, lane or alley, make application to him in writing, to have such street, lane or alley, graded and paved; and 2nd, when all the proprietors of the ground fronting on a street, lane or alley, not formally condemned, make a like application for grading and paving. [**10]  One or the other of these applications, as the case may be, must be made, in accordance with the provisions of the ordinance, to initiate his jurisdiction and authority in any case of grading and paving; 

 [*282]  without such an application he is entirely destitute of the official character and power, in and by which alone he can take any lawful proceeding, or make any valid contract for such work. The power conferred on the mayor, to approve of his determination to grade and pave, and also of his contracts for grading and paving, is limited to the same classes of cases, and will be controlled by the same conditions and principles. As it is admitted in this case, that Hull street, from Fort Avenue to the Port Wardens line, was never formally condemned, and that the application to have it graded and paved was made by only a part of the proprietors of the ground binding and fronting thereon, it is obvious that the application was not sufficient to bring the case within the jurisdiction conferred by the ordinance on the commissioner, nor to give him any official discretion or authority to take any proceedings, or make any contract respecting it. The fact, that the contract made, related [**11]  to a subject within the general scope of his powers, does not make it obligatory on the appellants, if there was a want of the specific power to make it. Although a private agent, acting in violation of specific instructions, yet within the scope of a general authority, may bind his principal, the rule, as to the effect of the like act of a public agent, is otherwise. The city commissioner, upon whose determination to grade and pave the contract was made, was the public agent of a municipal corporation, clothed with duties and powers, specially defined and limited, by ordinances bearing the character and force of public laws, ignorance of which can be presumed in favor of no one dealing with him on matters thus conditionally within his official discretion. For this reason, the law makes a distinction between the effect of the acts of an officer of a corporation, and those of an agent for a principal in common cases; in the latter the extent of authority is necessarily known only to the principal and the agent, while, in the former, it is a matter of record in the books of the corporation, or of public law. A municipal corporation cannot be held liable for the unauthorised acts of its [**12]  agents, although done officii colore, 

 [*283]  without some corporate act of ratification or adoption; and, from considerations of public policy, it seems more reasonable that an individual should occasionally suffer from the mistakes of public agents or officers, than to adopt a rule, which, through improper combinations and collusion, might be turned to the detriment and injury of the public.  17 Mass. 29. 19 Pick., 516. Lee vs. Munroe, 7 Cranch 366. The case of the Mayor & City Council, vs. Marriott, 9 Md. 160, we think establishes no principle inconsistent with those recognized as governing this case, as it turned entirely upon the construction of the Act of 1796, chap. 68, which was held to impose an obligation on the corporation to prevent and remove nuisances, for disregarding which it was made liable.
The appellee, in making the contract in this case, was bound to know the whole extent of the commissioner's power to make the appellants a party to it, and more especially as the ordinance, from which that power was derived, by a particular reference, was made a part of the contract itself. Its [**13]  execution, in mutual mistake of an important jurisdictional fact, with the stipulation, that the appellants in no case whatever should be responsible for private work done in its performance, inserted in compliance with the provisions of the ordinance, compels the appellee to accept the legal result of the mistake, and the hazards consequent upon the irregularities of the proceedings through which the contract was made. The determination of the commissioner to grade and pave, cannot be held as conclusive of the right to do so, and parties who presume to act upon it, must do so at their peril.  8 Md. 352.
As the contract of the appellee was entered into by the commissioner on behalf of the appellants, under circumstances which gave him no power or authority to bind them, we think they cannot be held liable in any action on the contract, nor for any claim sounding in damages for violating or disregarding its provisions.

 [*284]  Holding the opinion, that the contract imposed, no liability or obligation upon which an action in any form can be maintained, we must reverse the judgment without a procedendo.
Judgment reversed. 

48 of 196 DOCUMENTS 

ELLIS B. LONG, and WILLIAM W. BYRN, vs. FRANCIS J. CRAWFORD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 220; 1862 Md. LEXIS 6 

February 11, 1862, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit court for Carroll County.

Assumpsit, brought July 16th 1856, by the appellants against the appellee, as endorser of a promissory note for $ 459.56, dated "Woodbine, Carroll County, Md., 30th September 1854," payable at twelve months "at the bank of Westminster," drawn by one Richard L. Ensey. Plea, non assumpsit.

Exception: The plaintiffs offered in evidence the note sued on, endorsed by the defendant, (his hand writing being proved,) and by Basil Owings & Son, and the protest thereof, which stated that, "written notices of protest" were sent to the endorsers, that to the defendant being put in the post office at Westminster, directed "Woodbine, Carroll county, Maryland." The plaintiffs then proved by Ensey, the maker of the note, that it was delivered by him to James Owings & Co., (a firm composed of Basil Owings, and his son James Owings,) in part payment for store goods bought by him of that firm, and that defendant endorsed the same with full knowledge that it was to be used for that purpose, witness having bought out the store of that firm in Carroll county. The plaintiffs then offered in evidence a bill of sale, dated August 25th, 1855, from Ensey [**2]  to the defendant and one Lydia Gosnell, conveying the stock of goods then in his store at Woodbine, with all additions that in course of dealing may be made thereto, and all his other personal property, to secure said Gosnell a debt of $ 400, due by him to her on account, and to secure her as security for him to the defendant in the sum of $ 445.45, and also to secure the defendant as security for him for $ 960, purchase money due James Owings & Co., for store goods bought by him the said Ensey. The plaintiffs further proved by said Ensey, that at the time he executed this bill of sale, he owned no other property than that therein mentioned, except book accounts of the cash value of $ 150, and that the property mentioned in said bill of sale, was taken from his possession by a writ of replevin issued the 18th of March 1856, at the suit of the defendant and the said Gosnell. On cross-examination this witness proved that defendant resides at Waterloo, in Carroll county, and his post office is Windfield, in that county, and that he sometimes received his letters at Franklinville, in that county, that Windfield is about one mile and Franklinville two miles, and Woodbine six or seven miles [**3]  from his residence. The plaintiffs further proved that the same parties who did business at Woodbine in Carroll county in 1854, under the name of "James Owings & Co.," at the same time and afterwards did business in Baltimore, under the name of "Basil Owings, & Son," and that the two firms were identically the same in interest. The plaintiffs then proved by Basil Owings, one of the partners in these firms, that they sold their stock of goods at Woodbine to Ensey, and received from him the note in question, endorsed by the defendant in part payment therefor, and left the same at the bank of Westminster for collection with the name of "Basil Owings & Son," endorsed thereon; that after the note was due and sometime between the 12th and 25th of October 1855, witness met defendant at Ellicotts Mills, and had a conversation with him on the subject of this note, when defendant said he had received or had seen, (witness can not recollect which expression was used,) the protest on said note, that he would have it to pay but that he would try to secure himself out of the property he had a bill of sale for from Ensey, that after the note was due and protested as aforesaid, witness, as one of [**4]  the members of said firms, passed the same to the plaintiffs in payment of an account that he and his son, trading as aforesaid, then owed the plaintiffs, and delivered the same to the plaintiffs with the name of "Basil Owings & Son" endorsed thereon. Both parties having closed their case, the defendant asked the instructions to the jury set out in the opinion of this court. The court (NELSON, J.) granted the third prayer, and did not deem it necessary to decide upon the first and second prayers, as the third disposed of the case. To the granting of which third prayer the plaintiffs excepted, and the verdict and judgment being against them, appealed.  

DISPOSITION:
Judgment reversed, and procedendo awarded.  

HEADNOTES:

Where a general prayer, that upon the pleadings and evidence the plaintiff is not entitled to recover, is followed by particular specifications of the points upon which the opinion of the court is asked, the prayer must be read distributively, as if it had been repeated before each of the specific grounds or objections stated.

A promissory note is negotiable, as well after its maturity and protest as before, and possession of such a note by the plaintiffs, at the institution of suit thereon against the endorser, is prima facia evidence of their right to sue for the same.

An endorser of a note after its maturity and protest, said he had received or seen the protest thereof, and would have it to pay, but would try to secure himself out of the property he had a bill of sale for, from the maker. He had taken a bill of sale of all the maker's property, except some book accounts of small value, to secure this and other notes. HELD:

That this was evidence legally sufficient to go to the jury, from which they might find that notice of protest was given to the endorser, or from which they might find a waiver of notice. 

COUNSEL:
Joseph M. Palmer for the appellants.

The only question raised by the prayer, which was granted by the court below, is, whether the appellants had such an interest in this note, at the time of suit brought on it, as to enable them to sustain an action against the appellee as endorser. At the time the note was delivered to the appellants it was over-due, and protested for non-payment. The protest and notice fixed the liability of the appellee in favor of the then holders of the note,  [**5]  but it is well settled, that bills of exchange or promissory notes are negotiable, ad infinitum, until paid or discharged by the drawer or acceptor. Byles on Bills, 123 to 126. Chitty on Bills, 244. 4 Gill 326, Annan vs. Houck. 4 Bing., 390, Hubbard vs. Jackson. 3 Maule & Selw., 95, Callow vs. Lawrence. A note is negotiable after protest as well as before. 5 Munf., 388, Ritchie, et al., vs. Moore. 10 Mees. & Wels., 698, Whitehead vs. Walker. This is not a debatable question in this State after the decision of Annan vs. Houck. At the time Basil Owings & Son delivered the note to the appellants, no one can doubt but that they had a right of action against the appellee, as endorser, and having such right it was transferred to the appellants, by delivery of the note to them with blank endorsements upon it. 9 Md. 462, Kunkel vs. Spooner. 6 Gill 2, Burckmyer & Adams, vs. Whiteford. 6 Md. 516, Ellicott, vs. Martin, Love & Co. The possession of the note was prima facie evidence of the right to sue, and the court will never inquire, where the party suing is in possession of the note, whether he sues for himself or as trustee for another, nor into the right of possession, unless [**6]  on a charge of fraud. The case of Burckmyer & Adams, vs. Whiteford, is decisive of this question, for in that case the bill had been protested for non-acceptance, before it came into possession of Burckmyer & Adams, the parties suing upon it.

Oliver Miller, for the appellee.

Whether the prayer granted by the court below be right or not, if any of the propositions or prayers ought to have been granted, this court will decide the points so as to avoid controversy in the future prosecution of the suit, and it is insisted, therefore, that the first and second reasons, or prayers, not passed upon by the court below, should be considered by this court. 4 H. & J., 527, Chapman vs. Dixon. If this be so, then it is insisted that no sufficient evidence of notice of protest was given to bind the appellee as endorser; the rule is universal, that notice sent by mail to charge an endorser must be sent to his nearest post office, which was not the case here. 3 G. & J., 474, Flack vs. Green. 7 Gill 223, Bell vs. Hagerstown Bank. 6 H. & J., 172, Bank of Columbia vs. Magruder. Nor was there any sufficient evidence from which the jury could find a waiver of notice of protest. To constitute [**7]  a waiver, where the promise of the endorser to pay is relied on, such promise must be made with knowledge that the holder has not used due diligence in giving the notice, that the notice was not legally sufficient, and that he was discharged by law from payment of the note. 1 H. & J., 187, Philips vs. McCurdy. 4 H. & J., 531, Beck vs. Thompson. Story on Prom. Notes, secs. 279, 280, 364 to 366. Knowledge on the part of the endorser of the dishonor of a bill or note, is not an equivalent for notice; there must be some communication from an authorised person to the endorser, stating to him the fact or facts by which his liability has become absolute. 1 Amer. Lead. Cases, 372. 11 East, 114, Esdaile vs. Sowerby. 5 Mees. & Wels, 418, Burgh vs. Legge. 9 Sergt. & Rawle, 198, Gibbs vs. Cannon. The bill of sale or indemnity deed was not sufficient evidence of a waiver of protest, for it does not convey all the maker's property, nor does it appear that the security so taken was ample security for the note. 9 G. & J., 31, Duvall vs. Farmers Bank. 3 Md. 265, Lewis vs. Kramer & Rahn. Story on Prom. Notes, secs. 281, 282.  

JUDGES:
The cause was argued before BOWIE, C. J., BARTOL, GOLDSBOROUGH and [**8]  COCHRAN, J.  

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*225]  GOLDSBOROUGH, J., delivered the opinion of this court.
This action was brought by the appellants against the appellee to recover on the promissory note mentioned in the record. Besides the count on the note, the plaintiff's declaration contained the indebitatus and common money counts.
The defendant pleaded non assumpsit. At the trial, the plaintiffs offered the evidence stated, ante 221, 222.
The defendant then asked the court to instruct the jury, that upon the pleadings and all the evidence in the cause, the plaintiffs are not entitled to recover in this action.
"1st. Because no sufficient evidence has been offered to the jury, from which the jury can find that notice of protest was given to the defendant according to law, so as to bind him for the payment of said note in the declaration mentioned and offered in evidence."
2nd. "Because no sufficient evidence has been offered to the jury from which the jury can find that the defendant waived notice of protest."
3rd. "Because, upon the evidence offered by the plaintiffs, and upon all the evidence in the cause, the plaintiffs were not the holders of the said promissory [**9]  note at the time the same became 

 [*226]  due, and was protested for non-payment, and therefore have no right of action against the defendant, as endorser."
The court granted the third prayer of the defendant, and did not deem it necessary to decide upon the first and second prayers, inasmuch as the third prayer disposed of the case.
To the granting of the third prayer by the court, the plaintiffs excepted.
The structure of the prayer in this case is similar to that in the case of Yingling vs. Kohlhass, decided by this court at the present term, (ante 148.) In that the court say, "this general prayer is followed by particular specifications of the points upon which the opinion of the court is asked, and the prayer must be read distributively, as if it had been repeated before each of the specific grounds or objections stated."
The prayer granted by the Circuit court presents two points for our consideration: 1st, was the note in question negotiable after its maturity? and 2nd, was the possession of the note by the plaintiffs, at the institution of the suit, prima facie evidence of their right to sue for the same?
We entertain no doubt that both of these points [**10]  are with the plaintiffs, and they are affirmatively sustained by numerous authorities. See 4 Gill 326, Chitty on Bills, 243, and note, and 3 Maule. & Selw. 95, as to first point; and as to the second, see 1 Gill 146, 6 Gill 2, 6 Md. 516, 9 Md. 462. Being therefore of opinion that the Circuit court erroneously granted the defendant's third prayer, the judgment must be reversed and a procedendo ordered. Though the Circuit court did not deem it necessary to decide upon the first and second prayers, yet as they were fully argued before us, and either or both of them may arise in the further progress of this cause, we deem it proper to prevent future litigation, to express our opinion upon them.
Had the defendant insisted upon an expression of opinion from the court on these prayers, they should have been rejected, because, in the first place, we think there was evidence offered by the plaintiffs legally sufficient to go to the jury, from 

 [*227]  which they might have found that notice of protest was given to the defendant, and, therefore, there was no necessity to prove a waiver of notice, or, in the second [**11]  place, if the plaintiffs failed to offer sufficient evidence of notice of protest, still there was evidence offered by the plaintiffs from which the jury might find a waiver of notice.
Judgment reversed, and procedendo awarded. 

49 of 196 DOCUMENTS 

THE STATE OF MARYLAND, vs. THE NORTHERN CENTRAL RAILWAY COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 193; 1862 Md. LEXIS 5 

January 30, 1862, Decided 

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

This appeal is taken from an order of the court below, refusing to reinstate an injunction, and appoint a receiver as prayed in the information filed on the part of the appellant. The allegations of the information and all the facts of the case are fully stated in the opinion of this court, and in the following opinion of the court below, (KREBS, J.,) delivered upon passing the order appealed from:

"The bill in this case is filed by the State of Maryland, as mortgagee of the entire line of railroad belonging to the Northern Central Railway Company, with all the revenue or tolls thereof, praying a decree for the sale of the said railway and mortgaged premises, or so much thereof as may be necessary to raise the sum of $ 1,500,000, the estimated principal value of the annuity of $ 90,000, secured to be paid to the State by the company. The bill alleges a default on the part of the company in the payment of part of the annuity, as the ground of the relief which it asks, and also prays for an injunction, to restrain the company from the application of its revenues, to the payment of certain debts, and interest on several of its [**2]  bonds, to all of which the State claims a priority of lien by virtue of its said mortgage. It prays further, and more especially, that a receiver may be appointed, to take charge of the said railway, and other, the mortgaged premises, and work the same and apply the revenues thereof, under the direction of this court, to the arrears of the said annuity, now due, and hereafter to become due to the said State. I shall consider, first, the application for the appointment of a receiver. It is to be observed, that this is the case of a first, or legal mortgagee, who, at the time of filing his bill for foreclosure, by sale of the mortgaged premises, asks the court to appoint a receiver to take charge of the mortgaged property, and collect and receive the income and revenue thereof. According to the well established chancery practice in England, this is never done upon the application of such a mortgagee. In "Berney vs. Sewell, 1 Jac. & Walk., 627, Lord Eldon says: If a man has a legal mortgage, he cannot have a receiver appointed; he has nothing to do but to take possession. The rule about receivers is very clear; a mortgagee who has the legal estate cannot have a receiver." Daniell in his [**3]  Chancery Practice, Vol. 3, page 245, referring to this decision, says: "As the object of appointing a receiver, is to protect the property in dispute, pending a litigation, the court will not appoint a receiver, on the application of a party who possesses the power of protecting the property without it." Sturch vs. Young, 5 Beav., 557. Assuming, however, that the court will entertain the application of the first, or legal mortgagee, for the appointment of a receiver, in what cases will it be granted? After a careful examination of the decisions of courts of equity with a view to the obtaining of a correct answer to this question, I am satisfied that they establish this rule, viz: where no provision is made to give the mortgagee a lien on the rents and profits, and the property is not a sufficient security for the particular debt of the complainant asking for a receiver, and the mortgagor, or other person in possession, who is personally responsible for it, is insolvent, equity will appoint a receiver, before a decree of foreclosure. The court in Warner vs. Gouverneur, 1 Barb., 36, states the rule substantially in the above language. To the same effect are the decisions in the following [**4]  cases, 5 Paige, 39, Bank of Ogdensburgh vs. Arnold; 8 Ibid., 565, Sea Ins. Co., vs. Stebbins; 11 Ibid., 436, Astor vs. Turner; 3 Edw., 588, Shotwell vs. Smith; 4 Ibid., 413, Post vs. Dorr; 2 Halsted's Ch. Rep., 154, Best vs. Schermier; 3 Sandf. Ch. Rep., 69, Lofsky vs. Maujer; 6 Hare, 620, Meaden vs. Sealy. Now it is not pretended that there is any thing in this mortgage that gives to the State any specific lien upon the tolls and income of this road; the mortgagor is therefore entitled under it to all the rights, which, according to the decisions upon this subject, belong to the mortgagor under ordinary circumstances. The bill shows that the company has been in possession of the road, working it, and receiving the tolls and profits thereof since the alleged default, and at the time of the filing of the bill, and the law is settled, that were the mortgagor is permitted so to remain in possession of the premises, and take the emoluments and rents, he is to be treated as owner to the time of the consummation of the proceedings for foreclosure, without any liability to account to the mortgagee therefor. 2 Sumner, 144. 1 Pick, 87. 14 Ibid., 525, 531. 1 Gratt, 291. 28 Missouri, 142. 1 Jac.  [**5]  & Walk., 627. 25 Maine, 341. If the law be as last above stated, and if the rule which I have deduced from the decisions, by which courts of equity are regulated in the appointment of receivers in mortgage cases, be the true rule, then it is clear that the complainant in its bill has not stated a case which would make it proper for this court to interfere with the defendant's possession of this mortgaged property, and the receipt of the tolls and revenues thereof. But in addition to the objections to such a step, growing out of the foregoing views of the law upon this subject, there is another which, in my opinion, is insuperable. The bill prays that a receiver may be appointed, "to take charge of the said railway, and other, the mortgaged premises, and work the same," and apply the revenues thereof, &c. Upon reference to the terms of the mortgage, it will be found that the only property conveyed by it is the line of railroad, with the revenue and tolls thereof as incidents and appurtenances, but it does not transfer to the mortgagee the engines and rolling stock of the company. This court, therefore, would not have the power to put into the hands of its receiver, if it should appoint [**6]  one, the engines, cars, and rolling stock, belonging to the company, and with which the road is worked; it would thus be impossible for this court to have the road worked by a receiver. The cases in which the court has had charge of manufacturing establishments and of other works, and had them conducted by its officers or agents, have been those in which the mortgagor has transferred to the mortgagee all the machinery and apparatus necessary to put them in operation, or to carry on the business for which they were designed. That has not been done in this case, and the court has no power of supplying itself with the means requisite for the working of this road, and conveying passengers and freight thereon. For these reasons I must decline the appointment of a receiver, as prayed in the complainant's bill. The application for the injunction and receiver in this case has been submitted after argument, upon the bill, petition, and the answers of the defendant, and I am of opinion that this court should not order an injunction to restrain the defendant as prayed by the complainant, it appearing from the record that the company relies upon various defences, and denies altogether any default [**7]  or liability to the complainant at the time of the application, which considerations alone have much weight with the court in influencing its refusal to grant either the injunction or receiver. The conclusions to which I have arrived upon the points considered in the foregoing opinion, renders it unnecessary for me to examine the various important questions presented upon the record, and argued by the solicitors of the respective parties."

The order refusing to reinstate the injunction and appoint a receiver, was passed on the 29th of October 1861, and the appeal therefrom was taken by the State on the 4th of November following, and on the 13th of December following, the Legislature passed an Act, (Act of 1862, ch.2;) "That the Court of Appeals be, and same is hereby authorised and requested at the earliest convenient day during the sittings of the present term of said court, to entertain the appeal of the State of Maryland from an order of the Circuit court for Baltimore city, passed on the 29th of October 1861, in a cause in said court, on the information of the State of Maryland against the Northern Central Railway Company and others; and to hear the same appeal on the transcript [**8]  of the proceedings in said cause, now filed in the office of the clerk of the Court of Appeals, and to determine thereupon all such questions as may be fairly presented by the said transcript, touching the construction and operation of the mortgage from the company to the said State, and the equity of the State to be relieved by the issuing of an injunction and appointing a receiver, as prayed; and the right of the said company to off-sets or discounts, as claimed in said cause, to the end that this General Assembly may be able to devise such measures, if any, as may be required to do right as between the State and the said company." 

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

The Legislature has power to confer on the Court of Appeals the right to hear appeals in special cases, but such a law, to be constitutional, must leave the judicial functions of the court untrammelled.

The mere enumeration, in such a law, of the questions referred to the appellate court, which questions were all necessarily involved in the decision appealed from, neither enlarges nor restricts the powers of the appellate court, nor invests it with original jurisdiction.

The revision of the interlocutory orders and decrees, affecting rights of courts of original jurisdiction, is as much an appellate power as the revision of their final decrees; interlocutory judgments and decrees, affecting rights, must, so far as they go, have the same basis as final judgments and decrees.

Corporations owing their corporate existence, in part, to the State of Maryland, and exercising their franchises therein, may be restrained here from expending their funds for any other than corporate purposes anywhere.

A plea, by a corporation, to the jurisdiction of a Maryland court, on the ground that the corporate property lies partly in another State, or that its corporate existence is derived, in part, from a charter of another State, is not tenable.

Such a corporation must, for the purposes of justice, be treated as a separate corporation by the courts of each State from which it derives its being; that is, as a domestic corporation to the extent of the State in which it acts, and as a foreign corporation as regards the other sources of its existence.

The Northern Central Railway Company, whose road lies partly in this State and partly in Pennsylvania, and was chartered by both States, executed a mortgage of the entire line of its road, with all the tolls and revenues thereof, to the State of Maryland, to secure the payment thereto of an annuity of $ 90,000, and under this mortgage the State of Maryland stood as second and third incumbrancer; HELD:

That upon its being shown that this company, in violation of its duty, was applying, and intended to continue to apply, its revenues, the only means of paying this annuity, to the payment of junior incumbrances, this court ought to interfere, upon the application of the State, to the extent of the limits of its jurisdiction, by injunction, and the appointment of a receiver of the mortgaged property.

As a general rule, an injunction before final hearing does not necessarily prejudice any party: its province is, to preserve the property or fund in controversy, and effect ultimate justice.

In cases of waste or nuisance, an injunction will be granted; where a mortgagor in possession is committing waste, equity will restrain him, for as the whole estate is the security for the money advanced, the mortgagor ought not to be allowed to diminish it.

In general where personal property, or the rents and profits of real estate in dispute, are in imminent danger of being wasted, a receiver may be appointed to take care of it for the benefit of all concerned, during the controversy.

Equity will appoint a receiver at the instance of parties beneficially interested, where there is no fraud or spoliation, if it can be satisfactorily established there is danger to the estate or fund, unless such a step is taken.

A receiver is proper if the fund is in danger, and this principle reconciles the cases found in the books; fraud, or imminent danger, if the immediate possession should not be taken by the court, must be clearly proved, and it is not against public policy to appoint a receiver over the property of corporations.

A mortgage of the entire line of a railroad, with all the tolls and revenue thereof, covers not only the line of the road, but all the rolling stock and fixtures, whether movable or immovable, essential to the production of tolls and revenue.

A motion to reinstate an injunction is equivalent to an application for an injunction after bill and answer filed, and places the parties in the same attitude, as to the facts to be considered, as upon motion to dissolve upon coming in of an answer.

In such a case the court is confined to the facts stated in the bill, and to the answer to those facts; if the facts of the bill be admitted, or not denied, or if new matter be set up by way of avoidance, the injunction will be continued; matter set up in avoidance or discharge, where the matter of avoidance is a distinct fact, must be proved.

In answer to a bill filed by the State against a railroad company, to enforce payment of an annuity, secured by a mortgage of the company's road, tolls, and revenue, the company, in its answer, set up, by way of off-set or discount, the fact, that certain bridges on its road were destroyed by the mayor and police commissioners of Baltimore, and with the approval and sanction of the governor of the State, and claimed a large sum for such damage and waste. HELD:

That there is no principle of discount, set-off or recouper, which would authorize this court to recognize such a claim as a debt, obligation, or liability, for damages liquidated or unliquidated.  

COUNSEL:
Milton Whitney and Thos. S. Alexander, for the appellant.

1st. The appeal is properly before this court. Upon the Code, itself, it is submitted, the appeal is properly taken from the order refusing the injunction. But all difficulty upon the point is removed by the special Act providing for this appeal. The cases cited on the part of the appellee show that, the Legislature has power to pass such a law, provided this court is left free in the exercise of its judicial functions. The law in question simply authorizes [**9]  the appeal to be heard at the present term of the court, and requests the court to decide thereon, the questions, and the questions only, which the court below must of necessity have decided, in passing the order appealed from.

2nd. The revenues of the company, by the terms of its mortgage to the State, are dedicated to the payment of the annuity recovered by that mortgage, and the State is entitled to an injunction in order to restrain the company from misapplying its revenues to other purposes. Eden. on Inj., 205. 2 Johns. Ch. Rep., 148, Brady vs. Waldron. 3 Atk., 210, Robinson vs. Litton. 1 Dick., 75, Usborne vs. Usborne. 2 Story's Eq., secs. 915 to 918. 2 Hare., 239, King vs. Smith. 2 Bland, 461, Murdock's Case. 1 Md. Ch. Dec., 87, Brown vs. Stewart.

3rd. The answer of the company admits, that revenues which were dedicated by the mortgage to the payment of this annuity, have been applied to other purposes, and this misapplication, thus confessed, entitles the State to a receiver in order to prevent a further misapplication. This equity does not arise out of, or depend upon, the inadequacy of the fund, if properly applied, to satisfy the charge, but upon the fraudulent [**10]  intent which, in the absence of mala fides, is to be inferred from the fact of misapplication. 3 Johns. Ch. Rep., 48, Boyd vs. Murray. 13 Ves., 266, Middleton vs. Dodswell. 12 Ves., 4, Anonymous. 2 Story's Eq., sec. 836. 5 Paige, 38, Bank vs. Arnold. The jurisdiction of a court of equity to interfere by injunction and receiver, over the affairs of a corporation like this, and in a case like this, cannot be questioned. The Supreme Court has decided it in Covington Drawbridge Co., vs. Shepherd, et al., 21 How., 124, 125; White Water Valley Canal Co., vs. Vallette, et al., 21 How., 422. See, also, 31 Eng. Law & Eq. Rep., 436, Evans vs. Coventry. The mortgagee can enter and appoint a receiver, and then call on a court of equity to receive the accounts of the receiver, and if he can do this, why can he not apply to the court, in the first instance, for the appointment of a receiver?

4th. The order of the court below supposes that the State is the prior mortgagee of the entire fund, and by entry into possession may constitute itself the receiver of the entire revenues of the road. In fact there are incumbrances on different parcels of the road, which are entitled to priority over that [**11]  of the State. And it is not true, as a universal proposition of law, that equity will not aid the mortgagee of the legal estate. He is entitled to the aid of the court whenever the management of the estate requires an unusual degree of skill, labor and responsibility, or when the number and application of prior and subsequent liens, would expose the mortgagee to unreasonable hazard in the application of the net profits. Both conditions are shown to exist in this case. 2 Story's Eq., secs. 829, 830, 837, 838. 2 Bland, 461, Murdock's Case. 1 Md. Ch. Dec. 87, Brown vs. Stewart. 3 Daniell's Ch. Pr., 1950 to 1958. Fisher on Mortgages, secs. 401, 911. The decisions of this court show, that a court of equity will interfere and appoint a receiver upon the application of a mortgagee. 10 Md. 466, Rose, et al., vs. Bevan, et al. 11 Md. 365, Blondheim vs. Moore. Ibid., 452, Triebert vs. Burgess. 12 Md. 315, Nusbaum vs. Stein.

5th. For the purposes of the present appeal it is not necessary to discuss any question in reference to the powers of the receivers when appointed, or to the authority of the court to enforce any order which the equity of the case may require. It is to be [**12]  presumed that, the right being declared, the company will yield a ready obedience to the orders of the court. Be this as it may, the court can have no difficulty in putting the receiver in possession of so much of the mortgaged premises as may be found within the State of Maryland.

6th. The question then is, what does this mortgage cover and convey? We insist it not only includes the road-bed, but also the rolling stock, and other properties which are necessary for the working of the road and the production of profit therefrom. Looking to the morality of the case, this mortgage should cover the same property as that covered by the mortgages under the previous laws of 1834, ch. 241, sec. 10, 1837, ch. 302, and 1838, ch. 395, that is, all the property of the company; such was undoubtedly the intent of the State when it received this mortgage. Is there any thing upon the face of the mortgage to prevent this construction of it? It is to be so construed as to effectuate the intent of the parties, and in this case most strongly against the grantor. It conveys the entire line of the railroad with all the revenues and tolls thereof. What passes by the terms, "line of a railroad?" A "railroad"  [**13]  is not simply the track of the road, but all the rolling stock necessary to constitute it a railroad; it involves the franchises and all that is necessary to make it a railroad as generally understood. Locomotives, cars, &c., are a part of the railroad necessarily incident to it. Locomotives and cars are like the shuttle to a loom. A grant of a loom would pass the shuttle. Every thing necessary to work the road passes by the grant of the railroad. Fish in a fish-pond, doves in a dove-cot, deer in a park, all pass as parcel of the property, vellein regardant passes, as parcel of the manor. Where then is the inconsistency of saying a locomotive attached according to the nature of the subject for the purpose of working the road, passes as parcel of the road? But the authorities are clear on the point. 25 Barb., 308, 310, Seymour vs. Canandaigua Rail Road Co. Shep. Touch., 80. 1 Simons, 480, Lushington vs. Sewell. 3 Green's Ch. Rep., 377, Willink vs. Morris Canal Co. 25 Barb., 484, Farmers Co., vs. Hendrickson. 6 Greenlf's Rep., 154, Farrar vs. Stockpole. 18 B. Munroe, 446, Phillips vs. Winslow. 18 New York, 28, Murdock vs. Gifford. 3 Mason, 464, Powell vs. Manf. Co. 1 Kernan, 125, Bishop [**14]  vs. Bishop. 32 New Hamp., 484, Pierce vs. Emery.

7th. The claim of the company for off-sets or discounts, is in the nature of unliquidated damages for an illegal trespass which cannot be assessed by a court of equity, and if capable of ascertainment, could not be set off against the claim of the State as mortgagee. Barbour on Set-off, 17, 19, 32, 83, 87, 88, 91. Code, Art. 75, secs. 12, 13. 25 Ala., 492, Pulliam vs. Owen & Russell, 10 Cush., 92, Pitts vs. Holmes. 3 Johns. Ch. Rep., 351, Duncan vs. Lyon. 15 Wend., 55, Downer vs. Eggleston. The governor had no authority to commit, or direct or assent to the aggressions complained of, and if he did as alleged, it must have been under the pressure of State necessity, for which the Legislature alone can award compensation.

J. Mason Campbell and Reverdy Johnson, for the appellee.

1st. The case must be dismissed for want of jurisdiction in this court to entertain the appeal. By the Constitution, Art. 4, sec. 2, it is declared that this court shall have appellate jurisdiction only, and by the Code, Art. 5, secs. 21, 25, no appeal lies from a refusal to grant an injunction, where, as here, the order was passed, not upon the bill,  [**15]  but after answer filed, (17 Md. 62, Steigerwald vs. Winans,) nor from a refusal to appoint a receiver. It is clear, therefore, that but for the Special Act of 1862, this appeal must be dismissed. Is that Act constitutional? It is conceded that the Legislature may pass an Act authorising an appeal, in a case where, by the general laws, no appeal could lie, but such an Act to be constitutional, must authorise an appeal so as to bring up the case, and the case only, that was before the court below, leaving this court perfectly free and untrammelled as to the mode and manner of administering justice between the parties. The special Act in question does not simply direct this court to decide the case that was before the court below, it goes further, and directs this court to decide other questions, nearly all matters which arise and are to be decided in the case on final hearing. It does not propose that this court shall exercise appellate power only, but under color of the exercise of such power it confers original jurisdiction. It not only authorises and directs this court to hear the appeal from the order complained of, but requires it to determine thereupon all such questions as [**16]  may be fairly presented by the transcript, touching the construction and operation of the mortgage from the company to the State, and the equity of the State to be relieved by an injunction and receiver as prayed, and the right of the company to off-sets or discounts, as claimed in the cause:--matters proper to be decided only on final hearing, and which this court, on appeal from this order, cannot determine without exercising original jurisdiction. It is submitted, therefore, that this law is unconstitutional. 8 G. & J., 386, Lawrence vs. Hicks. 12 G. & J., 285, Prout vs. Berry. 2 Gill 147, Prout vs. Berry.

2nd. But taking the bill and answers together, there was no default existing on the part of the company at the time of the application for an injunction and a receiver. All the money due the State under the mortgage had been paid, but the State claimed a further sum, which is not admitted but denied to be due. The amount thus in controversy grows out of a serious injury to the mortgaged property committed by the mortgagee, and involving great and consequential damages, to the amount, and of the character, stated in the answers. On final hearing the proof will be weighed,  [**17]  upon which this injurious waste by the mortgagee of the mortgaged property is charged, but, for the present motion, it is a sufficient defence, that the amount which alone constitutes the alleged default is denied and is in controversy. Whether payment was made or not, is a matter to be decided on final hearing alone; a decision upon an interlocutory application is final as to the matter decided, and the fact of payment, thus in dispute, cannot be decided upon the hearing of this motion. The company had the right to claim these damages as against the claim under the mortgage. 9 Gill 89, Smith, et al., vs. Donnell. Coote on Mortgages, 367. 1 Bland, 156, McKim vs. Thompson. The company was in no default; the State's own agents destroyed the bridges and diminished the revenue.

3rd. But even if the answers be thrown out of consideration, upon the bill alone, neither an injunction nor receiver can go. There is no jurisdiction in equity to do, in this case, and against this defendant, what is asked. 2 Johns. Ch. Rep., 384. Atty. General vs. Utica Ins. Co. 6 Eng. Railway Cases, 386, 395, Russell vs. East Anglian Railway Co. 17 How., 330 to 335, Booth vs. Clark. Even if there were [**18]  jurisdiction, the mortgage is only of the road, and not of the rolling stock. By the laws relating to this road and company, it will be seen that the State asked, and the mortgage conveyed, only a lien upon the road, a property worth an amount more than ten times sufficient to pay this annuity. In the preceding laws, when other property is designed to be covered, it is specially provided for--here the object was to give a lien upon the road only. As there could then be no appointment of a receiver of the rolling stock, to put the road into the hands of a receiver would accomplish nothing but ruin. Cars used on a railroad are not fixtures. 3 Md. Ch. Dec., 201, McKim vs. Mason. 11 Md. 89, New England Car Spring Co. vs. Balt. & Ohio Railroad Co. But will the court put the property of this company in the hands of a receiver, when it is already in the hands of directors--officers appointed by the State itself? The power to appoint a receiver in such a case, is a power to turn out the directors, and put some one else in their places; but, the power to remove directors is a power to be exercised in a court of law;--there is no such power in a court of equity. This court has no jurisdiction [**19]  over that part of the road that lies in the State of Pennsylvania,--it can appoint no receiver over that portion of the road,--and the only effect of appointing a receiver over the Maryland portion of the road, would be to remove the offices of the road, and the collection of all the tolls and revenue to the Pennsylvania end of the road, and this State might thus lose altogether its annuity. But, as a conclusive answer to the relief here asked, it is sufficient to say, that all the stipulations which the State asked for in the law directing this mortgage to be taken and accepted, and all that was thought fit to be inserted, is, that the State should have, on default made, the power to sell the road. Neither the law nor the mortgage stipulates for an injunction or a receiver. And, in any event, in the absence of an averment that the security is insufficient, there can be no receiver appointed; in this case there is no allegation of the insolvency of any of the parties or of the company, nor is there any sufficient averment of apprehended loss, and unless such a case is made out, a receiver is never appointed. 1 Barb., 36, Warner vs. Gouverneur's Executors. 11 Paige, 436, Astor vs. Turner.  [**20]  

JUDGES:
The cause was argued before BOWIE, C. J., BARTOL, GOLDSBOROUGH and COCHRAN, J.  

OPINIONBY:
BOWIE 

OPINION:

 [*205]  BOWIE, C. J., delivered the opinion of this court.
The rights and liabilities of the parties to this cause, springing from and depending, in a great measure, upon the Acts of the General Assembly, in the proceedings referred to, we deem it necessary to a proper understanding of the character and magnitude of the interests involved, to prefix a summary of their provisions.
By an Act of the General Assembly of Maryland, passed on the 10th of March 1854, entitled, "An Act to authorize the consolidation of the Baltimore and Susquehanna Rail Road Company with the York and Maryland Line Rail Road Company," &c., the stockholders of the Baltimore and Susquehanna Rail Road Company were authorized to unite and consolidate their company, or corporation, with the York and Maryland Line Rail Road Company, the York and Cumberland Rail Road Company, and the Susquehanna Rail Road Company in the State of Pennsylvania, so as to form and constitute one 

 [*206]  company or corporation, to be called, "The Northern Central Railway Company," upon certain conditions therein expressed, among [**21]  others, "that all existing contracts, engagements and liabilities of the Baltimore and Susquehanna Rail Road Company shall continue to bind said company and its property, as fully as before the consolidation therein authorized, or that the said existing contracts, engagements and liabilities shall be duly adopted and assumed by the consolidated company."
On the same day, by an Act, entitled, "An Act to provide for the sale of the interest of the State of Maryland in the Baltimore and Susquehanna Rail Road Company, and for the completion of the Northern Central Railway," &c., it was enacted, "that whenever the corporation, authorized by this General Assembly to be created by the consolidation of the Baltimore and Susquehanna Rail Road Company," and the other companies above mentioned, to be known by the name of the Northern Central Railway Company, "shall have been duly established and erected, in conformity with the Act of this General Assembly, and an Act of the General Assembly of Pennsylvania, authorizing the same, and shall execute and acknowledge, and cause to be recorded in due form of law, in the city of Baltimore, and in all the counties of Maryland and Pennsylvania,  [**22]   in which the same may be, a mortgage to the State of Maryland of the entire line of railroad belonging to the said company, from Baltimore to Sunbury in Pennsylvania, with all the revenue or tolls thereof, to secure to the State of Maryland the payment of the annuity of $ 90,000, and shall, in all respects, comply with the provisions of this Act," then the treasurer of the State was authorized to execute and deliver to said company and its assigns, in perpetuity, a conveyance and release of all the estate and interest of the State of Maryland, in the then Baltimore and Susquehanna Rail Road Company, and all its property, whether as stockholder, creditor or mortgagee. It was further enacted, that the consolidated company, in the execution of the mortgage, should covenant and bind itself to pay to the State of Maryland from its 

 [*207]  date, the annuity of $ 90,000 per annum, payable into the treasury of the State in quarterly payments; that the annuity should be extinguishable at any time within ten years thereafter, upon the full payment of one million five hundred thousand dollars, with all interest that may be due; that the mortgage should contain the usual [**23]  conditions in such deeds, with a clause to authorize the sale of the mortgaged property, at any time after three months subsequent to a default of the company to pay the whole amount of the annuity, which may fall due in any one year; and upon the execution of the said mortgage and its delivery to the treasurer, then the said treasurer should execute the conveyance and release above mentioned. It was further provided by said Act, that the said mortgage, so far as it shall comprehend and include that portion of the road of the consolidated company, which now belongs to the Baltimore and Susquehanna Rail Road Company, and which was heretofore mortgaged to the State of Maryland, shall be, in all respects, entitled to the same priority which now appertains to the existing mortgage on the property of the said Baltimore and Susquehanna Rail Road Company, and that said mortgage, so far as it shall comprehend and include all that portion of the road of the consolidated company, not now belonging to the Baltimore and Susquehanna Rail Road Company, shall be entitled to a priority over any liens upon the same, bearing date and recorded after the the first day of March 1854, "it [**24]  being the intent of this Act, in releasing to the consolidated Company the mortgage or mortgages heretofore given to the State by the Baltimore and Susquehanna Rail Road Company, and taking another mortgage, to retain in the new mortgage the same priority of lien which the State now holds on that part of the road heretofore mortgaged as aforesaid, and also to obtain the additional security of the mortgage, by the consolidated company, of its interest in all the remaining portion of the road, between Baltimore and Sunbury." Vide Act of 1854, ch. 260, secs. 1, 2, 3.
On the 27th of January 1855, the Northern Central Railway 

 [*208]  Company by their deed, reciting and referring to the Acts of Maryland and Pennsylvania, as authorizing the same, assigned, transferred and conveyed, unto the State of Maryland, for the considerations therein mentioned, "the entire line of railroad belonging to said company, from Baltimore to Sunbury in Pennsylvania, with all the revenue or tolls thereof," covenanting to pay to the treasurer of Maryland, an annuity of $ 90,000, in quarterly payments, in the manner provided and required by the Act of 1854, ch. 260, and in default thereof,  [**25]   the State of Maryland was thereby authorized to sell the above mortgaged premises, and all the estate, right, title, interest, property, claim and demand at law or in equity, as well of the State of Maryland as of the Northern Central Railway Company, in and to the said mortgaged premises, and every part thereof, as is provided by the third section of the Act of 1854, ch. 260.
The State filed its information on the 18th of December 1860, in the Circuit court for Baltimore city, suggesting that the Northern Central Railway Company was then in arrear $ 92,500, of the principal annuity, besides interest;--that it realized profits more than sufficient to pay the State, which, in violation of its covenants, were misapplied, and appropriated to the payment of junior obligations, and especially to the payment of interest on bonds, amounting to $ 2,500,000, issued long after the mortgage, and it apprehended the company intended to apply its future earnings, and earnings then in hand, in payment of interest on said bonds;--that the company had no effects out of which the State could realize its aforesaid claims, except the property mortgaged, and had no adequate means to enforce the  [**26]   payment of arrears, except by sequestrating the tolls and revenue.
The information prayed that the company be enjoined from applying the tolls and revenue to any other purpose, save only to the cost of working the railway, and maintaining the same in good order; and that a receiver may be appointed to take charge of said railway and other mortgaged premises, and work the same, and apply the revenues thereof, under the direction 

 [*209]  of this court, to the arrear of the aforesaid annuity now due, or hereafter to be due; and that the said railway, and other, the mortgaged premises, be sold for the payment of the entire claim of the State, estimated at $ 1,500,000; and for other relief.
An injunction having issued, as prayed, the respondents, the Northern Central Railway Company, filed their answer on the 27th of February 1861, in which, after admitting the mortgage, the arrears of the annuity, they allege "no subsequent payments have been made on account of said annuity, owing to the fact of all the net receipts of said road being absorbed by other legitimate and more urgent objects."
"And it further saith, that the bonds, subsequent in priority to the annuity, upon which [**27]  it has paid the interest, were bonds given for construction, and that it was considered a matter of necessity to make such payment, in support of its credit, which would have been utterly ruined by a default, but which, by this means, was so sustained, as not to drive it to the extremity of making all its purchases for cash: an extremity which it is not too much to say, would have practically brought the company's operations to a stand." The respondents further say, the State has not the first lien on the road in Maryland or Pennsylvania, but there are $ 150,000, prior liens on the former, and $ 700,000, prior liens on the latter;--that the State had no right to file the information, on the day it was filed, and objects that this court hath no jurisdiction of the case made by the information, and prays to have the benefit of the objection, as fully as it could have by any form of pleading.
The injunction granted, upon filing the bill, or information, was, on motion of the complainant, and with the consent of the Northern Central Railway Company, dissolved, without prejudice to the equity of the complainant, to move that the same shall be reinstated at any time thereafter,  [**28]  and the motion for a receiver was postponed. The complainant, afterwards, moved to reinstate the injunction and appoint a receiver, whereupon the respondents, the Northern Central Railway 

 [*210]  Company, obtained leave to file a supplemental answer, which being filed, the application for an injunction and receiver, after argument, was overruled and denied.
The respondents (the appellees) insist:--
1st. That taking the bill and answer together, there was no default on the part of the company, at the time of the application.
2d. Throwing out of consideration the answer, there is no jurisdiction in equity to grant on the bill alone the injunction, or appoint a receiver.
3d. The case should be dismissed, for want of jurisdiction to entertain the appeal.
The last position, lying at the threshold, (and being decisive of the action of the court,) will be considered first.
The 21st and 25th sections of Article 5 of the Code, and the interpretation of the latter section, in the case of Steigerwald vs. Winans, 17 Md. 62, have been referred to, in support of the motion to dismiss the appeal. We are saved the necessity of examining these, by the special Act passed [**29]  at the present session, entitled "An Act authorising the Court of Appeals to hear and determine, at the present term thereof, the appeal of the State of Maryland, on the information of the State of Maryland, against The Northern Central Railway Company." It is too late to question the power of the Legislature, to confer on the Court of Appeals the right to hear appeals in special cases; but such a law, to be constitutional, must leave the judicial functions of the court untrammelled. Prout vs. Berry, 2 Gill 147.
The Act above cited, does not divest any right or infringe upon the judicial powers of the court. It refers to it all such questions as may fairly be presented by the transcript, touching the construction and operation of the mortgage from the said company to the State, and the equity of the State to be relieved by the issuing of an injunction and appointing a receiver as prayed, and "the right of the company to off-sets or discounts as claimed in said cause." All these questions were necessarily 

 [*211]  involved in the decision of the court below; the enumeration of them neither enlarged nor restricted the powers of this court, nor invested it with [**30]  original jurisdiction. The revision of the interlocutory orders and decrees affecting rights, of courts of original jurisdiction, is as much an appellate power, as the revision of their final decrees. The judgment of a court of law is the legal result of the facts admitted by the parties or found by the jury, and so too, the decree of a court of chancery is the result, according to principles of equity, arising from the facts found in the bill, answer, proceedings and proofs. Such is the acknowledged foundation of all final judgments and decrees; but interlocutory judgments and decrees affecting rights, must, so far as they go, have a similar basis; because no court of judicature can arbitrarily make a partial any more than a total disposition of the rights of things, and persons without such a foundation. The judge can go no further than to apply the rule to the case, or to pronounce the law upon the facts either partially or wholly. This application constitutes the judgment, and, when authorised by law, it is the duty of the appellate court to determine whether it is erroneously applied or pronounced. We have only to refer to the practice of the English Courts, and to the legislation [**31]  on the subject of appeals from interlocutory orders, which is familiar to the profession, to furnish numerous examples.
The Act for an appeal in this case, being, in our judgment, constitutional, it devolves upon us to determine whether the bill and answers taken together, present a case for an injunction and receiver, and what property is subject to the complainant's lien. It is manifest from the Acts of Assembly above referred to, the bill, answers and exhibits, that in the consolidation of the several companies therein named, and the merger of the Baltimore and Susquehanna Rail Road Company in the Northern Central Railway Company, all the existing contracts of the Baltimore and Susquehanna Rail Road Company were to continue to bind the said company and its property, 

 [*212]  and that they were adopted and assumed by the consolidated company; that in consideration of the release of the State of its mortgage or liens, on the property of the Baltimore and Susquehanna Rail Road Company, the Northern Central Railway Company was to mortgage the entire line of railroad, from Baltimore to Sunbury, with all the revenue and tolls thereof; that the consolidated company should covenant [**32]  and bind itself to pay the annuity to the Treasury of Maryland in quarterly payments, and in addition to the usual covenants, the mortgage should contain a power to sell the interest of all parties to the same.
The bill alleges that the quarterly payments of the annuity are in arrear to the amount of $ 92,500; that the defendants are in possession of the road, realizing large profits over and above the cost and charge of working, managing and keeping the same in repair, and that the excess of profits has been more than sufficient to satisfy the State's annuity; that the defendant, in violation of its covenants, has applied from time to time, large sums of money, parcel of said excess of profits, to the payment and satisfaction of other debts junior in lien and obligation. The original and supplemental answers admit these allegations, but the latter introduces new matter not responsive to the bill, and which is not properly before us at this stage of the cause, as will be hereafter shown.
The respondents, in attempting to excuse their default on the plea of necessity, exhibit such a degree of extreme pecuniary pressure, as made it the imperious duty of the court to assert its legal [**33]  rights in order to protect, if not to preserve, the large amount loaned to the respondents. If the condition of the company was such, that the misapplication of its pledged tolls and revenues, was necessary to a support of its credit, which would have been otherwise utterly ruined, or the operations of the company practically brought to a stand, the crisis was such, as to require a creditor having only a second lien on a part of the respondents' property, and a third and fourth on other parts, which lie beyond the jurisdiction of the State, to 

 [*213]  be vigilant in the assertion of its rights, and appeal to the preventive and conservative powers of a court of equity for their protection.
The plea to the jurisdiction of the court below, is not tenable, either on the ground that the respondent's property lies in part in another State, or that its corporate existence is derived in part from a charter of another State. Corporations owing their corporate existence in part to the State of Maryland, and exercising their franchises therein, may be restrained here, from expending their funds for any other than corporate purposes any where. 2 Bland 99, 147, 148. "Process [**34]  issued by any court of this State, against a corporation holding and exercising franchises within this State, may be served upon the president or any director, or manager, or other officer of such corporation." 1 Code, page 540, secs. 99, 101, 102. It follows, that this body politic must, for the purposes of justice, be treated as a separate corporation by the courts of justice of each government, from which it derives its being, that is, as a domestic legal entity to the extent of the government under which it acts, and as a foreign corporation as regards the other sources of its existence.
The principles upon which the preventive powers of courts of equity are exercised, are too well known to need repetition. As a general rule, an injunction before final hearing, does not determine any right, does not necessarily prejudice any party; its province is to preserve the property or fund in controversy, and effect ultimate justice. The instances in which it has been resorted to, are innumerable. In a variety of cases, as for instance, patent cases or cases of waste or nuisance, the English courts are in the habit of exercising their preventive and conservative powers, for the [**35]  purpose of preserving the subject of litigation, from waste, injury or total loss, pending the controversy. 1 Bland 576 to 579, Duvall vs. Waters. "Where a mortgagor in possession is committing waste, a court of equity will restrain him, for as the whole estate is the security for the money advanced, the mortgagor ought not to be suffered to diminish it." Eden on Injunctions, 205. 

 [*214]  In Brown vs. Stewart, 1 Md. Ch. Dec. 87, the late eminent Chancellor Johnson said, "the object of this bill, as we have seen, is not only to procure a sale of the property mortgaged for the payment of the claim of the complainant, but upon averment of the sale of a portion thereof, and the apprehended disposition of the residue by the defendant, and the consequent diminution or destruction of the security for the debt, the court was called upon to interpose its conservative power for the protection of the rights of the mortgagee. That a mortgagee, prior to the period when he may proceed to foreclose and sell the property mortgaged, may, by a bill in equity, with such averments as are contained in this bill, obtain an injunction as a preventive [**36]  remedy against the apprehended danger, has been decided by the Court of Appeals. Clagett vs. Salmon, 5 G. & J. 314. But that court has not decided nor do I find it, so far as my examination has extended, expressly decided any where, that the court will put forth its authority in this way after the debt has become due, and consequently at a period when the mortgagee has a right to ask for a foreclosure and sale of the property. I do not, however, find the contrary to be decided, and it seems to me the administration of justice would be defective if the power invoked by this bill is denied by the court."
In general, where personal property, or the rents and profits of real estate in dispute, are in imminent danger of being wasted or lost, a receiver may be appointed to take care of it for the benefit of all concerned during the controversy. 1 Bland 579, Duvall vs. Waters. Lord Hardwicke considered this power of appointment to be of great importance, and most beneficial tendency. 3 Atk. 564. 2 Story's Eq., sec. 831. It is a discretionary power exercised by the court, with as great utility to the subject as any authority which [**37]  belongs to it, and is provisional only for the more speedy getting in of a party's estate and securing it for the benefit of such persons who shall appear to be entitled, and does not at all affect the right. Danl. Ch. Pr., 1949, 1950. 

 [*215]  Equity will appoint a receiver at the instance of parties beneficially interested, where there is no fraud or spoliation, if it can be satisfactorily established there is danger to the estate or fund, unless such step is taken. Ibid., 1956. 2 Story's Eq., secs. 829, 830.
The leading cases in this State are, Clark, et al., vs. Ridgely, 1 Md. Ch. Dec. 70; Thompson vs. Diffenderfer, Ibid., 489, and Blondheim vs. Moore, 11 Md. 365. In the first it was held, that "the authority and duty of the court to appoint or not to appoint a receiver, depends upon the question whether the property is or is not in danger, in the hands of the party who may at the time be in possession. It was said by the court in the case in 1 Hopkins 422, a receiver is proper, if the fund is in danger, and this principle reconciles the cases found in the books." In the latter, all the cases are summed up,  [**38]  and this conclusion, among others, is deduced, "that fraud or imminent danger, if the immediate possession should not be taken by the court, must be clearly proved."
The complainant occupies the relation to the respondents in this case, of second and third incumbrancer; the subject of the mortgage, is not susceptible of occupation by the complainant or any of its agents, without the intervention of the courts of this State, or of Pennsylvania; the relief prayed, the sale of the railroad, cannot be effected without protracted litigation, and the tolls and revenues which are expressly pledged, are in the mean time diverted to the payment of debts of junior obligation and lien. Besides these obstacles to the ordinary remedies of a mortgagee, the greater part of the line of the railroad, lying without the State, the tolls and revenues, being claimed by adverse creditors or subject to various conflicting incumbrances, can only be collected and held by an officer of a court of equity, consistently with the rights of the parties litigant.
If the State courts have no jurisdiction over the subject of controversy, as contended by the respondents, beyond the limits 

 [*216]  of the State,  [**39]  there can be little doubt of the necessity for the interposition of the courts, to the extent of their authority. In the language of the eminent chancellor above referred to, as to that portion of the property and franchises of the respondents, lying within the limits of this State, the defendant must be treated as a domestic, and as to those exterior, as a foreign, corporation. The ultimate security for the debt, is virtually reduced by the defences set up by the respondents, to the mere lien on the line of the railroad from Baltimore to the State's limit. The additional security covenanted to the complainant, and which was the motive and consideration for the release of the complainant's first lien, is repudiated by the respondents' action.
The consideration, that the authority of this court cannot extend beyond the territorial limits of the State, in the exercise of its remedial power, does not deter it from acting in a case within its acknowledged jurisdiction, to the verge of those limits. It will not entertain a doubt that the company, owing its corporate existence, in a large measure, to the State, will recognize, with promptness, the judicial authority of its courts.
The [**40]  argument "ab inconvenienti," if admitted, would effectually preclude the complainant and all other creditors, from seeking relief in the courts of this State, against corporations, whose property and franchises extend through more States than one. Our courts have frequently exercised jurisdiction in similar cases. See Binney vs. The Canal Company, 2 Bland 99; Ches. & Ohio Canal Company, vs. Balto. & Ohio Rail Road Company, 4 G. & J. 1.
That it is not against public policy to appoint a receiver over the property of corporations, is shown by the decisions in Fripp vs. Chard Railway Company, 21 Eng. Law & Eq. Rep 53; Covington Drawbridge Company vs. Shepherd, 21 How. 112, and White Water Valley Canal Company vs. Vallette, 21 How. 414, in which cases receivers were appointed.
The case of Booth vs. Clark, 17 How. 322, shows only that the power of a receiver does not extend to the collection 

 [*217]  of choses in action, due out of the State in which the receiver was appointed. 6 English Railway & Canal Cases, 384, was a motion to commit a sheriff for contempt [**41]  in seizing in execution, property in the possession of a receiver. The vice-chancellor expressed doubts whether such an appointment was not contrary to the policy of the law, but in the discussion of the motion, the Lord Chancellor refused to entertain the question of the propriety of the order appointing the receiver.
The mortgage conveying to the complainant the entire line of railroad belonging to the said company, from Baltimore to Sunbury in Pennsylvania, with all the revenue or tolls thereof, it becomes necessary to inquire, in order to determine the extent of the power and duties of the receiver, what passes under the mortgage deed. In Seymour vs. The Canandaigua & Niagara Falls Rail Road Co., 25 Barbour 309, 310, where a railroad company executed a mortgage upon its railroad constructed and to be constructed, a question arose whether the branch track from the main tract at Tonawanda, to the Niagara river, or to the docks on the banks of the river, passed. This branch was not laid out at the time of the original location or mortgage, and was not then projected or located. It was held to be covered by the mortgage as an incident to the principal [**42]  subject of the grant, upon the maxim, that whoever grants a thing is supposed tacitly to grant that, without which the grant would be of no effect. "When a thing is granted, all the means to attain it, and all the fruits and effects of it, are granted also. It is a rule of law, that the incident passes, by the grant of the principal: whatever is essential to the use and enjoyment of the principal thing." Brooms Maxims, 198. Shep. Touch., 89. Broom, 205. 4 Kent 467. In the case of Farmers Loan & Trust Company, vs. Hendrickson, 25 Barbour 484, the mortgages were of all the pieces or parcels of land, forming the track or roadway of the company, &c., also of all engines, tenders, cars, tools, &c., together with tolls, rent or income to be had or levied. 

 [*218]  The mortgages were not filed according to the laws of New York, in any town-clerk's office, so as to make them liens on chattels. Certain judgment creditors issued executions, which were levied on locomotive engines, passenger cars, &c., constituting what is usually called the rolling stock of the company. The mortgagees sued the sheriff, claiming the rolling stock as fixtures. The [**43]  court held:--"That railway cars are a necessary part of the entire establishment, without which it would be inoperative and valueless, there can, of course, be no doubt. *** The railway is constructed expressly for the business to be done by the cars, and what evinces their essentiality in a strong point of view in this case is, that there can be no tolls, (which are expressly mortgaged,) without them. *** If railway cars were used in any other place than upon the lands belonging to the company, or for any other purpose than in the transaction of its business, or were constructed in such shape and so extensively as to become subjects of general trade, or were not a necessary part of the entire establishment, I might consider myself as compelled, by the weight of authority, to decide, that as they are not physically annexed to what is usually denominated real estate, they must be deemed personal property; but as each and all of these characteristics or incidents are wanting, the considerations I have mentioned, or to which I have alluded, leading to an opposite conclusion, require us to determine that they are included as fixtures, or necessary incidents, in a conveyance of [**44]  the real estate."
The tolls and revenues of the Northern Central Railway Company being expressly pledged by the mortgage in this case, we entirely concur with the opinion of the court in the case last quoted, that the mortgage covers not only the line of the road from Baltimore to Sunbury, but all the rolling stock and fixtures, whether movable or immovable, essential to the production of tolls and revenues.
The motion to reinstate the injunction, is equivalent to an application for an injunction after bill and answer filed, and 

 [*219]  places the parties in the same attitude, as to the facts to be considered, as upon a motion to dissolve upon the coming in of an answer. In such cases, the court confines itself exclusively to the consideration of the case, or combination of facts, set forth in the bill, out of which the equity of the injunction arose and to the answer of the defendants to those facts. Per Bland, Ch., in Canal Co. vs. Rail Road Co., 4 G. & J. 7. If the facts of the bill be admitted or not denied, or if new matter be set up by way of avoidance, the injunction will be continued. 12 G. & J. 244. An answer will not support [**45]  a matter set up in avoidance or discharge, where the matter of avoidance is a distinct fact; in such case the defence must be proved. 10 G. & J. 324.
The supplemental answer does not anywhere positively and directly qualify the admissions contained in the original answer, but indirectly and argumentatively says, that it hath paid to the State, since the information was filed, large sums on account of the annuity mentioned in said information, and that with the exception of a trifling amount for interest, believed not to exceed two or three hundred dollars, and which it is ready at any moment to settle on ascertainment thereof, there is nothing whatever due by it to the State, for the instalment of the annuity, accrued before or since the information was filed, though the State claims a further amount, which this respondent denies to be justly claimable under the circumstances hereinafter detailed.
The respondents aver, that on the morning of the 20th of April 1861, a number of bridges upon the railway of, and belonging to, the respondents, within the limits of this State, were burned, and made impassable and destroyed;--the object was to render the communication [**46]  between Baltimore and the Pennsylvania portion of the railway impracticable for passengers or freight. The agents, through whom this destruction was accomplished, were ordered and directed in the premises, by the Mayor and members of the Police of the City of Baltimore, and the Governor of the State was made aware of 

 [*220]  such order and direction beforehand, and approved and sanctioned the same. Subsequently thereto, by a formal Act passed at the extra session, the General Assembly adopted and ratified the orders and directions aforesaid, and the acts of those, who, in obedience to such orders and directions, committed the aforementioned destruction and injuries. The respondents claim that the State is responsible for the damages and waste, amounting to $ 117,609.63.
The new matters introduced by the respondents in their supplemental answer cannot, according to the decisions above cited, be considered on the motion to dissolve or reinstate the injunction. They cannot be assumed to be true without proof; and if proved, they do not constitute such grounds of set-off as are available in courts of law or equity. It is not denied, that in equity set-offs will be allowed where [**47]  reason and justice require it, although not authorised by any statutory enactment, (9 Gill 89,) yet there is no principle of discount, set-off or recouper, known to this court, which would enable it to recognize, as a debt, obligation, or liability for damages liquidated or unliquidated, the amount claimed by the respondents in their supplemental answer.
Deeming the order of the circuit court for Baltimore city, passed on the 29th day of October 1861, erroneous, the same is reversed, with costs to the appellant; and it is further ordered and decreed, that this cause be remanded to the said court.
Order reversed and cause remanded.
BARTOL, J., dissented.  

50 of 196 DOCUMENTS 

THE MUTUAL FIRE INSURANCE COMPANY IN BALTIMORE COUNTY, vs. WILLIAM GROVE DEALE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 26; 1861 Md. LEXIS 63 

November 4, 1861, Decided 

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

Covenant, brought the 12th of November 1855, by the appellee against the appellant, on a policy of insurance issued and dated the 22nd of April 1852, insuring the plaintiff against loss or damage by fire to the amount of $ 2300, on a frame dwelling, &c., "as per application."

In the application the plaintiff offered for insurance "his property" on Rhode River, in Anne Arundel county, and also assented to the charter, constitution and by-laws of the company, and the policy recites, that he had become a member of the company agreeably to said charter, constitution and bylaws. The charter, (Act of 1849, ch. 213,) by its 1st section gives the company "full power and authority to make insurance on any kind of property;" by sec. 4, the premium notes are made "a lien on any real estate" insured; and by sec. 14, any married woman, with the assent of her husband, may apply for, and have insurance on, her property. By endorsements on the policy, additional insurance was granted by the company as follows: on the 15th of December 1853, $ 2800 on building, furniture, stable, barn and contents; on the 18th of November 1854, $ 1000 on [**2]  building attached to the dwelling insured by the policy. In both the applications for these additional insurances it is stated, that the plaintiff holds "the legal title" to the property asked to be insured. The property insured was totally destroyed by fire on the 6th of December 1854, and the plaintiff brought three suits against the company, one (the present) of covenant on the insurance in the body of the policy, and two of assumpsit, to recover on the additional insurances endorsed on the policy. These suits were originally brought in the Circuit court for Baltimore county, and were removed, on suggestion of the defendant, to the Circuit court for Anne Arundel county for trial.

The defendant pleaded, 1st, a material change of occupation of the building by occupying it as a boarding school, without the notice of such change to the defendant, as required by the 8th condition endorsed on the policy; 2nd, the plaintiff was not the owner of the property, by reason whereof, the premium note was not a lien thereon; 3rd, that the plaintiff was not the owner of the property at the time the policy was executed; 4th, that the plaintiff at the time the policy was executed, represented [**3]  to the defendant that the property was his, and the policy was executed by the defendant upon the faith of such representation, whereas, in fact, it was not the property of the plaintiff. Issues were joined upon replications to these pleas, and, at the trial, exceptions were taken by both parties.

1st Exception. On the part of the plaintiff the policy and its endorsements, the applications, the premium notes and receipts for interest paid thereon, the constitution and by-laws of the company, (which are sufficiently stated in the opinion of this court,) the loss by fire, the value of the building insured in the body of the policy, and compliance with the constitution and by-laws, in giving notice and furnishing preliminary proof of the loss, were offered in evidence and proved. He also proved that, at the time of effecting the original insurance, and continually up to the time of the fire, he was in possession of the property, residing there with his wife and seven children.

On the part of the defendant it was proved that, at the time of the fire and for more than a year previous, the plaintiff kept a school in the house insured, and that two rooms were used for such school [**4]  in which fires were kept. The defendant then offered in evidence a deed, dated the 18th of July 1850, by which Speed and Waters conveyed to Jeanetta S. Deale, the wife of the plaintiff, the property described in the policy for the consideration of $ 8000, which deed was duly recorded among the land records of Anne Arundel county.

The plaintiff then proved by Winterson, the acting agent of the company in Anne Arundel county in 1853 and 1854, that at plaintiff's request he filled up for him the applications of the 15th of December 1853, and the 18th of November 1854, the blanks of said application having been produced by witness; that he received the premium notes for such insurances, and at the time of the last insurance, witness knew a school was kept in the house by the plaintiff, and, in the opinion of witness, the risk was not materially increased thereby; and that the interest on the premium notes, both for the original and additional insurances, up to January 1st, 1855, was paid by the plaintiff and received by the defendant in 1854.

The plaintiff then, for the purpose of showing that he had, at the time of obtaining the policy, an insurable interest in the property [**5]  in the nature of a resulting trust, proved by George W. Jones, subject to exception as to the admissibility of the evidence, that he witnessed a written contract between Waters and the plaintiff, made in California, dated the 28th of January 1850. By this contract, which was offered in evidence, Waters agreed to sell and have conveyed to the plaintiff the property in question for $ 12,000, of which, $ 6000 was to be paid in cash, and the balance in credit payments secured by mortgage, the plaintiff to have the privilege to avoid the contract, if he desired, upon examining the property. The cash payment of $ 6000 was paid by the plaintiff to Waters at the time, and the receipt therefor, was attested by the witness Jones. This witness then proved that, he afterwards came from California to Maryland, and examined the farm in company with Mrs. Deale, the plaintiff's wife, and became satisfied it was not worth $ 12,000, and then made a bargain for it with Waters, who had also returned from California, for Mrs. Deale, for $ 8000, of which the $ 6000 already paid by the plaintiff was computed as a part, and the residue was paid in money derived from or belonging to the plaintiff, and that [**6]  the deed was made to Mrs. Deale by direction of witness, after consultation with some of her friends, who advised it should be so made; that after the plaintiff returned some time in the summer of 1852, a conversation occurred between him and witness, in which the former objected, and said he was sorry that the property had been conveyed to his wife and not to himself. This witness also further states that, before he left California, some conversation took place between him and the plaintiff, as to whether the deed should be made to the plaintiff himself, or to his wife, and the plaintiff left it optional with witness to have the deed made to either, as witness should think best, and it was by reason of this discretion reposed in witness that he directed the deed to be made to Mrs. Deale; that witness was influenced in giving this direction by the long distance of the plaintiff from home, and his precarious state of health. The defendant still objected to the admissibility of all this evidence, but the court, (BREWER, J.,) overruled the same and permitted it to go the jury, and to this ruling the defendant excepted.

2nd Exception. After the witness Jones had given the evidence [**7]  stated in the preceding exception, the plaintiff proved by A. Randall, Esq., that some time in October 1854, the plaintiff stated to him that he desired to have some property, the legal title to which was in his wife, transferred to himself, and desired to know how it could be done; that witness advised him how it could be done, and the plaintiff then said he would furnish the papers to witness, but witness heard nothing further from him on the subject. The defendant objected to the admissibility of this evidence, but the court permitted it to go the jury, and to this ruling the defendant excepted.

3rd Exception. The defendant then proved by Carman, that, in 1852, he was its agent in Anne Arundel county, soliciting insurances and receiving applications; that in April of that year he called on the plaintiff, and remained at his house over night, that a good deal of conversation occurred between them in reference to insurance in this company; that plaintiff desired witness to fill up an application for him, and witness accordingly filled up the blanks in the application of the 22nd of April 1852, which was signed in his presence by the plaintiff, and witness received from him the [**8]  premium note of that date, and transmitted the application to the secretary of the defendant; that the proposal of the plaintiff being accepted, the policy was sent to witness who delivered it to the plaintiff, the latter paying witness at the time the cost of the policy and the interest in advance on the premium note; at that time nothing was said to witness to lead him to suspect, that the plaintiff was not the owner of the property by a legal title; he said nothing to witness about the title being in his wife, or in any other person; before witness filled up the blanks in the proposal, he fully explained to the plaintiff the principles upon which the company made insurances, and recognized him as the bona fide owner of the property. Before this witness was examined, the plaintiff proved by him, that he had a policy or insurance then subsisting in this company, and was a stockholder therein, and objected to his competency to testify for the defendant, but the court overruled the objection and permitted the witness to testify as above stated, to this ruling the plaintiff excepted.

4th Exception. Upon all the evidence in the cause the plaintiff offered prayers, in substance as [**9]  follows:

1st. If the jury find that the plaintiff purchased the land, mentioned in the policy, from Waters, under the California contract of 1850, and that such contract was executed by the parties, and the purchase money was fully paid and satisfied to Waters by or out of the moneys of the plaintiff, and that at the time the deed was executed to Mrs. Deale, the plaintiff was in California, and that this deed was so taken to Mrs. Deale and not to the plaintiff, by direction of the witness Jones, who was acting in this behalf as a friend of the plaintiff, it is competent for the plaintiff to show, in this action, that he purchased said land for his own use, and that he did not intend it should be conveyed to his wife as a provision for her; and if the jury find the above facts, and further, that Jones in directing the deed to be given to Mrs. Deale, believed he had a discretionary power to direct the manner in which the property should be conveyed, and gave such direction after advising with friends of the family, and chiefly, because of the distance from home of the plaintiff and of his precarious state of health, and after his return to this State the plaintiff expressed his [**10]  dissatisfaction that the deed had been taken in the name of his wife and not in his own name, and that afterwards he consulted with A. Randall, an attorney of this court, how to effect a transfer of the title to said land from his wife to himself, and after receiving advice from him, promised to collect and take to said Randall the papers which he required to enable him to prepare the requisite instruments to effect such transfer, then these facts, if found, will warrant the jury in finding that the plaintiff purchased said land for his own use, and did not intend it should be conveyed to his wife as a provision for her; and, in the event of such finding, the plaintiff at the time the policy was executed, and of making his proposal for insurance, if they find such proposal was made and policy executed, had an interest in the lands and buildings thereon, which was insurable within the charter, constitution and by-laws of the defendant, and sufficient to sustain said contract of insurance as an obligation of the defendant.

2nd. If the jury find that at the date of the deed to Mrs. Deale, she was the wife of the plaintiff and had children by him living at the date of the execution [**11]  of the policy, (if they find its execution,) then, that the plaintiff at that time and at the time of his proposal for insurance, (if they find such proposal was made,) had an interest in the premises so conveyed to his wife, insurable and sufficient to sustain the policy as an obligation of the defendant.

3rd. If the jury find the execution of the policy in the manner offered in evidence by the plaintiff, then the defendant is chargeable with notice of the state of the title to the premises insured as disclosed by the land records of Anne Arundel county, at the time of the application for the insurance, and the defendant cannot rely on any objection to the plaintiff's title which might have been ascertained by an inspection of such records, to defeat the plaintiff's recovery in this action, if his right to recover is, in all other respects, made out by the evidence to the satisfaction of the jury.

The defendant then offered prayers, in substance as follows:

1st. If the jury find the execution and issual of the policy on the day of its date, and that it was based on the application of the plaintiff offered in evidence, and that at the time of such application and issual [**12]  of the policy, the charter, constitution and by-laws of the defendant then in force, were such as have been offered in evidence, and shall further find the execution and recording of the deed of the 18th of July 1850, and that the plaintiff knew thereof at the time aforesaid, and shall not find that the same was known to the defendant or its board of directors, or to any of its directors, or to any officer or agent of the defendant; and that said deed was executed to Mrs. Deale by the direction and with the approbation of the witness Jones, and that before the same was executed, the plaintiff had authorised said Jones to direct the property to be conveyed either to the plaintiff or his wife, as he, the said Jones, at his option should decide, and that this authority so given by the plaintiff to said Jones, was not revoked or countermanded in any manner, and that the plaintiff had full knowledge of the fact that the property had been so conveyed to his wife before he made his said application, then the plaintiff is not entitled to recover.

2nd. If the jury find that the property was conveyed by the deed of 1850, to Mrs. Deale, by direction of the witness Jones, and that he had [**13]  been and was then fully authorised by the plaintiff to have the same conveyed to Mrs. Deale or the plaintiff, as in the exercise of his discretion he should deem best, and that in the exercise of his discretion, said Jones did decide and determine, and directed and caused the same to be conveyed by said deed to Mrs. Deale, and that she was then, and is now, the wife of the plaintiff, then the plaintiff cannot validly or lawfully claim that the property at the time the policy was executed and issued, was his property upon the theory of a resulting trust, even if they should find that the purchase money therefor was provided by him.

3rd. If the jury find the execution and issual of the policy on the day of its date, and that it was based on the application of the plaintiff offered in evidence, and at the time of such application and execution and issual of the policy, the charter, constitution and by-laws of the defendant were those offered in evidence, and that the deed of July 1850, was executed, delivered and recorded, as offered in evidence, and that the plaintiff knew at the time aforesaid, that said deed had been so executed, delivered and recorded, and shall not find that [**14]  the same was known to the defendant, or to its board of directors, or to any of its directors, or to any officer of the defendant, then the plaintiff is not entitled to recover.

4th. If the jury find the facts stated in the preceding prayer, and further, that said Mrs. Deale was, at the time when the policy was issued, the wife of the plaintiff, then the plaintiff is not entitled to recover.

5th. If the jury find the facts set forth in the third prayer, and that after the issual of the policy and before the fire, the dwelling house insured was occupied continuously for and as a school house with the knowledge and consent of the plaintiff, and without any notice to, and without the knowledge or consent of, the defendant or its secretary, or any of its directors, and shall further find that such use of the house as a school house was a change of occupation thereof, and that such change was a material increase of risk to the property, then the plaintiff is not entitled to recover.

6th. If the jury find the facts stated in the third prayer, and further, that the fact that the legal title to the property insured was not in the plaintiff, but in Mrs. Deale, was a material [**15]  fact in obtaining an underwriting of the policy to enable the defendant to decide whether it would underwrite the same, then the plaintiff is not entitled to recover.

7th. If the jury find the execution of the deed of 1850, and that the grantee therein, Mrs. Deale, was, at the time, the wife of the plaintiff, and that said deed was so executed and delivered by direction of Jones, under authority for that purpose conferred on him by the plaintiff, and that the consideration money therein mentioned, was paid and satisfied in the manner stated by said Jones, then said deed to Mrs. Deale is prima facie to be considered as a provision for her, and the burden of proof is on the plaintiff to show by other evidence that said deed is not to be so considered.

8th. If the jury find the facts set forth in the preceding prayer, and that said deed was executed and delivered by authority of the plaintiff, then, as against the plaintiff, said deed was valid and effectual to vest in Mrs. Deale the property therein mentioned, even if the jury shall find the plaintiff expressed regret that said deed had been made to his wife, and that he contemplated the execution of other conveyances so as [**16]  to vest the title to the said property in himself.

9th. If the jury shall find from the evidence that the plaintiff in obtaining this policy misrepresented to, or concealed from, the defendant or its agent, any fact in reference to his title to the property insured, and shall also find that the fact so misrepresented or concealed, was material to be known and considered by the defendant in deciding whether it would underwrite such policy, then the plaintiff is not entitled to recover.

10th. If the jury shall find from the evidence all the facts stated in the plaintiff's first prayer, the finding of said facts does not require them to find a verdict for the plaintiff.

11th. If the jury shall find from the evidence all the facts stated in the plaintiff's second prayer, the finding of such facts does not require them to find a verdict for the plaintiff.

The court granted the plaintiff's first and second, and rejected his third prayer, and also granted the defendant's fifth, seventh, eighth and ninth, but rejected its first, second, third, fourth and sixth prayers. The defendant's tenth and eleventh prayers were granted by consent of the plaintiff. Each party excepted [**17]  to the adverse rulings upon these prayers, and the verdict and judgment being in favor of the plaintiff, the defendant appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

If a father purchase property in the name of a son, or a husband in the name of his wife, it is, prima facie, an advancement or provision, and no presumption of a resulting trust arises from the fact of the payment of the purchase money.

But, in such cases, the prima facie presumption of an advancement or provision, may be rebutted, and a resulting trust established, by sufficient evidence manifesting a clear intention, that the grantee in the conveyance shall take as trustee.

Declarations of the husband, made more than two years after the conveyance to the wife, are not admissible for the purpose of affecting the legal title conveyed to the wife, and of establishing a resulting trust in the husband.

Any evidence to displace the title of the nominee, unless founded on his own admission or declaration of trust, must be contemporaneous with the purchase: subsequent acts or declarations of the purchaser, or any other matter arising ex post facto, though of the most unequivocal and conclusive description, are inadmissible for such purpose.

A deed of real estate, to a married woman, under the act of 1842, ch. 293, sec. 1, vests her with the legal estate in fee, but not to her sole and separate use: in such property the husband still retains his marital rights, and such interest of the husband is an insurable interest.

In an ordinary contract of insurance, the interest of a husband in property conveyed to his wife, would be covered by an insurance of the property as his, and his omission to state the nature and extent of his interest, where no inquiry is made on the subject, will not avoid the policy.

But in the case of a mutual insurance company, whose charter, to which the insured was bound by the contract of insurance, makes all premium notes liens on the real estate of the assured, to meet losses, the title of the assured is a most important consideration of the contract, and a material misrepresentation or concealment, in regard to it, will render the contract void.

A mutual insurance company, whose charter gave it "full power and authority to make insurance on any kind of property," may insure the interest which a husband has in property conveyed to his wife.

Where a party, in his application for insurance in a mutual insurance company, called the property "his property," and the policy refers to such application, this does not constitute a warranty on his part, that he held the fee-simple thereto, unincumbered, a breach of which, by the existence of the legal title in his wife, would render the policy void.

Whether a misrepresentation or concealment by the assured, in a mutual insurance policy, of the true nature and extent of his interest in the property insured, will avoid the policy, depends upon its materiality to the risk, and the question of materiality is a question of fact to be submitted to the jury,

In the case of a mutual insurance company, where there is a lien created on the property insured, a representation or concealment, as to title, may be material to the risk, which would not be so in an ordinary case, but its materiality is a question for the jury, and the court cannot assume it as a matter of law.

The defendant (the company) has a right to ask for a specific instruction, directing the attention of the jury to the particular fact in which the alleged misrepresentation, or concealment, existed.

An insurance company is not chargeable with notice at the time of insurance, if the state of the title to the premises insured, as disclosed by the land records, so as to prevent its relying, in order to defeat the action on the policy, on any objection to the title of the assured, which might have been ascertained by inspection of such records.

Where a stockholder and agent of an insurance company, filled up, at the request of the assured, an application for insurance, and presented it to the company, he is a competent witness for the company to testify as to such matters, for he was therein the agent of the assured.

Assumpsit is the proper remedy upon a contract, not under seal, for additional insurance, endorsed on a policy: there being nothing in the original covenant continuing it in force as a specialty, and binding the company, by subsequent endorsements of additional insurance.  

COUNSEL:
I. N. Steele and Wm. Schley, for the appellants.

1st. The deed to Mrs. Deale conveyed the legal title to her, and was directed to be so made by Jones, in pursuance of authority from her husband, the plaintiff, and if the jury so found, then the mere fact of the payment of the purchase money by the husband, did not in point of law create a resulting trust in his favor, but the deed is to be considered prima facie, as a provision for the wife;--such is the presumption of law upon the face of the transaction. Hill on Trustees, 96 to 98, 101 to 104. 2 Story's Eq., secs. 1202, 1203, 1204. 1 Spence's Eq., 452. It is true, this presumption may be rebutted and a resulting trust established by parol proof, but the evidence for this purpose must be competent and legal evidence in its character and quality, and be sufficient, when thus specially offered, to establish the trust. Declarations of the husband, not contemporaneous with the transaction, not forming part of the res gestae, but made years after the execution [**18]  and delivery of the deed, such as those testified to by Jones and Randall in this case, are totally inadmissible for that purpose. Hill on Trustees, 105. 18 Ohio, 424, Tremper vs. Barton. Nor are previous designs and contracts, not carried into execution, but expressly abandoned, sufficient for this purpose. The offer of the evidence on this point, on the part of the plaintiff, in the first exception, was of the whole blended facts unaccompanied by any offer to follow it up with other testimony; it was offered for the purpose of showing an insurable interest in the nature of a resulting trust; it was admitted for that purpose, and as sufficient for that purpose, for its admission under this offer decides its sufficiency for the purpose for which it was offered. If, therefore, it was inadmissible for that purpose, as we have show it to be, it should have been rejected. 7 Md. 582, Pegg vs. Warford. If these views are correct, it follows that the rulings of the court below, in the first and second exceptions, were erroneous. The granting of the plaintiff's first prayer was also erroneous, if for no other reason, because it relies upon this insufficient and inadmisible testimony. The [**19]  defendant's second prayer should, for the above reasons, have also been granted.

2nd. The appellant being a mutual insurance company, by whose charter (Act of 1849, ch. 213, sec. 4) the premium notes are liens on all real property for the insurance of which they are given, the title of the applicant for insurance is a material fact to enable the company to judge of the sufficiency of the security which it will have for the premium note if it should underwrite the risk proposed. In the case of an ordinary insurance it may be true, that, in the absence of inquiry, the failure to disclose the extent of his interest, where the assured has but a limited or partial interest, will not avoid the policy, (14 Md. 298, Franklin Fire Ins. Co., vs Coates and Glenn,) but a different rule prevails in the case of a mutual insurance company. In such case the insured, by the contract of insurance, becomes a member of the company, and the charter, constitution and by-laws of the company form a part of the contract between the assured, his fellow corporators and the company. In his application for insurance, the appellee offered the property for insurance as "his property," (thereby asserting [**20]  in himself a legal title in fee-simple unencumbered,) and assented to the charter, constitution and by-laws of the company, and this application was expressly referred to and adopted in the policy, which constituted a warranty that the property was his, and this warranty was broken by showing the existence of the legal title in his wife, even if he had an interest by way of a resulting trust, or as tenant by the curtesy, or if not, under the circumstances a warranty, was, at least, upon the hypothesis of fact as to title assured by the defendant's first, third and fourth prayers, a misrepresentation or concealment by means of partial disclosure, if material facts as to the title by which the policy was avoided. In support of these positions, see Angell on Ins., secs. 10, 67, 139 to 141, 182, 183, 188, et seq. 1 Philip on Ins., 346, 347, and cases there cited. 2 Duer on Ins., 580, 581, 687, 688. 8 How., 235, Clark, et al., vs. Manufacturers Ins. Co. 3 Hill, 501, Robert vs. Chenango Ins. Co. 5 Denio, 326, Egar vs. Mutual Ins. Co. 1 Pet., 189, McLanahan vs. The Universal Ins. Co. 1 Story's C. C. Rep., 57, Carpenter vs. American Ins. Co. 22 Pick., 203, Bryant vs. Ocean Ins. Co. 6 Cush.  [**21]  , 340, Davenport vs. Mutual Ins. Co. 6 Cush., 448, Smith vs. Mutual Ins. Co. 10 Cush., 587, Friesmuth vs. Mutual Ins. Co. 8 Metc., 114, Houghton vs. Ins. Co. 6 Gray, 221, Sawyer vs. Ins. Co. 7 Gray, 373, Jenkins vs. Mutual Ins. Co. 28 Maine, 252, Brown vs. Williams and Mutual Ins. Co. 40 Maine, 587, Pinkham vs. Morang. 4 Foster, 259, Leathers vs. Mutual Ins. Co. 7 Foster, 157, Marshall vs. Mutual Ins. Co. 1 Gilman, 236, Mutual Ins. Co., vs. Manf. Co. 7 B. Monroe, 470, Addison et al., vs. Ins. Co. 5 Call., 517, Mutual Ins. Co., vs. Mahon. 12 Md. 377, Augusta Ins. Co., vs. Abbott. In the case of Allen vs. Mutual Ins. Co., 2 Md. 111, the only question presented and decided was, as to the power of the company under its charter to insure the particular interest there offered for insurance, and no question was there raised, as to warranty, or misrepresentation or concealment of title, or the extent of interest held by the assured. Here the charter, con-constitution and by-laws, formed, as we have said, a part of the contract of insurance, and the charter makes it material that the interest which the assured held in the property should be disclosed, and whether he so disclosed or concealed [**22]  it upon the facts proved, is a question of law--a question of construction upon the charter and policy--to be decided by the court, and not to be left to the jury. We insist, therefore, there was error in the refusal of the defendant's first, third and fourth prayers.

3rd. The defendant's sixth prayer should have been granted, because even if the policy was not void upon the grounds stated above, still the plaintiff was not entitled to recover in this action upon the hypothesis of fact stated in this prayer, if the jury should find that the fact, that the legal title was not in him but was in his wife, was a material fact to enable the defendant to decide, whether it would or not assure the risk, upon the mere note of the plaintiff, and waive the lien. It is to be observed on this point, that the granting of the defendant's ninth prayer, which left the general question of misrepresentation and concealment, as to title, to the jury, was virtually nullified by the refusal of this sixth prayer, and by the granting of the plaintiff's first and second prayers. In this sixth prayer the question of materiality to the risk of the representation or concealment of title, is left to the [**23]  jury, and the prayer is unobjectionable in this respect. Angell on Ins., secs., 152, 175. 20 New Hamp., 551, Boardman vs. Mutual Ins. Co.

4th. The plaintiff's first prayer ought not to have been granted for other reasons. Firstly, it affirms, as law, that upon the enumerated facts, (being only a part of the evidence,) if found by the jury, the plaintiff is at liberty to show that he did not intend the land to be conveyed to his wife as a provision for her. Secondly, it affirms, as matter of law, that if the jury find such enumerated facts, and certain other specified facts, they were warranted in finding that the plaintiff purchased the land for his own use, and that he did not intend the same should be conveyed to his wife as a provision for her. And thirdly, that in case of such finding, then, as matter of law, the plaintiff had an insurable interest in the land and buildings thereon, within the provision of the charter, constitution and by-laws of the defendant; and sufficient to sustain the policy issued on the application of 1852, as an obligation of the defendant. If any proof, not embodied in this prayer, would establish a proposition inconsistent with the theory of this [**24]  prayer in any of its branches, it ought not to have been granted. It is, in fact, in the nature of a demurrer to all other evidence. 7 Md. 352, McTavish vs. Carroll. Now the jury might well find, upon the whole evidence, that the plaintiff intended the property to be conveyed to his wife, as a provision for her, if Jones in the exercise of his discretion thought it expedient, and that Jones in fact so determined. The prayer, in effect, told the jury, that they were warranted in finding contrary to their belief, that the plaintiff did not intend the property to be conveyed to his wife as a provision for her. But the prayer is involved, and calculated to mislead the jury. The issues joined related not to any question merely of insurable interest, but to the ownership of the property. The evidence of Jones was offered expressly to establish a resulting trust, whilst the prayer makes it the basis on which to found a claim of insurable interest. The offer and use of the evidence are not ad idem.

4th. The plaintiff's second prayer ought not to have been granted. It is based on the theory of ownership in the wife, and affirms that the husband of a woman (there being living children [**25]  of the marriage) has a right to insure property as his own, in this company, without her concurrence or consent, and without notice to the company that he is not the owner in fee. This is contrary to the charter, constitution and by-laws of the company. The 14th section of the charter expressly provides for the insurance of the property of a married woman in the mode there directed, and in no other way can such property be insured under the charter of the company.

F. H. Stockett and Thos. S. Alexander, for the appellee.

The questions to be decided in this case arise solely upon the rulings of the court below in the admission of evidence, and upon the prayers. No question arises upon the pleadings, no such point having been raised in the court below, the prayers not making any reference whatever to the pleadings. 1 Gill 227, Leopard vs. Canal Co. 11 Md. 347, Richardson vs. Milburn.

If the plaintiff had an interest in this property, either by way of a resulting trust, or as tenant by the curtesy, it was an insurable interest which this company had power under its charter to insure. The case of Allen vs. The Mutual Ins. Co., 2 Md. 111, is conclusive upon this [**26]  point, the provisions of the two charters being in this respect identical. See also 10 Cush., 37, Converse vs. Mutual Ins. Co. Now we say, that Deale had an interest in this property, first, by way of a resulting trust. The agreement of January 1850, shows that he purchased the land and then paid $ 6000 of the purchase money, and the other proof shows that the whole purchase money was provided and paid by him. The deed was made to the wife, and the presumption from this fact is, that it was a settlement on the wife, but this presumption is liable to be rebutted, and this has been fully done by the testimony in the case. Hill on Trustees, 103. 1 Younge & Coll., 65, Scawin vs. Scawin. 14 Ala., 796, Butler vs. Ins. Co. It is to be observed here, as to the rulings upon the admission of the evidence, that where an offer is made generally, of a mass of evidence complex in its character, and the whole of it is objected to, if any part be admissible there is no error in overruling such general objection, and such is the nature of the offer and objection in the first and second exceptions in this case. 11 Md. 537, Carroll vs. Granite Manf. Co. 13 Md. 408, Berry vs. Matthews, et al.  [**27]  But secondly, the plaintiff had, at all events, an interest as tenant by the curtesy. Schindel's cases in 12 Md. 108 and 294, show that the recent Acts of Assembly, though allowing a married woman to receive property by deed, do not interfere with the marital rights of the husband. Such an interest in the husband was an insurable interest, and indeed it was admitted, that Deale's interest in this property was an insurable interest under the terms of the charter, constitution and by-laws of the defendant.

The question then is, did Deale properly state his interest in the property? The finding of the jury negatives all fraud, misrepresentation or concealment of any material fact, as to title, for the ninth prayer of the defendant involving these points was granted by the court below. Did then the representation of the property in the application, as "his property," avoid the policy? Nothing was said about the title at the time of the application--nothing was said about the wife--and the inference is that no inquiry was made on that point by the defendant's agent, for if there had, can it be supposed that Deale would not have said, "the title is in my wife's name, and I will [**28]  take the insurance in her name under the 14th clause of your charter?" Carman was the agent of the defendant and not of the insured, and in making out and receiving the application for the insurance, he was the agent of the defendant, soliciting insurances; he had with him the printed forms of applications in blank, and filled one of them up for this plaintiff, and a plainer case of purposed fraud derived from this printed form of application and policy, in connection with the defences set up in this case, can scarcely be imagined. It deserves the severe rebuke, administered by this court to insurance companies in Crane's case, in 16 Md. 295, 296. There is nothing in this charter showing the application shall be considered the representation of the assured; nor is there any thing in the conditions of the policy, or in the constitution and by-laws of the company, requiring the assured to show his title, or requiring any thing to be said of title at the time of application for insurance, and avoiding the policy if such disclosures are not made, or are not correctly stated; and in such a case an unintentional misstatement of the true legal title, the party having an insurable interest [**29]  in the property, will not avoid the policy. 7 Foster, 166, 167, Marshall's case. 14 Penn. State Rep., 395, 396, Satterthwaite's case. Representation is not warranty, the rule of law is directly the reverse of what it is stated to be by the other side. 14 Barb., 383, Wall's case. 1 Sandf., 551, Niblos's case. 12 Md. 348, Abbott's case. 20 New Hamp., 551, Boardman's case. 1 Smith's Lead. cases, 638. Now what is the character of the representation made by Deale, as to the title? The application only individuates the property from that of his neighbors. It is not an affirmation of seizen in fee of the land:--"his property"--"my property" --mean in common parlance not a fee-simple, in the sense that it is false if the party holds under a lease instead of having the fee. The law gives no such interpretation to such a description. The cases referred to in support of such a position are special cases upon special charters. In Leathers' case, 4 Foster, 259, the charter provided, if the assured had a less estate than a fee-simple the policy should be void, unless the true title of the assured was expressed therein. On the other hand, in Clapp's case, 7 Foster, 143, where the rules of the [**30]  company required the applicant to make a true statement of his title and interest in the property, a creditor to whom real estate had been set off on execution, and the time for the debtor to redeem had not expired, represented the property as his, and it was held that this was no such misrepresentation or concealment as would avoid the policy. To the same effect is Buffum's case, in 10 Cush., 540, and Allen's case, in 5 Gray, 384. The only objection that can be made in this case is, that Deale omitted to state the true condition of his title. But that the omission to state every fact in relation to the title, does not avoid the policy, even in a mutual insurance company, is not only abundantly shown by the cases already cited, but is also sustained by Coates & Glenn's case, in 14 Md. 298; by Phillips' case, 10 Cush., 350; by Loehner's case in 17 Missouri, 247; by Morrison's case in 18 Missouri, 262; by Schell's case in 29 Penn. State Rep., 31.

If these views are correct, it is submitted that the judgment in this case must be sustained.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*44]  BARTOL, J., delivered the opinion [**31]  of this court:
The defence to this action, relied upon by the appellant, rests upon the alleged misrepresentation or concealment by the appellee, when the contract of insurance was made, of the true nature and character of his title, or interest, in the property insured.

 [*45]  In the application for insurance the appellee described the property as "HIS property," whereas, the evidence discloses that the whole fee-simple title was vested in his wife, Janeatta S. Deale, by a deed of conveyance dated the eighteenth day of July 1850, and that it so remained at the time the insurance was effected. For the purpose of establishing that the beneficial title was in the appellee, in the nature of a resulting trust, the evidence of George W. Jones and of Alexander Randall, was offered, and permitted to go the jury, this evidence is contained in the appellant's first and second bills of exceptions, which, as they present the same questions, may be considered together.
Implied or resulting trusts arise where a purchase is made by one person in the name of another. In Hill on Trustees, 91, the doctrine is thus succinctly stated, "Where, upon a purchase of property, the conveyance [**32]  of the legal estate, taken in the name of one person, while the consideration is given or paid by another, the parties being strangers (in blood) to each other, a resulting or presumptive trust immediately arises by virtue of the transaction; and the person named in the conveyance will be a trustee for the party from whom the consideration proceeds." Such trusts arise by operation of law, are not within the statute of frauds, and may be proved by parol. Hill on Trustees, 96. "If the person in whose name the conveyance of property is taken, be one for whom the party paying the purchase money is under a natural or moral obligation to provide, no equitable presumption of trust arises from fact of the payment of the money, but, on the contrary, the transaction will be regarded, prima facie, as an advancement for the benefit of the nominee. In that case, therefore, it will be for the party who seeks to establish a trust on behalf of the payer of the purchase money, to displace, by sufficient evidence, the presumption that exist in favor of the legal title," (Ibid., 97.) In Story's Eq., Vol. 2, sec. 1202, it is said, "If a parent should purchase in the name of a son,  [**33]  the purchase would be deemed, prima facie, as intended as an advancement, 

 [*46]  so as to rebut the presumption of a resulting trust for the parent. But this presumption, that it is an advancement, may be rebutted by evidence manifesting a clear intention, that the son shall take as trustee." In section 1203, the same author says, "This presumption in favor of the child, being thus founded in natural affection and moral obligation, ought not to be frittered away by nice refinements. It is, perhaps, rather to be lamented, that it has been suffered to be broken in upon by any sort of evidence of a merely circumstantial nature." And in section 1204, "The like presumption exists in the case of a purchase of a husband in the name of his wife. Indeed, the presumption is stronger in the case of a wife than of a child; for she cannot at law be the trustee of her husband." See Hill on Trustees, 98, 101, 103, and authorities there cited.
Having thus stated the principles upon which the doctrine of a resulting trust depends, we proceed to consider the evidence offered in this case for the purpose of rebutting the presumption of law in favor of Mrs. Deale's title, and of establishing [**34]  a resulting trust in favor of the appellee. In considering this evidence, we must throw out of view the testimony of Mr. Randall of the declarations made to him by Mr. Deale in 1854, four years after the deed; and also the conversation between Jones, the witness, and Mr. Deale, in 1852, which was two years after the deed was made to Mrs. Deale. These declarations were clearly inadmissible, for the purpose of affecting the title conveyed to Mrs. Deale by the deed of June 1850. In Hill on Trustees, 105, it is said, "Any evidence, however, which is used for the purpose of displacing the title of the nominee, unless it is founded on his own admission or declaration of trust, must be contemporaneous with the purchase." "Subsequent acts or declarations of the purchaser, or any other matter arising ex post facto, cannot be admitted for the purpose; although they be of the most unequivocal and conclusive description." Discarding the subsequent declarations of Mr. Deale, made to Jones and Randall, 

 [*47]  then nothing remains except the contract of the 28th day of January 1850, made in California between Waters and Deale, and the fact that the purchase money was paid by Deale.  [**35]  This contract was abandoned, and a new contract afterwards made with Waters by Jones, for the purchase of the land at a different price; and, in fulfillment of this last contract, the deed of conveyance was made to Mrs. Deale by the direction of Jones, who, as he testifies, had the authority of Mr. Deale for so doing. The simple fact that the appellee paid the purchase money, as we have already seen under the authorities cited, could not in this case raise any presumption of a resulting trust in the appellee. In the opinion of this court, the evidence we have been considering, offered for that purpose, was insufficient in law, and ought not to have been allowed to go to the jury. It follows from what we have said, that the Circuit court erred in its ruling upon the appellant's first and second exceptions; and, for the same reasons, the first prayer of the appellee was erroneously granted.
Having disposed of the appellee's claim, so far as it rested upon a supposed resulting trust, the case stands simply upon the title under the deed of the 18th of July 1850. By the Act of 1842, chapter 293, section 1, any married woman was enabled to become "seized of land by direct gift or purchase [**36]  in her own name and as of her own property." Under the deed, therefore, to Mrs. Deale, she was vested with the estate in fee: not, however, to her sole and separate use. In construing the Act of 1842, this court has said that, in such property, the husband retained his marital rights.  12 Md. 108, 121, 294, 312. In this case, the appellee's rights were to a life estate, in right of his wife, with a right to the pernancy of the product and profits of the land during the coverture--and a contingent curtesy right in the event of his surviving his wife. See 2 Md. 453, 454. The question, then, presented for our decision is, whether such an interest in the property is sufficient to entitle the appellee to recover, upon the contract of insurance sued on in this case? Beyond all question the 

 [*48]  appellee had an insurable interest. 14 Md. 297. Angell on Fire and Life Ins., sec. 64. 2 B. Munroe 50. The defence here is, that the appellee did not truly represent his title to the company. If this were an ordinary contract of insurance, made by a company insuring at its own risk, such an interest as the appellee's would be covered [**37]  by an insurance of the property as his; and his omission to state the nature and extent of his interest, where no inquiry has been made on the subject, would not avoid the policy. See 14 Md. 298. Angell on Fire & Life Ins., ch. 8, secs. 182, 183, 184, 185, 186, and note 9. 1 Smith's Lead. Cases, 633, 638, and cases there cited. But this contract was made with a mutual insurance company, and is obviously governed by very different principles and rules of construction. The contract of insurance constituted the appellee a member of the association, and bound him by its charter, constitution and by-laws; his assent to them was expressed in his application; they were incorporated in the policy, and became a material part of the contract.
By the fourth section of the charter, (Act of 1849, ch. 213, sec. 4,) all premium notes are declared to be liens on the real estate insured, which is held liable for the payment of the same, to meet losses that may be incurred by the company. In such case the title of the insured becomes a most important consideration of the contract, and a material misrepresentation or concealment in regard to it, will [**38]  render the contract void. We do not entertain the opinion that this company might not, under its charter, insure such an interest as the appellee held in the property of his wife. On this question we think the case of Allen vs. Mutual Fire Ins. Co., 2 Md. 111, is strictly applicable. In this respect the two charters are identical. This company has "full power and authority to make insurance on any kind of property;" Act of 1849, ch. 213, sec. 1. "This language" the court said, in 2 Md. 118, "is abundantly comprehensive, to include both real and personal estate, and all such interests in either, as the well settled principles of law recognise to be insurable interests;" and again, on page 123, "this company have the authority to insure whatever interest 

 [*49]  are insurable, in ordinary fire insurance companies." To that extent the decision in Allen's case governs this, and, adhering to what was there decided, we are of opinion that the appellee had an insurable interest, which this company had the power to insure under its charter. We come now to consider the terms and conditions of the particular contract sued on, and also the effect of [**39]  the representation by the appellee as to title. These questions did not arise in Allen's case; there was nothing in it to show any representation whatever as to title; or that the company was not fully informed of the nature and extent of the interest of the assured, (see 2 Md. 124.) Here, however, we have before us the written application for insurance, in which the appellee calls the property "his property." This application is referred to in the policy, and upon it the company acted in making the contract, without any notice of the title of Mrs. Deale or of the limited nature of the appellee's interest.
We do not adopt the view contended for by the appellant, that the application for insurance, and the reference thereto in the policy, constituted a warranty, on the part of Deale, that he held the fee-simple title to the property unincumbered, the breach of which, by the existence of the legal title in Mrs. Deale, would render the contract void. Nor is there any express provision in the charter, constitution or by-laws, that in terms declares a policy to be void, where the title of the assured is not truly stated, or is of a limited nature, less than the fee,  [**40]  or incumbered. In this last respect this case differs from those in 7 B. Monroe 470; 4 Foster 259; 7 Foster 157; and other cases of the same class, many of which have been cited in argument.
In our opinion, the representation made by the appellee as to title, was not, as we have before stated, a part of the contract, in the nature of a warranty, that he held the whole fee-simple title unincumbered, the breach of which would render the policy void. The whole defence therefore rests upon the alleged misrepresentation or concealment of the true nature and 

 [*50]  extent of his interest, and of the title of Mrs. Deale. Whether such alleged misrepresentation or concealment will avoid the policy depends upon its materiality to the risk undertaken, and, in our opinion, the question of materiality is a question of fact to be submitted to the jury. 2 Duer on Ins., 689, sec. 31.  14 Md. 299. There is some conflict of authority on this question, but the ordinary rule is as we have stated; and we cannot, in this respect, distinguish this case from those in which that rule has been established and recognised. Having said that the appellee had [**41]  an insurable interest, which this company had power to insure under its charter, the policy would attach unless the company had been induced to make it by reason of some misrepresentation or concealment of material facts with regard to the title, which, if they had been truly known by the company, would probably have influenced it in making the contract or estimating the risk. In the case of a mutual insurance company, where a lien is created on the property insured, a representation or concealment, as to title, may be material to the risk, which would not be so in an ordinary case. But its materiality is a question for the jury, and the court cannot assume it as matter of law.
Having thus stated the opinion of this court upon the several questions involved in this case, we proceed to pass upon the several prayers presented in the last bill of exceptions.
The first prayer of the plaintiff, as has been already said, was erroneously granted, it is based upon a supposed title in the appellee in the nature of a resulting trust, of which there was no evidence sufficient, in law, to go to the jury.
The plaintiff's second prayer was properly granted; it asserts, simply, that the title [**42]  of Deale to the property in right of his wife was an insurable interest, sufficient to sustain the contract or policy, and taken in connection with the defendant's eleventh prayer, which was granted by consent, is free from objection.
The third prayer of the plaintiff was properly rejected; the company was not chargeable with notice of the state of the title disclosed by the land records.
For the reasons already stated in this opinion, we affirm the 

 [*51]  ruling of the Circuit court upon the defendant's first, second, third and fourth prayers. We also affirm its action in granting the defendant's fifth, seventh, eighth and ninth prayers.
We think the defendant was entitled to the instruction asked for in the sixth prayer. We should not, however, reverse the judgment on account of its refusal, as the defendant had the benefit of the same instruction, in effect, by the granting of the ninth prayer. Still, as the case must be sent back, we deem it proper to say, that the defendant was entitled to ask for a specific instruction, directing the attention of the jury to the particular fact in which the alleged misrepresentation or concealment consisted.
The only remaining question [**43]  presented by the exceptions, involves the competency of the witness Carman:--on this question we affirm the decision below. In the matter of filling up the application, and presenting it to the company, the witness was the agent of the appellee, and as such a competent witness.
Judgment reversed and procedendo ordered.
In the two other cases between the same parties, argued at the same time by the same counsel and before the same judges, actions of assumpsit were brought upon the contracts for additional insurance endorsed upon the policy, and non-assumpsit was pleaded in each case. These endorsements were not under seal, but simply signed by the secretary of the company, and state that the applications for additional insurance had been granted, subject to the terms and conditions set forth in the within policy. The same evidence was given, and the same exceptions, modified so as to apply to these cases, taken, as in the preceding case, with the additional exception, that in each of these cases the defendant objected to the plaintiff's right of recovery in the present form of action, but these objections the court overruled, and the defendant excepted, and the verdicts [**44]  and judgments being against it, appealed.
On the part of the appellant it was argued, that these actions should have been in covenant instead of assumpsit, upon 

 [*52]  the authority of McGowan's case, 16 Md. 47; and 33 Pa. 221, Franklin Fire Ins. Co., vs. Massey. It was also argued, that as the appellee in the applications for these additional insurances, represented himself as holding "the legal title" to the property, all question as to a resulting trust is thrown out of view; that the appellee could not stand upon his interest as tenant by curtesy, because these insurances were effected after the Act of 1853, ch. 245, which protects the property of the wife from the debts of the husband, (12 Md. 121, 312, Schindel's cases,) and the premium notes would not bind her interest in it; and again, that by these insurances personal as well as real estate was insured, and but one premium note given, which is in conflict with the fourth clause of the charter of the appellant.
On the part of the appellee it was insisted, that these cases differ from McGowan's case, inasmuch as there is no provision in [**45]  this policy continuing it in force as a sealed obligation, as to and upon endorsements of additional insurances; that as to the other questions, these cases are the same as, and must abide the result of, the preceding case.
BARTOL, J., delivered the opinion of this court:
These appeals present the same questions as have been decided in the preceding case, between the same parties, and for the reasons assigned in the opinion filed in that, the judgments in these will be reversed and procedendos ordered. Upon the question growing out of the form of action, which did not arise in the preceding case, we are of opinion that the action of assumpsit, and not covenant, is the proper remedy on the contracts endorsed on the policy. These cases differ from McGowan's case, in 16 Md. 47.
Here there is nothing in the original covenant, which continues it in force, as a specialty, binding the company by subsequent endorsements of additional insurance. They are new distinct contracts by parol. See 2 Wharton 167.
Judgments reversed and procedendos awarded. 

51 of 196 DOCUMENTS 

MARY KENT & Others, vs. ANN JANETTA WATERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 53; 1861 Md. LEXIS 64 

November 4, 1861, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Equity side of the Circuit Court for Anne Arundel County.

The widow and adult heirs of James Kent, who died intestate, filed their bill in February 1853, against the administrator and infant heirs, for a sale of his real estate to pay debts, in order to save the personalty. After answers, and other proceedings, which need not be stated, the court, on the 4th of April 1853, passed a decree for the sale of said real estate, and requiring the trustees to give notice to creditors "to file their claims with the vouchers thereof," with the clerk, "within three months from the day of sale." Sales were made and ratified, and a large number of claims being filed under the notice, the auditor, on the 15th of June 1854, made his report, with a statement of claims so filed, and stated several accounts distributing a portion of the proceeds. Some of the claims being objected to, the claimants filed petitions to take proof to sustain them, and on the 24th of July 1854, an order passed, authorising "the petitioners and other creditors and the parties," to take depositions before a justice of the peace, on giving the usual notice, and directing the testimony to be filed in court [**2]  before the 1st of October ensuing. Under this order proof was taken, and it being necessary to show the condition of the estate of J. J. Speed, deceased, for whom Kent had become endorser or surety on some of the claims, it was proved, on the part of these claimants, that his estate was insolvent and would not pay more than thirty cents in the dollar. On the 7th of December 1854, the auditor filed another report and account, which were ratified on the same day, but in this report stated that he would thereafter report what claims are now proved after a further examination thereof.

Other creditors continued to file their claims, and on the 28th of March 1856, the appellee, Mrs. Waters, filed her petition, setting forth her claim, founded upon a bond executed by Kent as surety for Speed, dated the 13th of April 1849, in the penalty of $ 20,000, conditioned for the faithful performance by Speed, of his duties as trustee under a deed of trust to him from John W. Waters, dated the 13th of February 1849, and compliance by him with the provisions of the Act of 1845, ch. 166. By this deed, duly recorded in Anne Arundel county, where the property was situated, the grantor, John W. Waters,  [**3]  conveyed to Speed certain real and personal estate in trust, "that as soon as may be, or as soon as in his judgment it may be expedient, the trustee shall dispose of and sell the said land and farm and personal property at public or private sale, as he may see proper, and after such advertisement, and upon such terms of sale of cash or credit, and in such modes as he may see proper and deem best for my interest; and that he shall apply the proceeds of said sales, first, to pay and meet the expenses of the trust with a commission of six per cent. to the said Speed, as trustee, on the whole amount of said property, exclusive of his outlays, which are to be reimbursed; then, in trust to pay the said Speed the sum of $ 500 which he has advanced me with interest, and any other advances or payments he may make for me; then in trust to pay out of the proceeds of sale all my just debts that I now owe, as, and when, he may be in funds to do so; then in trust to invest the balance of said proceeds of sale in mortgages or other securities as he may see proper, in the city of Baltimore or elsewhere, in his name, to my use, and to re-invest the same at his discretion; then out of the net income [**4]  of said investment or balance of funds in his hands, in trust to pay to my mother, Ann Janetta Waters, the sum of $ 350 a year during her lifetime, if it shall yield so much, and if not, then all it does yield net, and if it yields more, the net balance of income over $ 350 a year to be held in trust for me, and after the death of my mother the whole property and its increase to be held in trust for me." By a deed, also duly recorded, dated the 18th of July 1850, the said Speed and Waters sold and conveyed the land mentioned in the preceding deed to Mrs. Janetta S. Deale, "in consideration of the sum of $ 8000 to the said Speed and Waters, in hand paid, at and before the sealing and delivery of these presents." This latter deed also recites, that "for the conveyance and perfect assurance" of the said land to the purchaser, the said Speed and Waters, "have both agreed to unite in the execution of this indenture," and both of them unite in signing the receipt for the purchase money, appended to the deed.

Duly certified copies of these deeds, and of the bond, which was also recorded, were filed as exhibits with the petition of the appellee. This petition states, that the petitioner [**5]  advanced to her son, John W. Waters, a considerable amount of money and property, which she specifies, in consideration that he would secure to her yearly the sum of $ 350, which he agreed to do, and that in consideration thereof and of natural love and affection, and in compliance with said agreement, her said son made the provision for her benefit contained in the deed of trust to Speed. It charges that Speed sold the personal estate of the value of about $ 4000, and the real estate for $ 8000, as appears by the deed therefor to Mrs. Deale; that the proceeds of the personal property was more than sufficient to pay all costs, commissions and expenses of the trust, all debts due by said Waters at its date, and all advances by Speed, thereby secured, so that, at least, the whole proceeds of the real estate was the net amount of the trust property upon which her annuity was chargeable. It also charges failure on the part of Speed to pay her annuity, and other mismanagement of the trust, and failure to report his proceedings in relation to the same, to the court, as required by the Act of 1845, ch. 166; his death and the utter insolvency of his estate, and that she had but recently discovered [**6]  the provision in said deed in her favor. She then, by reason of the said bond, claims payment out of the estate of Kent, of the annuity already due with interest, and that she may be secured thereout, payment of the same hereafter during her life; and prays the court to pass an order to that effect, and for subpoena to the administrator, widow and heirs at law, and for service of a copy of the petition and exhibits on then, to answer the premises and show cause why the order should not be passed as prayed.

On the 21st of May 1856, in notes then filed by the solicitor, representing this with other claims, the attention of the court was called to the claim of the appellee, as not having yet been stated by the auditor, nor answered, nor excepted to by the administrator and heirs at law. On the 19th of July 1856, the circuit judge declining to sit in the case in consequence of sickness, Thomas Donaldson, Esq., was, by agreement, appointed special judge, and qualified as such, and the case then being before him, was, by agreement, referred to a special auditor, who, on the 16th of January 1857, stated an account of the claims not excepted to, which was ratified, and on the 29th of [**7]  January 1857, the special judge filed an opinion upon the various disputed claims then ready for adjudication, in which he laid down the principles of law which were to govern the determination of the merits of all the claims then filed. In this opinion he notices the claim of the appellee twice, first, by classifying it with other claims as being against Kent as surety, and secondly, thus: "In regard to the claim of Ann Janetta Waters, it is impossible in its present condition to pronounce any decision; the estate against which all these claims are presented seems to be solvent, and the time has not come for directing the auditor to state a final account, but considering all the circumstances there is nothing to warrant a suspension of other claims which are perfectly established, on account of this and others which have not yet been established."

On the 25th of February 1857, an order was passed by the special judge directing the petition of the appellee to be set down for hearing on the 1st of April then ensuing, provided a copy of said petition and order be served on the administrator, widow and heirs, or their solicitors or guardians, on or before a day limited. A copy was [**8]  duly served, and the circuit judge having certified his ability to transact any business connected with the case, an order was passed by him on the 29th of May 1857, in which, after stating that no answer had been filed to the petition of the appellee, he referred the same to the auditor to state the claim of the appellee as prayed in her petition, said statement to be "subject to the further order of this court, it not being the intention of the court to decide any rights of the petitioner by this order." On the 28th of October 1857, the administrator, widow and heirs at law, asked leave to file their answers to the petition, stating that they had, since the filing of said petition, been engaged in an effort to trace the transaction on which the claim is based, and the court, by order of the 21st of December 1857, granted the leave to file the answers, "to avail as if filed anterior to the order" of the 29th of May 1857, "subject to all just exceptions." The answers were then filed on the 12th of January 1858, not admitting the allegations of the petition, and putting the petitioners to full proof thereof, and of her claim, and alleging that by the terms of said deed of trust the [**9]  grantor is authorised to receive, and did receive, the whole amount of the trust fund from Speed in his life time, and the whole trust was settled by payments for or advances made by Speed according to the requirements of the trust deed; and also denying the total insolvency of Speed's estate, and insisting that if the petitioner has any claim against the fund in court in this case, she must first exhaust her remedy against Speed's estate.

The auditor then, on the 22nd of January 1858, filed another statement of claims against the estate, in which, among others, he stated the claim of the appellee as directed by the order of the 29th of May 1857, and the court, on the 31st of May 1858, passed an order ratifying this statement and account, as to some of the claims, but passed no order as to others, including that of the appellee, stating as to these latter, that the papers had been so long in the hands of the special judge that there had not been sufficient opportunity for exceptions. On the 11th of June 1858, the appellee filed her further petition, in which, after stating the previous proceedings in reference to her claim, she excepts to the answers thereto, which had been filed,  [**10]  and prays that they may not be considered and allowed, among other reasons, because the failure, neglect and omission of the parties to file them as required by the order of the 25th of February 1857, concludes them as to the facts stated in her first petition, and prevents them from denying the same, or calling on her for proof of the same, even if, under other circumstances, it would be necessary for her, in order to sustain her claim, to offer other proof than the deed of trust, the execution of the bond, and the sale of the property by Speed. She further insists that the question as to the insolvency of Speed's estate is no longer open in this case, so far as her claim is concerned, because there is ample proof in the case, to which her claim is entitled to the benefit, of the insolvency, or inability of Speed's estate to pay his debts, which proof has been decided sufficient by the special judge, and is conclusive as against the said administrator and heirs at law, and she therefore insists she is entitled at once to demand of this estate the whole of her said debt and claim. By an order passed on the 7th of August 1858, this petition was set down for hearing on the third Tuesday [**11]  of September following, and it was further stated in this order, that all other claims will then be finally acted on. At the hearing, so ordered, the heirs at law filed exceptions to all these claims, which, so far as applicable to the present, are: 1st. Because it was decided on adversely by the special judge, as appears by his opinion. 2nd. Because they require full proof thereof, and the same has not been fully proved. 3rd. Because the trust estate was not sold, nor the money received by Speed; because Speed in his life time fully settled with John W. Waters, his grantor; and because the claimant has not exhausted her remedy against the estate of Speed. These exceptions, and all matters relating to all these claims, having been argued, the court, (BREWER, J.,) on the 6th of October 1858, delivered an opinion thereon, which, so far as it relates to this claim, is as follows:

"The special judge did not act on the claim of Mrs. Ann Jannetta Waters, and it is now, for the first time, heard on its merits.

"The petition states, that she advanced to her son, John W. Waters, a considerable amount of money and property therein specified, in consideration of his undertaking to secure [**12]  to her annually, during her life, the sum of $ 350, and that, in compliance with that undertaking, he executed to J. J. Speed, on the the 13th of February 1849, a deed, a copy of which is filed with the petition. There is no parol or written proof of this contract, or its consideration. A preliminary question was argued as to whether the case is rectus in curia, and also whether the proceedings in the case could be a taking of the petition pro confesso. The proceeding is in the usual and proper mode. In all cases of this kind an order is passed, appointing a day for hearing, provided a copy of the petition and order is served by a limited time, on the parties interested. When the appointed day arrives, and proof of service is filed, if no objection be made, the claim is referred to the auditor. If the parties interested are disposed to make objections, they are usually made in the form of an answer, and the case is taken up and decided to any extent that the judge deems expedient, which appears from the terms of his order. If testimony is required, an order is passed for taking it, and another day for hearing appointed. The mere circumstance of the passage of the order for reference,  [**13]  is never considered as taking the petition pro confesso. Indeed, the account is most always directed to be stated subject to exceptions, which is, in substance, the amount of the order in this case. In this case, also, after the statement of the account, the parties interested applied by petition, and were permitted to answer after the account was stated. The case, therefore, is fully before the court on its merits, and the first question raised is, as to the validity of the deed.

"It is a deed from John W. Waters to Jos. J. Speed, for the usual valuable consideration of $ 5, transferring the whole legal title to the grantee. Mrs. Waters is no party to it, nor is there any consideration stated in the deed as passing from her. She is stated in the deed, however, to be the mother of the grantor, but as she is not seeking the enforcement of an agreement, it matters not what was the consideration passing from her to her son, or whether there was any consideration. The deed to Speed passes the legal title to him, and Mrs. Waters claims under the trusts declared by that deed, which she certainly can do without any consideration passing from her; see 19 Eng. Law & Eq. Rep., 277, if any [**14]  authority can be necessary for this point.

"It is said by the defendants that, as no valuable consideration appears to have passed from the cestui que trust to the grantor, the trust may be revoked at his pleasure. Cases may be found in Hill on Trustees, 110, on the subject of resulting trusts, in favor of this power of revocation, where the deeds have been kept in the possession of the grantor, and other cases contra, but these are cases where no trust has been declared, and another principle seems to pervade these cases, to wit: that the parties complainants were volunteers, in whose favor a court of equity would not execute a power, the act of the donor being incomplete. But all the authorities which are to be found on page 82, et seq., of the same book, establish the principle, that where there is a conveyance of the legal interest, and a clear declaration of the trust, it is immaterial that the transaction is a purely voluntary one, and the trust will prevail against the person creating the trust, and all subsequent volunteers claiming under him. Whether this principle, however, is correct or not, seems to be immaterial. No attempt has been made to revoke this deed. No trust [**15]  of the land was declared, but only of the proceeds of sale, which Speed was clearly entitled to make without the interposition or cooperation of any one. The grantor joined in the deed to the purchaser, and in the formal receipt for the purchase money ex abundanti cautela on the part of the purchaser to assure the title, as appears from the recitals in the deed to Mrs. Deale. Which of them actually received the purchase money, or in what proportion, is not shown, but the trustee must be presumed to have done so, as it was his business to see to its proper appropriation. The trusts in the deed, I therefore think, must be enforced by the court.

"The question then is, what are the declared trusts of the deed? The first is to sell the land, which has been done. The proceeds are appropriated, first, to the expenses of the trust and commissions to the trustee, then to pay to Speed $ 500, which he had advanced to the grantor with interest. As to these two items, there is no dispute, but the declaration proceeds thus: "and any other advances or payments he may make for me." This provision, it is contended, authorised the grantor to receive or appropriate, any part of the proceeds of sale [**16]  at his pleasure, without limit as to the point of time. Is this its true construction? A provision immediately following this, is in these words: "then in trust to pay out of the proceeds of sale all my just debts that I now owe, as, and when, he may be in funds to do so." This last clause is in favor of creditors, and therefore, for a valuable consideration. Could the grantor revoke this provision by receiving or appropriating the whole proceeds of sale? I think not. Was it the intention of the grantor to reserve this right? I think not. The debts were to be paid, but when? "as, and when, he may be in funds so to do;" that is, as and when he received the purchase money, and after he had repaid his other advances to, and payments for the grantor. A period must elapse between the execution of the deed and the sale. During that time some advances and payments might be made by the trustee, and the duty of the trustee commenced to appropriate the proceeds in the order of the rights of the cestui que trust, paying his commissions and expenses and antecedent advances then made, and then to pay the grantor's debts, as, and when, he should be in funds; evidently contemplating a credit for [**17]  a part of the land; and not to embarrass the trustee, payment of the creditors was to be made as he received the purchase money. After that was done, the trustee was to invest the balance in his name, for the use of the grantor, but "out of the income from said investment and interest, to pay to my mother, Ann Janetta Waters, the sum of $ 350 per annum, during her life;" if it yielded so much, if not then all it does yield, and if it yielded more, "the net balance to be held in trust for me." The grantor certainly intended that all the certain provisions of this deed should be carried into effect. He intended that his debts should be paid, that his mother should receive her annuity, and after that, a residue of interest and the principal after her death, to be paid to him. He could not have intended to authorise the trustee to make payments and advances to him to the total exclusion of his debts and his mother's annuity:--he contemplated a considerable revenue. I think the trustee could make no advances or payments for the grantor to their exclusion after the sale, and that he had no power to pay over to, or permit the grantor to receive the whole proceeds of sale. He was bound to [**18]  receive and pay over the proceeds according to the terms of the trust, and had no right then to pay over the whole to the grantor or to permit him to receive it. But what was actually done? The land was sold and the purchase money paid before the 18th day of July 1850, of which the deed to the purchaser is presumptive evidence, and the trustee is accountable for the proceeds.

"It is contended that Mrs. Waters must show what the balance was in hands of the trustee, before she can claim any amount to be invested for her benefit. I think not. The onus is on the trustee and his surety. It is enough for her to show that he received the money, and that there is a sufficient balance after the payment of the sums ascertained by the deed. The evidence of his expenses and of the sums paid by him for debts and advances, which he was authorised to make, of which he alone can be cognizant, and of which he ought to have the proper vouchers, must be produced by him.

"According to the decree of the special judge, the insolvency of Speed must be shown, but he has also decided that there is sufficient evidence of his insolvency available for all the claimants. Independent of his decision,  [**19]  I should have thought that every claimant is bound to produce complete evidence of his claim, if required, and cannot avail himself of evidence taken by another claimant, unless the evidence be taken under an order applicable to his claim, or the claims generally. I shall, however, abide by the decision of the special judge.

"In the present state of the case, I think that Mrs. Waters has established her claim, to be allowed out of the estate a sufficient sum to secure her annuity from the time it commenced. In what manner that is to be done, whether a principal sum shall be set aside out of the estate, the interest of which, invested, will be sufficient to pay it, or a life-annuity purchased, may be the subject of arrangement between the parties or decided hereafter by the court--one or the other must be done."

Accompanying this opinion the court passed an order overruling all exceptions inconsistent therewith, and referring the case to the auditor to state a further account in conformity thereto, and stating that "such testimony as may be needed as to Mrs. Waters' claim, or any other needing a re-statement, can be taken by them on the usual notice, or if necessary, an order [**20]  will be passed for taking it in any other form most convenient, or any evidence may be filed or taken, by consent, without a written order."

On the 28th of October 1858, by agreement of parties, certain extracts from the books of Speed were filed, in relation to the sales of the personal estate under the deed of trust from John W. Waters to him, and his disbursements of the proceeds. These extracts show sales of the personalty to the amount of $ 2340.90, and disbursements to the amount of $ 2406.58, leaving a balance of $ 145.60 due Speed. Appended to this account is a statement dated the 26th of June 1850, signed by Waters, in which he says: "I have carefully and repeatedly examined the above account and find it to be correct;" and also two other statements dated the 18th of July 1850, signed by Speed and Waters, as follows: "The above account is all this day settled and closed, to the satisfaction of both parties.--Mr. Waters sold the farm.--J. J. Speed's charges and all claims are paid.--All settled and closed." By the agreement under which this paper was filed it was agreed, that the entries thereon are truly taken from the original books of accounts of Speed, and are in his [**21]  handwriting, and that the signatures of Speed and Waters, where they occur, are in their handwritings respectively; it was further agreed that this paper is to be filed in the cause as proof only, as if filed and proved as above under a commission, subject, nevertheless, to all exceptions as to the admissibility of said evidence, whether as to the time the same was taken or otherwise. The claimant, then, filed exceptions to the admissibility of these entries:

1st. Because the defendants were concluded by the orders of the court passed in the cause, and the submission of the same, from taking any proof.

2nd. Because of the time when, and the circumstances under which, the same was taken and filed.

3rd. Because no acts or agreements of the said Speed and Jno. W. Waters could affect the rights of the claimant, secured to her by the deed of trust.

4th. Because, for the foregoing reasons and other causes, the same was impertinent, immaterial and irrelevant.

On the 22nd of December 1858, the auditor filed his report, statement and accounts, allowing this claim in full, which were ratified by an order passed on the 4th of March 1859, which order also decided further,  [**22]  that the annuity must be secured to be paid to the claimant yearly, and that she could not be compelled to take, in lieu thereof, an allowance in money. The administrators and heirs then appealed from the order of the 6th of October 1858, and all subsequent orders relating to this claim, including the order of the 4th of March 1859.  

DISPOSITION:
Decree reversed and petition of appellee dismissed, each party to pay their own costs.  

HEADNOTES:

By a deed of trust a grantor conveyed real and personal estate to a trustee, in trust to sell the same, and, out of the proceeds, to pay expenses and commissions; then to pay $ 500, advanced by the trustee to the grantor, "and any other advances or payments he may make for me;" then to pay all the just debts the grantor then owed, "as, and when, he may be in funds to do so;" then to invest the balance "in his name," for the grantor's use, and out of the net income of such investment, or balance of funds in his hands, "to pay my mother $ 350 a year, during her life, if it yield so much, and if not, then all it does yield, net; and if it yields more, the net balance of income, over $ 350 a year, to be held in trust for me; and, after the death of my mother, the whole property, and its income, to be held in trust for me." HELD:

1st. That by this deed the grantor, in effect, reserved the right to use the whole trust funds, by requiring advances or payments to be made on his account, and he could exercise this power of appropriation by selling the property and receiving the purchase money, or directing its application for his own use, at any time before investments were made.

2nd. That entries in the books of the trustee, attested by the signature of the grantor, showing the application of the proceeds of sale of the personalty, and that the grantor had sold the real estate and settled with the trustee, are admissible, in evidence, for the heirs of the surety on the trustee's bond, in the case of a claim by the mother against the estate of such surety.

In the case of the sale of an estate to pay debts, an order was passed, setting down the petition of a certain claimant for hearing, on a day limited, provided a copy of the petition and order was served on the other side; and after this period had elapsed, and no answer had been filed, an order was passed referring the claim to the auditor, to be stated, such statement to be subject to the further order of the court. HELD:

That these proceedings could not be regarded as a taking of the petition of the claimant pro confesso, and preventing an answer denying the allegations of the petition, and requiring proof to establish the claim.

In case of claims against the estate of a surety, proof of the insolvency of the principal, taken by other parties before the particular claimant became a party to the proceedings, is not binding upon the heirs in respect to the claim of such claimant.

Where full proof of a claim against an estate is called for, in a proceeding in equity, such requisition, per se, dispenses with the ordinary precautionary proof of the claim prescribed by our testamentary system: primary proof stands in the place of full proof, until the latter is demanded, but, from that moment, the former ceases to be any evidence in the case, and the necessity for its production no longer exists.

A re-argument of a case decided by this court, will not be granted, unless a member of the court who concurred in the judgment, desires it; and, when that is the case, it will be ordered, without waiting for the application of counsel, 

COUNSEL:
Thos. G. Pratt and Thos. S. Alexander, for the appellants argued:

1st. That the claim of the appellee should have been authenticated by such proof, as is required by law, to establish the same to the satisfaction of the orphans court, before it could be recognised by the auditor or court, as a claim legally filed against this estate; that unless a claim is so authenticated, it will not be allowed, although no objection should be made to it by any one interested. And, consequently, having never been so authenticated, has never been legally filed as a claim against this estate. Alex. Ch. Pr., 129, 138, 141. 2 H. & G., 234, Strike vs. McDonald. The appellee did not become a party to this cause until the filing of her petition, (12 G. & J., 48, Hall vs. Creswell;  [**23]  3 Bland. 497, Post vs. Mackall,) on the 28th of March 1856. She did not come in under the notice to creditors, and if not then too late, still, all objections to it were properly taken, and there is nothing in any of the proceedings, which concludes the appellants from making any objection to her claim they saw fit to make.

2nd. That where a claim, like this, is against the estate of a surety in a bond, the claimant is bound to prove the principal debtor insolvent, before she can be allowed to come against the estate of the surety. In this case the appellee has offered no proof whatever of Speed's insolvency. The proof taken by the other creditors cannot be considered as applicable to this claim. But that proof does not establish such insolvency, except in part, and even if it can be considered as applicable to this claim, still the claimant will be entitled to recover of this estate only so much as, by the proof, Speed's estate was inadequate to pay. Alex. Ch. Pr., 139. 3 Gill 94, Clagett vs. Worthington. 2 Bland, 516, 523, Watkins vs. Worthington. This point is open for review on this appeal, for though the special judge decided it the other way, still we could not have [**24]  appealed in reference to this claim from that decision, because it was against the claim.

3rd. That the appellants, by their answers, having objected to the allowance of the claim, and required full proof thereof, and having also filed exceptions thereto, demanding full proof, and such proof not having been furnished by the appellee, the claim should have been rejected, as the proof was decided to be insufficient by the special judge. 14 Md. 166, Ward vs. Hollins.

4th. That the only hypothesis upon which it is assumed on the other side, that the claim is proved, viz: "That the neglect of the appellants to file their answer in time to the petition of the appellee, concludes then as to the facts alleged in the petition," cannot be maintained. No petition was necessary; the filing of the claim duly authenticated, either with or without a petition, would have made the appellee a party complainant in the cause. No answer was necessary or could be required, and no decree pro confesso, was, or could be passed. No objections or exceptions to the allowance of a claim need be filed until the claim is so authenticated as to authorise its allowance by the court, and where the proof [**25]  offered in support of a claim, is determined by the court to be insufficient without exception thereto, it must be unnecessary to file exceptions until some additional proof is offered. Alex. Ch. Pr., 128. 2 H. & G., 234, Strike vs. McDonald.

5th. That the entire fund arising from the sale of the property conveyed by the deed from Waters to Speed, was exhausted either in payments for, or advances to, the grantor. By the provisions of the deed, the proceeds were to be applied to payments and advances made by Speed to Waters, and also to advances to be made before any part was to be applied or invested for any other purpose, and no liability can result from the application of the fund in the manner so expressly provided for in the deed. No question arises in this case, in reference to the creditors of Waters; they have been all paid, and the limitations in the deed for their benefit, can add nothing to the support of the other limitations in that instrument. But even in the case of creditors, a deed executed without their knowledge by their debtor, is revocable by the debtor, a fortiori, as in this case, executed by the son without consideration and without the knowledge of the [**26]  mother, would be revoked by the sale of the property, and receipt of the purchase money by the son. On this point, and as to the construction of this deed, see 2 Story's Eq., secs., 972, 1036, b. 2 Mylne & Keene, 492, Acton vs. Woodgate. 3 Simons, 14, Walwyn vs. Coutts, and same case in 3 Merivale, 707. 3 Merivale, 662, Scott vs. Porcher. Ibid., 249, Sutton vs. Chetwynd. 3 Simons, 1, Garrard vs. Lauderdale. 2 Cox, 355, Bland vs. Bland. 1 Brown's Ch. Rep., (Perkins' Ed.) 165, Wynne vs. Hawkins, and notes. 2 Brown's Ch. Rep., (Perkins' Ed. 454,) Sprange vs. Barnard. 2 Ves., Jr., 533, Malim vs. Keighley. 16 Md. 56, Kalkman vs. McElderry. The deed, therefore, containing this power of revocation, or a power which enabled the grantor to defeat its whole provision by appropriating the whole trust property to his own use, it was null and void. 2 Johns. Ch. Rep., 579, 580, Riggs vs. Murray.

Frank. H. Stockett, for the appellee, argued:

1st. This estate was not settled up when this claim was filed, and it was not, therefore, filed too late; the notice to creditors does not debar a party from filing his claim if the estate has not been settled up. It was therefore filed in time,  [**27]  and the question is, was it properly proved? There was no necessity for an affidavit to the claim; the law in this respect applies only to proceedings in the orphans court, and besides, the defendants having demanded full proof, they thereby waived all preliminary proof, and cannot now make the objection, that proper precautionary proof was not furnished. The copies of the deeds and bond filed with the petition of the appellee, prove themselves, and the recording of the deed, and the execution and recording of the bond by Speed and Kent, are proofs by record that he accepted the trust, and therefore, it was incumbent on the defendants to show affirmatively that Speed had discharged all the trusts of the deed; what were the costs and commissions paid or retained by him, what remained of the proceeds of sale after paying these expenses, and the sum of $ 500 and interest, advanced by him to Waters, and what other advances, if any, were made by him, and also what debts Speed paid and to whom. No debts, except those owing by Waters at the date of the deed, could have been paid by the trustee to defeat the trust to the appellee. Execution, delivery and recording, are evidence of acceptance [**28]  by the beneficiaries under the deed. 11 Md. 41, Hutchins vs. Dixon. 2 Story's Eq., sec. 1036, a, and note 1, sec. 1037, and note 2. Hill on Trustees, 82 to 89, 230, note 1, 330. 1 Vernon, 28, Purefoy vs. Purefoy. Even if the papers filed by agreement on the 28th of Oct. 1858, relating to the disposal of the personal property, be admitted as proof of a proper disposition of the same by the trustee under the deed of trust, to defeat the claim of the appellee on the same, yet it is affirmatively shown by her, that the real estate sold for $ 8000, by the deed to Mrs. Deale, which is not accounted for in any way, and which was more than sufficient to have secured to her the payment of her annuity.

2nd. The deed of trust executed and recorded is alone sufficient proof of the consideration, and the deed must interpret itself, and can alone explain the duties of the trustee with his liabilities, and the rights and interests of the parties under it. 11 Md. 40, Hutchins vs. Dixon. 1 H. & G., 74, Ringgold vs. Ringgold. 2 Md. Ch. Dec., 204, Brown vs. Waters. Even if it had been proved, in the cause, by the appellants, that Speed had never received one dollar of the money for which [**29]  he sold the real and personal estate conveyed to him by the deed, still he would equally have been responsible for the misapplication thereof, though the grantor himself had received every dollar, and executed full releases to him for the same. The deed gave no power to John W. Waters to destroy or vacate the trust. By his deed to Speed, he had divested himself of all control over the estate. His joining in the deed to Mrs. Deale was simply useless, and even if that were proof of his receipt of every dollar of the purchase money, it would not relieve Speed. He could not renounce so as to defeat the interest of the cestui que trust. For these positions, see 4 Gill 395, Dolan and Foy, vs. Mayor & C. C. of Balt. 19 Eng. Law & Eq. Rep., 276, Drosier vs. Brereton. 6 Eng. Law & Eq. Rep., 91, Hutchins vs. Hutchins. 2 Peere Wms., 680, 681, Mansell vs. Mansell. Hill on Trustees, 218, 219, 221, 382, 384, 385, 388. 2 Story's Eq., secs. 1275, 1276. Lewin on Trust, 260, 317, 357 to 367. 12 G. & J., 108, Hatton vs. Weems.

3rd. Kent being only surety for Speed, still his estate is fully bound for all the defalcations of Speed, being co-obligor in the bond, and jointly and severally bound [**30]  with Speed, and being also the only surety. Nor is the appellee compelled to seek payment of her claim from Speed's estate, or to prove it insolvent before she can hold Kent's estate responsible; but if this were so, it is proved in the cause, of which this claim is an integral part, that Speed's estate was insolvent, (6 Gill 302, Comist vs. Wilson,) and the special judge has decided that such proof is for the benefit of all the creditors, and that it is sufficient for the purpose, and that in all those cases such as this, of one surety only, the creditor has the right to have his claim paid in full out of Kent's estate, and this decision has never been appealed from, and is binding and conclusive in this case.

4th. That even if, under different circumstances, it was incumbent on the appellee to have offered other proof of her claim than the execution of the deed of trust, the bond and the sale of the property by the trustee, yet the omission and neglect of the appellants to file their answers, as required by the order of the 25th of February 1857, concludes them as to the facts stated in the petition, prevents them from the denial of those facts, and from calling on the appellee [**31]  for proof of the same, and the claim must be admitted pro confesso.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*71]  LE GRAND, C. J., delivered the opinion of this court.
It is the opinion of a majority of the judges who heard this appeal, that by the trusts declared in the deed from John W. Waters to J. J. Speed, the grantor, in effect, reserved the right to use the whole trust funds, by requiring advances or payments to be made on his account, and that this power of appropriation might be exercised by his selling the land and receiving the purchase money, or directing its application for his own use. The effect of this construction of the deed is, that as to so much of the purchase money as John W. Waters received, or had the benefit of, Speed was not liable as trustee. The decree of the court below must therefore be reversed.
The appellants were not concluded by the order of February 25th, 1857, as supposed by the appellee's counsel. On this point we agree with the Circuit judge, who has stated the practice in chancery in such proceedings. The claim was not disposed of by the special judge, and the Circuit judge states that it [**32]  was heard on its merits, for the first time, when his opinion was filed.
The paper filed on the 27th of October 1858, copied from Speed's books, was admissible, under the agreement, to that effect. The judge had expressly allowed further proof to be taken by agreement, or in the usual mode, and the parties did agree to admit this paper, subject to exceptions. The first objection we have noticed--the heirs were not precluded from taking proof by any previous order or proceeding. The second objection is answered by the remark, that the case had not been finally disposed of, and the permission to take proof had been expressly given with a view to the final action of the court. As to the third:--If, as this court has decided, the grantor had the right to control the proceeds of sales, at any time before investments were made, it is clear that his acts may be proved to show that the trustee had disposed of the funds according to the trust, or that the grantor had done so himself, by the exercise of the power of sale and appropriation. The books certainly ought to be evidence, vouched as 

 [*72]  they are by the signature of the grantor, to show what money had been received by the trustee,  [**33]  and how applied, as far as John W. Waters had connection with the application. His orders on Speed would be evidence, and surely an account of the trust, verified by him, would bind all persons claiming against the trustee and his surety. Of course, if John W. Waters had no right to sell the land and control the proceeds of sale, the argument of the appellee's counsel against the introduction of this paper to bind Mrs. Waters by the acts of her son, would be unanswerable; but, as we have said, this is not the true construction of the deed of Waters to Speed.
These observations dispose of this appeal. But we deem it proper to advert to some matters of practice discussed at the bar.
As to the proof of Mr. Speed's insolvency:--The evidence on this question was taken by other persons than the present claimant, before she became a party to the proceedings, and, we think, the heirs are not more bound by it, than she would have been by proof against her interests. It is not like a final decree for a sale, which establishes the complainant's claim as against all persons. Here the question of Speed's solvency is raised merely for the purpose of letting in claims against the estate of a surety, [**34]  and although under a general order to take proof, all creditors as well as the heirs, might be bound by the evidence so taken, it does not follow that creditors coming in afterwards would be concluded, nor ought the heirs at law to be, in reference to such subsequent claims. The circuit judge was of this opinion, but he felt himself constrained to follow the order of the special judge, who had decided that the insolvency was proved.
It was not necessary to accompany the claim by the oath of Mrs. Waters. "The appellants, by their answer, called upon the appellee for full proof of her claim; and this requisition, per se, would have dispensed with the ordinary precautionary proof of their claim prescribed by our testamentary system, had it been made against the estate of a deceased person. *** Primary 

 [*73]  proof stand in the place of full proof, until full proof is demanded. From that moment they ceased to be any evidence in the case, and there no longer exists any necessity for their production." Allender vs. Trinity Church, 2 Gill 166.
With these views we reverse the decree of the Circuit court, and dismiss the petition of the appellee.
Decree reversed  [**35]   and petition of appellee dismissed, each party to pay their own costs. 

DISSENTBY:
TUCK 

DISSENT:

TUCK, J.--I dissent from so much of the above opinion as places a construction on the deed from Waters to Speed.
A motion was made during the term by the counsel for the appellee, for a re-argument of this case. At the hearing of this motion before Bowie, C. J., Bartol, Goldsborough and Cochran, J., the court overruled the same, and said that they would adhere to the rule adopted by the Supreme Court of the United States in the case of Brown vs. Aspden, 14 How. 25, viz: That a re-argument of a case decided by this court, will not be granted unless a member of the court who concurred in the judgment desires it, and, when that is the case, it will be ordered without waiting for the application of counsel.  

52 of 196 DOCUMENTS 

JOSEPH O'NEAL and others, vs. THE VIRGINIA AND MARYLAND BRIDGE COMPANY AT SHEPHERDS TOWN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

18 Md. 1; 1861 Md. LEXIS 62 

November 2, 1861, Decided 

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

This appeal is from an order making perpetual an injunction, granted upon a bill, filed on the 14th of December 1857, by the Appellee against the Appellants, the collector of the tax and the county commissioners of Washington county, for the years 1854 and 1855, restraining the defendants from selling certain property of the complainant, for the payment of the State and county taxes for those years.

The bill, answers, and admissions of fact, show, that the complainant was incorporated by an Act of Virginia, passed in January 1848, under the corporate name of "The Virginia and Maryland Bridge Company at Shepherds Town;" which law was assented to by the Act of Maryland of 1847, ch. 287, passed in March 1848, in which the name is recited as, "The Maryland and Virginia Bridge Company." The company having been organized under these Acts, in July 1849, purchased from one Blackford, for $ 15,000, the public ferry and ferry rights, across the Potomac at Shepherdstown, with certain lands and improvements thereto annexed, situated on both sides of the river, viz: fourteen or fifteen acres of land in Washington county,  [**2]  Maryland, at the Maryland termination of the ferry, with a ferry house and other improvements thereon, and about a half or three-fourths of an acre of land on the Virginia side, in Jefferson county, with a warehouse thereon. Prior to the passage of the Act of 1852, ch. 337, providing for a general assessment of property in Maryland, this company constructed a bridge over said river, at said ferry, with the necessary roads to the same, at both abutments. This bridge was a wooden structure, covered, resting upon stone abutments on the shores, and stone piers in the river, and was built in such manner as not to obstruct the navigation of the river, if the same had been navigable, as before the construction of the Chesapeake and Ohio canal: and the total cost of the same, including the purchase of the ferry right, was $ 37,069.85.

The assessors, under the Act of 1852, ch. 337, assessed the property, and made the following entry upon the assessment book for Washington county, "Potomac Bridge Company:-- Bridge opposite Shepherdstown, and 10 acres of land with building attached, $ 27,000," and in the assessment leger or book, made from the foregoing by the county commissioners, an account [**3]  was opened headed thus: "Bridge Company at Shepherdstown, $ 27,000." And this latter entry so remained till the 1st of October 1856, when it was changed by prefixing the words, "Virginia and Maryland," and this change was made on that day by the clerk of the commissioners, upon an order of the board, for the purpose of proceeding against the complainant for the taxes for the years 1854 and 1855. No change was ever made in the entry upon the assessment book first above stated. The taxes for 1852 and 1853, were paid by the complainant on the 24th of February 1855, and the tax for 1853 was made out in the name of the "Potomac Bridge Company." The commissioners held their session under sec. 26th of the Act of 1852, ch. 337, in January 1853, in pursuance of regular notice given in the newspapers, for hearing and determining complaints and appeals of persons who felt themselves aggrieved by the valuation of the assessors under said Act, and the complainant did not then appear with any appeal or complaint, or for any purpose.

The answers aver, that the complainant was fully aware of this assessment and valuation from the time it was made, and never objected to it or urged any exception [**4]  whatever, until some two or three years afterwards, when they applied to the commissioners to have a change made, and to be relieved from taxation altogether; which is the same relief they are now asking, but which was refused. It was admitted that the application so referred to in the answers, was made sometime in 1856, and was not in the form of a regular proceeding by bill or petition, and no minute or record was made of the result by the commissioners or their clerk, but the whole proceedings were oral.

It was also admitted, that the assessment, aforesaid, includes the entire bridge of the complainant, (except so much of the abutment on the Virginia shore as may be beyond the limits of Maryland, as prescribed by the charter to Lord Baltimore,) and all the lands and improvements on the Maryland side of the river, but not the toll-house and other improvements on the Virginia shore, which are conceded to be within that State. That the office of business of the company is, and always has been, on the Virginia shore; that the officers of the company reside in Virginia, and two of its directors are appointed by that State; that the capital stock of the company consists of 727 shares [**5]  at $ 50 per share, of which $ 10,000 are held by the State of Virginia, $ 5000 by a citizen of Pennsylvania, and the residue by citizens of Virginia; and that an annual report is made by the company to the Board of Public Works of that State in pursuance of the laws of Virginia.

It was further admitted, that the bridge of the complainant at Shepherdstown, is the only bridge over the Potomac, within the limits of Washington county, and that there is no other organised company for a bridge over that river in that county, beside the complainant; but that there is a bridge over that river at Berlin, in Frederick county, called "The Berlin and Potomac Bridge Company," erected under the Act of Maryland of 1847, ch. 197.

The grounds upon which this company claimed exemption from these taxes, are fully stated in the arguments of counsel, the opinion of this court, and the following opinion of the court below, (PERRY, J.,) delivered upon passing the decree making the injunction perpetual:

"In this case I have had much difficulty in determining the questions that have been made by the bill and answers. I will briefly give the opinion I entertain in the case. The complainant, by [**6]  its Act of incorporation, is known by the name of 'The Virginia and Maryland Bridge Company.' It appears that the assessors for Washington county, appointed by virtue of the Act of 1852, ch. 337, made an assessment of property in these words: 'Potomac Bridge Company, Bridge opposite Shepherdstown, and 10 acres of land, with building attached, $ 27,000,' and that the commissioners, in what is called the assessment leger or book, opened an account headed: 'Bridge Company at Shepherdstown, $ 27,000,' which entry remained in that form, on said leger or book, up to the first of October 1856, when it was changed by prefixing the words, 'Virginia and Maryland.' By the Act of 1852, ch. 337, sec. 25, it was made the duty of the county commissioners, of the respective counties, to cause to be made, on or before the 1st day of March 1853, and on or before said day, annually thereafter, an alphabetical list of the owners of the property assessed by virtue of the Act, together with the amount of his, her or their assessments, respectively answering to his or her name; which said list was to be deposited in the offices of the clerks of the county commissioners, &c.; and it was made the duty of said [**7]  clerks to keep the same in some conspicuous place, in his or their offices, for the inspection and perusal of any person or persons interested therein, without fee or reward. I indulge the belief, that the commissioners of Washington county discharged their duty and complied with the provisions of the law to which I have referred, and that upon this presumption, there would have been found in the office an alphabetical list of the owners assessed, answering to his or her name, at the time required by law, as returned by the assessors.

"The 21st section of the Act of 1852, makes it the duty of the assessors, in case they could not discover the owners of any property within their assessment district, to return the same as the property of some person unknown. The assessors did not value the property assessed in this case, as the property of some person unknown, but assessed it as the property of the 'Potomac Bridge Company.' I have referred to these sections of the Act to show, that the name of the owner of property assessed should appear in the return and alphabetical list, for inspection by the owner; this was no doubt wisely required, so that such owner, or other person interested,  [**8]  might know in what way the conduct of the assessors affected them. The name of the owner was important to enable him or her to know how they were assessed, so that it could have been seen, and if unjustly imposed, an application could have been made for redress, in the mode pointed out, to the commissioners of the county.

"There is nothing in this case to show that the name of 'The Virginia and Maryland Bridge Company' was returned by the assessors, or was found in the alphabetical list, or that it was property held by any person unknown to the assessors or commissioners. Supposing the law intended that the name of the owners should appear, and that an examination or inspection of the list was a right of such owner, can it, when this requirement of the law has been disregarded, be supposed, the commissioners could legally assess the property of one not named or returned as unknown? This list, or return, was deemed necessary. Indeed it is an express obligation of the assessors and county commissioners to have the name returned and alphabetical list made out, as the means of discovering the property and extent of the assessment, so that the commissioners could be appealed to, to [**9]  make such abatement, or to exclude entirely property from assessment, &c.

"It may be though that the description of the property, 'Bridge opposite Shepherdstown,' would gratify the requirements of the law, there being but one bridge of that kind in the limits of the county--that there has been a substantial compliance with the law--that it shows the property intended to be assessed, and the corporation, who is the owner. In this I do not agree. It is, as a general rule, not required to give the name of a corporation with as much certainty as in the case of individuals; that in grants to and from corporations courts will sustain them, though there is a variation in words and syllables. There is a difference between the alteration of a letter or transposition of a word between the name of a natural person and a name of a corporation. It makes entirely another name of the person in the one case, while the name of a corporation frequently consists of several descriptive words, and the transposition of them, or interpolation or omission of them, may make an essential difference in the sense. The true rule has been stated to be, that, in grants and conveyances, the name must be the [**10]  same in substance as the true name, but need not be so in words and syllables. Angell & Ames on Corp., sec. 99.

"I can see nothing by which the true name in this case can be seen or known, unless it be arrived at on account of the property taxed. If it were a case in which there was a transposition of the words of the name, or an omission of some of them, a doubt might exist under such circumstances. But the corporate name of the complainant is, 'The Virginia and Maryland Bridge Company,' and in no place can such a name be seen in the books of the commissioners, except in the year 1856. I think it cannot be doubted, that if the assessment, prior to October 1856, was not valid, the action of the county commissioners in that year could not make it so. 'The Virginia and Maryland Bridge Company' had a right to be heard, and there being no such owner named on the books of the commissioners, the imposition of the tax was without the authority of law, and I know of no power in them by which they can make valid an improper assessment of property, for such period as is claimed in this case. The description of the property in the return of the assessors, does not furnish the commissioners [**11]  with the name of the owner. At least it seems not to have accomplished that purpose in the case under consideration, for that body departed from the name as given by them and contented itself with the name of "Bridge Company at Shepherdstown," such name on the alphabetical list was not its true name, and possibly nothing short of an examination of the assessors' entire return would enable them to know their property was assessed. If the proceeding of the assessors and commissioners had been conducted in such a manner as to show, substantially, the name of the corporation, it may be well questioned, whether this court would have jurisdiction, and whether the only remedy of the complainant was not that which is provided for by the Act of 1852: an application to the county commissioners and an appeal to the Court of Appeals. (See Osborn vs. The Inhabitants of Danvers, 6 Pick., 99. Methodist Protestant Church vs. The Mayor and City Council of Baltimore, 6 Gill 391.) Assuming, however, that the proceedings of the assessors and commissioners had been regular, by giving the true corporate name, and making, as required by law, the alphabetical list, it is still urged, that the commissioners [**12]  do not possess the power to tax the property of that corporation. I cannot forbear being influenced by the provisions of the Act of 1852, sec. 17, which provides, that the stock of a turnpike, railroad or other improvement corporation, shall be valued at the place where its principal office for the transaction of business is established, if the office be within the limits of the State, and if not, then the assessable property of such corporation shall be valued in the county in which it is situated. When I look at the plain and obvious design of the Legislature, to tax the entire property of the State and to make all that is liable to assessment contribute to the common burden, together with this section of the Act, no doubt exists in my mind that such is liable to taxation. The right of taxation is never presumed to be surrendered by the sovereign power, and such surrender is never understood to be made, unless it be the result of express terms or necessary inference, and by the 13th Article of the Bill of Rights, the Legislature can impose no tax upon any particular property, which is not legally borne by every species of property in the State in proportion to its value.  Mayor &  [**13]  City Council of Baltimore vs. B. & Ohio R. R. Co., 6 Gill 290. It is not a case in which they should stand by and see their property illegally exposed to public sale, and then force the purchaser to bring his ejectment to gain possession. In such a case a court of equity will interpose, ( Holland vs. Mayor & C. C. of Balto., et al., 11 Md. 187,) by injunction, in behalf of the complainant.

"If the assessors and commissioners had complied with the law, the only remedy of the complainant for relief was, by an application to the latter body for re-valuation, or such change as is contemplated by the Act of 1852, and should their application be rejected and the party consider itself aggrieved, by an appeal to the Court of Appeals, and in no other mode could relief be had, as such is the law as announced in the case of the Methodist Protestant Church vs. The Mayor and City Council of Baltimore, and the case of Osborn vs. The Inhabitants of Danvers. If the corporation, when taxed, should apply to the commissioners, and show to that body that their property should not have been assessed, then it was certainly competent for them to have appealed to the highest tribunal of the State [**14]  to have determined that question. They have that remedy, and it is not in their province to abandon it and resort to the power of this court for its equitable jurisdiction, which is always upon the notion that he is without remedy at law." 

DISPOSITION:
Decree reversed and bill dismissed.  

HEADNOTES:

A bridge over the Potomac river, and other property of a corporation for the erection of such bridge, lying within the limits of Maryland, is taxable in the county in which it is situated, under the Act of 1852, ch. 337, sec. 17, the principal office of the corporation, for the transaction of its business, not being within the limits of this State.

The property of a corporation was assessed, and entered on the assessors' books, in the name of the "Potomae Bridge Company," whereas the true corporate name was, "The Virginia and Maryland Bridge Company at Shepherds Town." The corporation had knowledge of the assessment, and no reason was assigned for their not going before the commissioners to have the error, as to the name, corrected. HELD:

That in such a case equity cannot interfere in behalf of the corporation, and relieve them from the payment of the tax so assessed.

Taxes are laid for the support of government, and all property made liable for contribution to this object, ought to be embraced in assessments for that purpose.

Tax assessments ought not to be vacated, and property released altogether, because the public officers have not strictly followed the provisions of law, which are merely directory; assessments are not invalid if such directions are not complied with.

If the property owner omits to pursue the relief offered by the tax laws against the improper exercise of the taxing power, he cannot be relieved in equity, if at all, unless a strong case is presented.

In such case the property owner must show he has not been in default in availing of the means provided by the tax laws, and there must be something more than legal error assigned; facts must be presented appealing to the conscience of the court, to prevent wrong and injustice.

If the objection, as to the manner of making and returning the assessment, is merely technical, and goes to matter of form and not to substance, a court of equity ought not to interfere.

Substance, and not form, is to control the construction of legislative enactments prescribing a mode in which acts are to be done.

The tax laws require public notice to be given of the meeting of the commissioners to correct errors, &c., in assessments, and the laws and publication impute notice to all persons, whether they have actual information or not.

The tax laws authorise the commissioners to increase or abate valuations, and to exclude property improperly valued, and, where such remedy is afforded, a court of equity has no jurisdiction to make corrections. 

COUNSEL:
A. K. Syester, for the appellants, argued at length the following points:

1st. That the assessment, as made by the assessors in the first instance, was sufficiently certain to enable the county commissioners to levy, and the collectors to collect, the taxes imposed upon the property of the appellee; and although the appellee may not have been properly styled in the return books of the assessors, still it was sufficiently designated to inform every person acquainted with or interested in its property, of the party intended to be assessed therewith, and if so, that was all that was required. Act of 1852, ch. 337. 2 Gill 487, State vs. Mayhew.

2nd. That whatever lapse may have been made by the assessors in the style of the appellee in the return book, the identification is rendered sufficiently certain by the county commissioners, when they, upon the return of the assessment to them, entered the [**15]  assessment of the property of the appellee in their assessment leger to the "Bridge Company at Shepherdstown," there being no bridge company other than the appellee to answer such a description.

3rd. That whether the form of the entry made by the assessors in their return book, or made by the commissioners in their leger, were sufficient or not, still, it is insisted, the county commissioners had ample power to correct any error that may have been made in the entries, in the style of the owner of the property, and that the subsequent action of the commissioners in prefixing the proper corporate name of the appellee to the imperfect designation of the owner, on their books, was legal and binding on the appellee, as much so as if the assessors, themselves, had so correctly styled it by its proper name in the beginning. Act of 1852, ch. 337, sec. 27.

4th. That the appellee, however, is concluded by its own solemn acts of recognition of the correctness and legality of the assessment.

5th. That the objection to the entries on the assessment book, forms no ground for relief in a court of equity, where substance and not technical formality is regarded. The whole case is destitute [**16]  of equity. 10 G. & J., 358, Fowler vs. Lee.

6th. That the compact of 1785 has no application to the case, and therefore imposes no restriction on the authorities of this State, in levying a fair and equal tax on all the property that may be found within the chartered limits of the State, whether that property belongs to citizens of Virginia or not. 2 Bland, 99, Binney's case.

7th. That the power to levy taxes to support the goverment is never presumed to be waived or renounced by the Legislature, but it requires unequivocal language expressive of such intent; and as neither the compact of 1785, nor the Act of 1847, makes any provision upon the subject of taxation, it therefore follows, that the Legislature of this State has not divested itself of the taxing power over property situated as that of the appellee. 6 Gill 288, City of Balt. vs. Rail Road Co. 4 Pet., 514, Providence Bank vs. Billings, et al. 11 Pet., 420, Charles River Bridge Co. vs. Warren Bridge. 10 How., 376, Phil. Wil. R. R. Co. vs. State of Maryland.

8th. That the county commissioners had, and still have, exclusive control and jurisdiction of the subject matter of complaint in this case, and were [**17]  and are competent, and they only competent, to extend to the appellee the appropriate relief, if it be entitled to any; and application having been made to that body for the same relief now asked, and being refused, and the appellee failing to pursue its remedy as provided by law, it is effectually concluded, and a court of equity can take no jurisdiction in the premises. Act of 1852, ch. 337, secs. 26, 31, 32, 35. 6 G. & J., 312, Gott & Wilson vs. Carr. 6 Gill 391, Methodist Church vs. City of Balt. 39 Eng. Law & Eq. Rep., 553, Newry Railway Co., vs. Ulster Railway Co. 26 Wend., 132, City of Brooklyn vs. Meserole.

D. Weisel, and J. R. Tucker, (Attorney General of Virginia,) for the appellee, argued the following points, the argument of Mr. Tucker being confined to the points relating to the interstate rights of Maryland and Virginia.

1st. That the appellee was not assessed under the Act of 1852, ch. 337, and agreeably to its provisions, and the other Acts of Assembly in force in such cases, the property claimed to have been assessed, not having been assessed in the name of the appellee. Acts of 1841, ch. 23, secs. 9, 22, 23, 27, and 1852, ch. 337, secs. 21, 25, 29. These [**18]  laws require that the name of the owner, when known, must be returned by the assessors, property must be assessed in the names of the owners thereof respectively, and if an owner cannot be found, or is unknown, the return must show it to be the property of some person unknown. This corporation had a charter name which ought to have been found out by the assessors, but it was not so done, and the property was returned as, and assessed in the name of the "Potomac Bridge Company;" a name by which it could neither sue nor be sued. Not being assessed in its proper name, the corporation was not bound to make an appeal to the commissioners to have the assessment changed, nor had the commissioners any power, after the assessment was made, to usurp the authority of the assessors and change the name so as to make it the name of this corporation.

2nd. That the appellee is a Maryland corporation, and its capital stock only is liable to taxation, whether owned by residents or non-residents of this State, the laws and decisions of Maryland sufficiently pointing out the mode of assessing the stock and enforcing the payment of the tax; and the shares represent all the property of the company.  [**19]  Acts of 1841, ch. 23, secs. 1, 16, 17, 18; and 1852, ch. 337, secs. 1, 17, 18. 12 G. & J., 117, Tax Cases. 2 Gill 494, 499, State vs. Mayhew. 6 Gill 295, 296, 297, City of Balt. vs. Railroad Co. 5 Gill 236, Gordon vs. City of Balt. Bill of Rights, Art. 13.

3rd. That the bridge itself is not liable to taxation, being a highway, any more than a turnpike road, or the corpus of a canal, or the public ferry it superseded. It is not a portion of the assessable property of the corporation, the Potomac river, itself, being a public navigable river. Act of 1768, ch. 5. 1 Harg. Tracts, ch. 3, page 9 to 10. Shultes on Aquat. Rights, 134, in 24 Law Lib. Angell on Water Courses, 201 to 207. 1 Showers, 255, Payne vs. Partrige. 5 H. & J., 195, Browne vs. Kennedy. 1 Rand., 417, Hayes vs. Bowman. 1 Rand., 33, Mead vs. Haynes.

4th. That under the compact with Virginia, of 1785, ch. 1, sec. 1, the bridge, or at least one-half of it, is Virginia property, or property attached to the Virginia shore, and exempt from the taxing power of Maryland; that by that compact, Maryland surrendered in favor of Virginia her power to tax the property within her chartered limits on that shore, and [**20]  all improvements projected therefrom, out, into or over the river, so as not to interfere with its navigation.

On this point Mr. Tucker said, there is reason to believe the received opinion as to the construction of Lord Baltimore's charter for Maryland, is not the correct one; and produced a copy of an original charter translated by Tomlyn, in which the description of the southern boundary differs in some material points from that usually received as the original charter in Maryland, and showing that the River Potomac was within the limits of Virginia. He further stated, that for more than eighty years, Virginia had exercised jurisdiction over the Potomac River by granting ferry privileges, establishing ferries and ports of entry, and making pilot laws; whilst there was no evidence of the exercise of any power on the part of Maryland to grant ferry privileges. He referred to Rev. Code of Va. of 1819, pages 243, 343. Cons. of Va. of 1776, sec. 21. He further argued that the taxing power may be relinquished by necessary implication, as well as by express terms, and that it was so relinquished in reference to the property now in question, 1st, by the compact of 1785, and 2nd, by [**21]  the incorporation Act of 1847. That the compact should be construed liberally, he cited Vattel, ch. 22, and pages 247 to 270, and also referred to the case of Handly's lessee vs. Anthony, 5 Wheat., 375.

5th. That by the tax laws of Maryland the assessors could only assess property in Maryland, and liable to taxation; not property exempt from taxation, or lying beyond the taxing limits of the State; and if such property (entitled to exemption) were assessed by them, an appeal to county commissioners was not the only or exclusive relief, (Act of 1852, ch. 337, sec. 26,) but a court of equity can be resorted to for the purpose, and its restraining powers invoked, when a sale of property for taxes thus illegally imposed, is attempted. Especially so, when the property assessed lies beyond the jurisdiction of the State, and the attempt is to sell property in the State for taxes levied upon such assessment. 11 Md. 186, Holland vs. Mayor & C. C. of Balt. 3 Gill 23, Howell vs. The State.

6th. That the appeals allowed to the county commissioners, and thence to the Court of Appeals, took cognizance only of the complaints made by persons who were aggrieved by the valuation, by [**22]  the assessors, of property liable to be assessed, and were not given to relieve persons from taxation on property not liable to be assessed and taxed. Otherwise, by a failure to appeal, property expressly exempt from taxation by law, could be brought under taxation; or property in another State could be subject to taxes in Maryland, by first assessing it, and then by levying and selling any property which the owner might have contiguous thereto, or otherwise, in Maryland. Besides, the time of appeal is specified in the tax laws of Maryland, and an appeal would lie at no other time; and any application at any other time for relief, would be nugatory, or if made and entertained by the commissioners, would be without their jurisdiction, and such action or proceedings would not preclude a resort to a court of chancery for redress for the same matter or cause of complaint; nor would payment of illegal taxes at one time, bind the party, thus paying them, to a continuance of their payment without remedy. 6 Gill 402, 403, Methodist Church vs. City of Baltimore.

R. H. Alvey, for the appellants, in reply.

The leading propositions of this case are reducible to two:

1. Whether [**23]  the property assessed and levied on, under the facts and circumstances of this case, is legally exempt from taxation?

2. Whether a court of equity can properly exercise jurisdiction to relieve the appellee from the payment of the taxes, assessed and attempted to be enforced by the proper officers, either because of an exemption of the property from taxation, or because of irregularities and informalities committed in the assessment? And--

1. Is the property exempt from taxation? If so, it is incumbent upon the appellee to establish it clearly and beyond doubt.--It is contended, for the appellee, that the property assessed is not liable to taxation, upon three distinct grounds:

1. That, under the compact of 1785, this State relinquished her taxing power over property situated as is the bridge of the appellee.

2. That the bridge itself, being a highway, is not subject to taxation,--not being of that species of property legally assessable.

3. That the appellee being a Maryland corporation, or corporation authorised by the concurrent legislation of the two States of Virginia and Maryland, its capital stock only, and not its property, is taxable.

A great deal [**24]  of the argument for the appellee has been predicated of the territorial rights and jurisdiction of Virginia, in and over the Potomac river. It is supposed that Virginia has, at least, an equal and a concurrent right and jurisdiction with Maryland, over the Potomac. But, whatever controversy formerly existed between the two States, as to their respective chartered claims to territory and jurisdiction, it has long since been adjusted in a spirit of amity. The charter of Maryland defines the southern boundary to be, from "the first fountain of the river Potomac, thence verging towards the south unto the further bank of the said river, and following the same on the west and south, unto a certain place called Cinquack, situate near the mouth of the said river," &c. "To the full extent of this call for the right bank of the Potomac, Maryland has always held; and under that holding, all the islands in the river have been granted by the patents issuing from the land office, or under legislative enactments, or titles derived from this State; and the whole of the bed of the river, above tide, it is believed, has always been admitted to be rightfully parcel of the territory of Maryland." Binney's [**25]  case, 2 Bland, 127. And to this full extent has Virginia, by her Constitution of 1776, acknowledged the rights and claims of Maryland; for by that Constitution are renounced and confirmed to the State of Maryland, "all the territory contained within its charter, with all the rights of property, jurisdiction and government, and all other rights whatsoever, which may at any time heretofore have been claimed by Virginia." Seeing, then, that the entire Potomac, "unto the further bank of the said river," is within the chartered limits of Maryland, and that she has always claimed and exercised jurisdiction over it, and that Virginia has acknowledged and confirmed the right, if the property sought to be taxed is located on the Maryland side of this clearly established boundary, there can be no question of mere territorial jurisdiction for discussion here. And hence it is, that so much of the discussion on the part of the appellee, has been wholly inapplicable and foreign to the case, as presented by the record; for it is expressly admitted, in the agreed statement of facts, that the assessment was only upon the property of the appellee, found within the chartered limits of Maryland. No property [**26]  beyond it has ever been interfered with, nor is hat the complaint here. The complaint is, that the bridge structure over the Potomac river, and the land of the appellee on the Maryland side of the river, have been assessed. There being, then, no question of mere boundary or territorial jurisdiction, the question is one of exemption by some competent Act of Maryland. This exemption is supposed to be secured to the appellee by the compact of 1785. Upon the true and proper construction of this compact, I contend:

1. That it does not extend to that portion of the Potomac river over which this bridge is erected, or to any portion of it above tide water; and--

2. That, were it even construed to extend to the entire river, as well above as below tide-water, there is no clause or provision in the compact contemplating the exemption claimed.

That it does not extend to the river above tide-water, is manifest from its various provisions, all applying only to waters that were then, and by nature, navigable, and regulating the terms upon which the navigation was to be enjoyed and conducted by the citizens of the two States. This compact is to be construed according to the intention [**27]  of the parties at the time it was made, and we are to arrive at that intention by ascertaining the objects and subject matter to which its provisions were applicable at the time. We know that the Potomac river, above tide-water, was not, in 1785, an object of such provisions as we find in this compact. It could then and can now, in the nature of things, have no application to the river above tide-water. If it be construed to extend to the river above tide, to what extent will it be applied? Will it be said that it applies to the entire river, to its "first fountain?" And if so, to the fountain of which branch, the northern or southern? It has been settled by judicial construction of this compact, that it does not apply to the river Potomac higher than the flow of the tide. Binney's case, 2 Bland, 125 and 126.

But if the compact were supposed to apply to the river above tide-water, in what clause or article of it is found the exemption claimed? It must be admitted, that it is not expressly granted; and from what is it necessarily implied?

Did this State intend, by that compact, to give up and abandon any of her domain or territorial rights? The compact is confined exclusively [**28]  to matters of jurisdiction and navigation; "it leaves the territorial rights of the parties untouched." 2 Bland, 127. It is but "a series of commercial regulations, constituting a treaty of commerce, predicated upon the basis of free and equal rights in the navigation of these rivers, to be maintained for their common benefit, by their common efforts, and at their joint expense, and securing these in a manner eminently calculated to promote and establish a harmonious and beneficial intercourse." McMahon's History of Md., 61. Such being the character of this compact, upon the adoption of the Federal Constitution, which devolved upon Congress the exclusive power of regulating commerce with foreign nations, and among the several States, its provisions were superseded; for the power of regulating commerce extends to the regulation of navigation, and to every species of commercial intercourse between the United States and foreign nations, and among the several States, and is exclusively vested in Congress, and no part of it can be exercised by a State. Gibbons, vs. Ogden, 9 Wheat., 1.

But whatever provisions of the compact may still be of force, if any, there is not the least reason [**29]  to suppose, that it was ever the design to renounce the taxing power, so essential to the State. "It resides in government as a part of itself, and need not be reserved, when property of any description, or the right to use it in any manner, is granted to individuals or corporate bodies." Providence Bank vs. Billings, et al., 4 Pet., 562. There is no express exemption, nor is there any by necessary implication under this compact. Why then should this corporation be exempted from such taxes as every citizen, holding property in the State, may be required to pay? It was said by the Supreme court of the United States, in the case of the Phil. & Wilm. R. R. Co., vs. The State of Maryland, 10 How., 393, of a corporation, seeking an exemption from taxation by implication, as in this case, that "there is no provision in the law exempting its stocks or its property, real or personal, from taxation. And certainly there is no reason why the property of a corporation should be presumed to be exempted, or should not bear its share of the necessary public burdens, as well as the property of individuals. This court, on several occasions has held, that the taxing power of a State is never presumed [**30]  to be relinquished, unless the intention to relinquish is declared in clear and unambiguous terms." Charles River Bridge vs. Warren Bridge, 11 Pet., 422. Mayor & C. C. of Balt., vs. Balt. & Ohio R. R. Co., 6 Gill 288. Mayor, &c., of Balt., vs. Board of Police, 15 Md. 376.

Nor does the fact that the State of Virginia holds a portion of the stock of the corporation entitle the appellee to a more favorable consideration. The State is to be regarded as simply a stockholder, with no greater privileges then individuals owning the stock. She can urge no claim to exemption upon any grounds of comity, because we are not dealing with her in her sovereign capacity. "Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted." Bank of U. S., vs. Planters' Bank of Georgia, 9 Wheat., 907. Louisville Railroad Co., vs. Letson, 2 How., 497. Curran vs. State of Ark., 15 How., 309.

But how is it that the appellee can claim exemption, under the compact of 1785, in the name and behalf of Virginia, when [**31]  it is alleged and insisted that it is a Maryland corporation? If it be a Maryland corporation there is an end of the claim to exemption. For it is the body corporate with which we have to deal, and not with the individuals composing it, and whether they are citizens of Virginia or Maryland, is immaterial.

The next ground upon which exemption is claimed for the bridge is, that, being a highway, it is not taxable. This objection to the assessment turns upon a very simple question; and that is, whether the bridge structure is property, either real or personal? For if it be of either kind, it is liable. The Act of 1841, ch. 23, sec. 1, provides "that all real and personal property in this State," and after specifying the various descriptions, then further provides, "and all other property of every description whatsoever, shall be valued agreeably to the directions of this Act, and shall be chargeable according to such valuation, with the public assessment;" and by the Act of 1852, ch. 337, it was enacted that all property, of every kind and description, "now by law liable to be valued and assessed, and chargeable with taxes in this State," should be valued and charged. The bridge [**32]  is certainly property. It is profitable property, it yields the company its tolls. Its value is represented by the stock of the company. It is liable to be taxed upon the same principle that the bed of a railroad, its rails, and other structures, are assessed. The decisions are express, that assessments on such structures are proper. The Tax cases, 12 Gill & John., 117. The P. W. & B. Railroad Co., vs. Bayless, 2 Gill 355. The Phil. & Wilm. R. R. Co., vs. Maryland, 10 How., 376.

Nor is the third ground of objection to the assessment better founded. It is agreed, that nearly all the stockholders are non-residents of this State; that all the officers of the corporation reside in the State of Virginia; and that the principal and only office of business of the company, is in the latter State. Nor is it pretended, that any part of the capital stock, as such, has been assessed by the authorities of this State. Either the stock in the hands of the holders, or the property of the corporation is to be assessed; and, as in a case like this, where the principal and only office of business of turnpike, railroad, canal, or other improvement corporations, is beyond the limits of the State,  [**33]  and therefore, not subject to its jurisdiction, the Act of 1852, ch. 337, sec. 17, provides, that "the assessable property of such corporations shall be valued and assessed, in the county or counties in which it is situated." It is very manifest, that the only tax that can be enforced against this corporation is that upon the assessment of its property found within the State, and not of the stock in the hands of unknown stockholders residing out of this State.

The second leading question presented, is one of jurisdiction. No fraud or surprise is alleged or pretended. The application is one, simply, to have revised the acts and judgment of an inferior tribunal of special and limited powers and jurisdiction. The mode of proceeding by these inferior officials, the assessors and commissioners, is particularly prescribed; and a particular mode pointed out by statute, to those thinking themselves aggrieved, by which they can obtain redress. There is no power or jurisdiction conferred upon the courts of equity, "to review or control the determination" of either the assessors or commissioners; but the power to review and correct errors, mistakes and abuses in the exercise of the powers [**34]  of subordinate public jurisdiction, and in the official acts of public officers, belongs exclusively to the courts of law; and in this case, by express direction to the Court of Appeals, upon appeal from the judgment of the commissioners. In a case in principle identical with this, Ch. Kent declared that, "in the whole history of the English Court of Chancery, there is no instance of the assertion of such a jurisdiction as is now contended for." Mooers vs. Smedley, 6 Johns. Ch. Rep., 28. And in the case of The Mayor of Brooklyn vs. Meserole, 26 Wend., 138, 139, 140, it was said by the court that, "the question whether these subordinate tribunals have acted in pursuance of the powers conferred upon them by law, and whether their acts are void or valid, involves an examination of purely legal principles, unmixed with equity." It is admitted that the assessment of the property was made by the assessors, and that the subject matter has been, and is still, before the county commissioners; that although due notice was given to all concerned, to come forward and urge their objections to the assessments, the appellee never appeared, but recognized and acquiesced in the assessment by paying [**35]  the first tax bill that was presented; that an application was made to the county commissioners to relieve the appellee from the tax, but that application was refused, and the party neglected and failed to take an appeal as directed by the statute. I contend that the appellee is concluded by the judgment of the commissioners, and that the only mode by which a review of their judgment could be had, was by an appeal direct from their judgment. The case of the Methodist Church vs. City of Balt., 6 Gill 391, is directly in point, and conclusive of this case. There the law having given to parties considering themselves aggrieved by the proceedings of the street commissioners, an appeal to the city court, as here to the Court of Appeals, the former Court of Appeals decided, that the party complaining could seek redress only in the city court, as directed by the statute. And, in delivering the opinion of the court, Judge Dorsey said: "To the court of chancery or county court, sitting as a court of equity, no such power is delegated, nor can it be lawfully or judiciously exercised by those tribunals. To persons aggrieved by the proceedings of the commissioners in cases like the present,  [**36]  the Legislative enactments upon the subject have provided the tribunal and means of redress, and through these only can it be successfully sought." 6 Gill 402.

The technical objection to the assessment, upon the ground of informality, and the misnomer of the appellee, is wholly untenable and unavailing here. There is no allegation of surprise, and the party, in fact, had notice, and acted on it. All parties owning property in the State, are bound to take notice of the existence of the laws affecting their property, and to know by what means taxes are assessed and collected. The levy of the taxes constitutes a lien upon the property; and the proceedings are altogether in rem. Thompson vs. Carroll, 22 How., 432 423. The law authorises the assessment to parties unknown, and so, too, to the heirs of deceased parties, without naming them. The object of the true name of the owner is more to enable collectors and officials to collect than to give the parties notice; and the true name is in no case material, except where proceedings are taken to sell for taxes. The designation of the owner, however, was sufficiently certain in this assessment, and the commissioners had ample power [**37]  under the 27th sec. of the Act of 1852, to make any correction or supply any omission, necessary to completeness. But whatever mere technical defect may have existed in the assessment, the Act of 1852, ch. 337, sec. 35, has prohibited any advantage being taken of it. It provided that, on appeal, 'neither party shall be permitted to discuss any point involving merely a question of value or of regularity, or any other question of fact merely." If the party is thus prohibited on a direct appeal from the action of the commissioners, how is it possible that it should be done indirectly, and through the agency of a court of equity--a tribunal that is proverbially opposed to relieving parties upon mere informal or technical grounds? 

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

OPINIONBY:
TUCK 

OPINION:

 [*23]  TUCK, J., delivered the opinion of this court:
The admissions of fact, to be found in the agreement, on which this case was tried, render it unnecessary to examine the points that were so fully argued at the bar, touching the inter-state rights of Maryland and Virginia. It is admitted that the property on which this tax was assessed, lies within the limits of Washington [**38]  county, in this State; this brings it under the operation of the 17th section of the Act of 1852, ch. 337, which provides, that where the office of a turnpike, railroad, canal, or other improvement corporation, is not within the State, "the assessable property of such corporation shall be valued and assessed in the county in which it is situated." We agree, in opinion, with the judge below, that this bridge-property was a proper subject of taxation under that Act. It is plain, upon the words of the Act, and need not be amplified. Howell's case, 3 Gill 14. 4 Peters 563.
The questions, relating to the manner of making the assessment, and the proceedings of the commissioners of Washington county, are more difficult of solution; but upon the best consideration we have been able to bestow upon them, we have reached the conclusion, that the views of the learned judge cannot be sustained.
Taxes are laid for the support of government, and all property made liable for contribution to this object by the Constitution and laws, ought to be embraced in assessments for that purpose. It is not only the duty of the Legislature to reach all descriptions of property,  [**39]  for the sake of justice to all the citizens, but the interests of the State require it. To this end the 

 [*24]  tax laws have made provision for the correction of errors on the part of the assessors, by appeal to designated tribunals; so that if they perform their duty, excessive valuations are not likely to occur; nor will any persons escape, whose property is liable to be taxed. But assessments ought not to be vacated, and the particular property released altogether, because the public officers have not strictly followed the provisions of law, which are merely directory. It is not said any where that the assessment shall be invalid if such directions are not complied with. For example, suppose the commissioners neglect to have lists prepared and deposited in the clerk's office, or the clerk were to omit his duty in that behalf, as required by the 25th section of the Act of 1852, ch. 337, would the whole assessment be inoperative, and all the property of such county discharged from its contribution to the public expenses? In the case of Young vs. The State, 7 G. & J. 253, where a sheriff's bond had not been executed according to law, it was held that the parties [**40]  were liable; that the formalities were required for the public security, and not for the benefit of the obligors. It was also said, "substance, and not form, is to control the construction of legislative enactments, prescribing a mode in which acts are to be done." Where provision is made for the relief of property owners against the improper exercise of the taxing power, the law expects those concerned to be diligent in protecting their interests; and if they omit the opportunity, they cannot be relieved in equity, if at all, unless a strong case is presented, showing, among other things, that they have not been altogether in default in availing of the means provided by the tax laws. And there must be something more than legal error assigned: it must present facts appealing to the conscience of the court, to prevent wrong and injustice. 6 Gill 391. 6 G. & J., 312.
It is not averred here that the assessment was excessive, or that it was made without notice to the owners, and that they had no knowledge, until after the time for appealing to the commissioners had expired, even conceding that these averments 

 [*25]  would have entitled the company [**41]  to relief. The ground of the equity is, that the property is not taxable at all, and that the assessment had not been made and returned according to the law. If the objection as to the manner of making and returning the assessment, is merely technical, and goes to matters of form, and not to substance, this court ought not to interfere. It is not pretended that the bridge-property of the company was not assessed. The case shows that, if they pay this tax, they will pay on their own property and on none other. The answer shows that they had knowledge of the assessment: and no reason is assigned for their not going before the commissioners to have the supposed errors corrected. The entries in the books sufficiently identify the property. The complaint is, that their property is entered in the name of the "Potomac Bridge Company," which is not their corporate title, and the proceeding was commenced, not to correct the error by having the proper name inserted on the books, and thereby charge the real owner, but to avoid payment altogether. We have no power to make the correction, for the benefit of the public, which the commissioners might have done, and if courts of equity were to interfere [**42]  in such cases, parties taxed, instead of going before the proper tribunal to have errors corrected, and thereby, whilst protecting themselves, secure to the State or county their just demands against the property, would wait until the time had elapsed, and then, by proceeding in equity, escape altogether. 6 Gill 391.
Much stress was laid on the 25th section of the Act, as showing that some important privilege was designed to be conferred on property owners, and that this property had not been properly set out in the lists placed in the clerk's office. It will be observed that the lists are required to be made out in March, after the assessments are corrected in January, in which month the commissioners are required to meet. Hence, it is clear that, the supposed error in this list did not injure the company, nor so mislead their officers as to the property and the owner, thereby preventing their application to the board of 

 [*26]  commissioners in proper time. All persons must take notice of the law. The Act of Assembly requires public notice to be given of the meetings of the commissioners. The Act and the publication impute notice to all persons, whether they [**43]  have actual information or not. The 26th section of the Act authorized the commissioners to increase or abate valuation, and to exclude property which had been improperly valued. It is well settled that, where such remedy is afforded, a court of equity has no jurisdiction to make corrections. Methodist Protestant Church vs. Mayor & C. C. of Balt., 6 Gill 391.
For these reasons the decree must be reversed and the bill dismissed.
Decree reversed and bill dismissed. 

53 of 196 DOCUMENTS 

WM. SELDEN, and others, vs. ANN T. WASHINGTON, Admx. of GEORGE C. WASHINGTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

17 Md. 379; 1861 Md. LEXIS 47 

October 29, 1861, Decided 

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

Assumpsit, brought on the 26th of February 1853, by the appellant against the appellee's intestate, on three promissory notes, the first for $ 500, drawn by John Lee in favor of George C. Washington, or order, and by him endorsed, dated "Washington, Aug. 3rd, 1852," and payable sixty days after date; the second for $ 700, drawn, endorsed and payable as the former, and dated "Washington, Sept. 2nd, 1852;" and the third for $ 200, dated "Washington, Oct. 2nd, 1852," drawn by George C. Washington in favor of John Lee, or order, and by him endorsed, payable sixty days after date, "at the Farmers and Mechanics Bank of Georgetown." After suit brought, the defendant died, and the appellee, his administratrix, was made defendant, and the declaration was filed against her, containing three counts, one on each of said notes, in the order above stated. Plea, non-assumpsit.

Exception. The plaintiffs offered in evidence the notes sued on, and proved the making, endorsements and delivery of the same to the plaintiffs. They then proved by Bradley, a notary public of Washington city, District of Columbia, before, at the time, and since [**2]  the two notes drawn by Lee, and endorsed by the defendant's intestate, became due, that on the 5th of October 1852, about 3 o'clock, witness, at request of the plaintiff, received the first of said notes, made inquiry for J. Lee, the drawer, of the runner of the bank and other persons, (including some of the plaintiffs,) and was informed that he lived in the country, somewhere, they believed in Frederick county, Maryland, and not being able to find the drawer, J. Lee, in the city, he having no place of business there, witness presented said note for payment at the Patriotic Bank, Washington city, and demanded payment thereof, and was informed there were no funds there, and he thereupon, after 3 o'clock, P. M., on the same day, protested said note for non-payment; that afterwards, on the 4th of November 1852, witness received the second note, and having inquired at the banks and other places, could find no one who knew the drawer, J. Lee, but was informed by some one in the bank, he believed he lived in the country, somewhere in Frederick county, Maryland, and being unable to find J. Lee, on that day witness, at request of the plaintiffs, presented said note at the Exchange Bank, in [**3]  the city of Washington, for payment, and demanded payment thereof, when and where he was informed there were no funds there to pay it, and on that day, after 3 o'clock, P. M., witness, at the request of the plaintiffs, protested said note for non-payment; that on the days respectively upon which said protests were made, as above stated, witness put in the post-office, in Washington, a notice to the endorser, addressed to George C. Washington, Georgetown, of the tenor and effect following: "Washington, Oct. 5th, 1852.--A note drawn by J. Lee, dated Washington, August 3rd, 1852, at sixty days after date, for $ 500, due, by you endorsed, and for which you are liable, has this day been protested for non-payment, at the request of Selden, Withers & Co." The notice for the second note is in the same words, varying only to suit the date of protest, and the description of the note. This witness further proved that George C. Washington, the endorser, resided in George town, in October and November 1852, at the several times of the notices of protest being directed to him, and that his residence was about two and a half miles from the banks in Washington, at which witness inquired, but witness [**4]  did not inquire of said George C. Washington for the residence of the drawer, J. Lee; and also proved that said Lee had no place of business in Washington or the District of Columbia. Witness further proved that there is, he believes, a usage and custom among banks in Washington--of three banks there he knows there is and has been for fifteen years past--when a promissory note is made and dated in Washington, by a person residing out of the District, and having no place of business there, to present the note for payment at some bank or other public place, and inquire for the maker, and protest if not paid.

The defendant then proved that John Lee, the drawer, lived in Frederick county, Maryland, between Petersville and Burchettsville, in that county, and had lived there for forty years last past, in each of which places there was a post-office, and that, in 1852, he was a member of the General Assembly, and delegate from said county, and had also been a member of Congress from that district of Maryland, where he resided, and was known in Washington as a resident of Frederick county. The defendant then asked the court to instruct the jury:

1st. That there is no sufficient evidence [**5]  of demand by the plaintiffs upon, and refusal of payment by, the said John Lee of the said notes mentioned in the first and second counts of the declaration, or of any sufficient excuse for not making the same, to entitle the plaintiffs to recover in this action on said counts.

2nd. That there is no sufficient evidence of notice of the demand upon and refusal of the said John Lee to pay the said notes mentioned in the first and second counts, to entitle the plaintiffs to recover on said counts.

3rd. That if the jury believe, from the evidence, that the said John Lee, at the time of making by him of the notes mentioned in the first and second counts of the declaration, and afterwards, until after the maturity of the same, did not live or reside in the city of Washington, and had there no place of business, and had a known and permanent residence in the State of Maryland, that then the plaintiffs are not entitled to recover on said counts.

4th. That if the jury shall believe, from the evidence, that the said John Lee, at the time of making by him of the notes mentioned in the first and second counts of the declaration, and afterwards, until after the maturity of the same,  [**6]  did not live or reside in the city of Washington, and had there no place of business, and had a known and permanent residence in the State of Maryland, and that the said John Lee's residence was known to the plaintiffs or the notary public, or could have been discovered by application to the endorser, or otherwise, by due diligence, that then the plaintiffs are not entitled to recover on said counts.

The court (BREWER, J.) granted these instructions, and to this ruling the plaintiffs excepted. The verdict, as stated in the record, is, that the jury "upon their oaths do say, that the defendant did assume upon herself in manner and form as the aforesaid plaintiffs within against her have complained, and they assess the damages of the said plaintiffs, sustained by occasion of the non-performance of the promise and assumption aforesaid, to the sum of $ 252.75." From the judgment thereon rendered, the plaintiffs appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

A note was dated Washington, and was not, on its face, made payable at any particular place. The maker had no place of business or residence in Washington or the District of Columbia, but resided in Frederick county, Maryland, and the notary having, on inquiry, ascertained this fact, presented the note to one of the banks in Washington city, and made demand of payment, and received for answer, "no funds here." HELD, that this was a sufficient demand of payment.

In such a case, a notice to the endorser, setting forth the date and amount of the note, and then stating, "by you endorsed, and for which you are liable, has been this day protested for non-payment, at the request of" the plaintiffs, is sufficient.

A statement that the note has been "protested for non-payment" and notice, is, by necessary implication, an assertion of right by the holder, founded on his having complied with the requisitions of law, against the endorser. 

COUNSEL:
Richard I. Bowie, for the appellants:

In the case of Sasscer vs. Whitely & Stone, 10 Md. 102, the note was dated Baltimore, and the maker and endorser were residents of the State, but non-residents of the city,  [**7]  and had no place of business there, yet a demand at certain public places, as the Exchange, &c., and notice put in the post-office at Baltimore, addressed to the endorser at Baltimore, were held sufficient, although there was no evidence of custom or usage, as in this case. In the case of Ricketts & Whittington, vs. Pendleton, 14 Md. 328, the court said:--"The note was drawn by Wood & Co., who were, at the time of making it, and continued to be, nonresidents of the State of Maryland. It was dated Baltimore, and the presumption is, in the absence of proof to the contrary, it was payable there. 10 Md. 103. When the makers of a note do not reside in the State, and have no place of business within the State, no demand upon them is necessary. Story on Prom. Notes, sec. 236. 3 Kent's Com., 96." It is proper to say that the above decisions of the Court of Appeals were not published when the present case was tried below, but some of the elementary principles were referred to. The evidence in this case shows that the notes were made and dated at Washington; that the drawer, Lee, did not reside in the city of Washington or District of Columbia, and had no place of business there; that [**8]  inquiry was made for him of various persons, and at a bank or banks, and not being able to ascertain his residence, or find any one to honor the same, the notes were protested, and regular notices of the demand and non-payment duly given, by mail, to the endorser, directed to him at Georgetown, his place of residence. It was further proved, there existed in Washington, with certain banks, a usage or custom to make the demand in the mode adopted in this case, when the drawers of notes were non-residents, and had no place of business there.

Alex. Kilgour and A. B. Hagner, for the appellee:

1st. There is nothing in the record to show that the appellant has been injured by the rulings of the court below. The verdict was a general one, upon all the counts in the declaration, and was in favor of the plaintiffs who appeal. There was no proof of the partnership of Selden, Withers & Co., or that the defendant was administratrix of George C. Washington, or that he was dead, and there being no dispute in regard to the third note, the jury may well have relied upon this absence of proof, and given their verdict accordingly.

2nd. There was no sufficient presentment of the notes and [**9]  demand upon the maker. Four days of grace are allowed in the District of Columbia, and neither of these notes was properly presented, three days of grace, only, having been allowed in each case. 6 H. & J., 179, Bank of Columbia vs. Magruder. 9 Wheat., 581, Renner vs. Bank of Columbia. 1 Pet., 25, Bank of Washington vs. Triplett, et al. 2 Md. 240, Merchants Mutual Ins. Co. vs. Wilson. But, independently of this objection, the demand in this case was not sufficient. It is proved in the case that Lee, the maker, did not reside in the District of Columbia, and had no place of business there, at the time these notes were drawn, and that all the parties knew that he lived in Frederick county, Maryland, out of the District of Columbia. Now, in such a case as that, it was necessary that the notes should have been presented to, and a demand made upon, the maker. If the maker had removed out of the State subsequently to the making of the notes, the holder is dispensed from the necessity of making other efforts to make presentment. Story on Prom. Notes, secs. 236, 264. Story on Bills, sec. 352. 3 Kent, 96. In such a case only, or where diligent inquiry has been made, and the residence of [**10]  the maker cannot be found, is there an excuse for non-presentment. In the case of Ricketts vs. Pendleton, 14 Md. 330, the law is stated too broadly--much more broadly than the cases cited warrant. The only case cited by Story, in the section referred to by the court, is 10 Martin, 643, Hepburn vs. Toledano, and from the statement of facts in that case, it only appears that the note was dated at New Orleans, and that the drawer resided in Kentucky at the time of protest. It is clear, from the opinion of the court in that case, that the maker had removed to Kentucky after the making of the note. See, also, Story on Prom. Notes, sec. 264, (Last Ed.) This is the only authority, if it be one, for the position that presentment and demand, in such a case as this, is dispensed with. The decisions to the contrary are numerous. In Gilmore vs. Spies, 1 Barb., 158, a note, specifying no place of payment, was made and endorsed in the city of New York, where it bore date, by persons residing in Mexico at the time, and so resided until the note became due, and this fact was known to the holder, and it was held that the circumstance that the makers so resided in a foreign country, afforded no [**11]  excuse to the payee or holder for not following them with the note, and demanding payment there, so far as the endorser is concerned. The same thing was decided in 3 Denio, 145, Taylor vs. Snyder, and in Spies vs. Gilmore, on appeal in 1 Comstock, 321. See, also, 1 Gray, 175, Porter vs. Judson. 9 Wheat., 598, M'Gruder vs. Bank of Washington. 2 Rob. Pr., 176. The usage or custom attempted to be proved in this case, was clearly insufficient. 6 Md. 37, Foley & Woodside vs. Mason & Son.

3rd. The notice was not sufficient, inasmuch as it does not state presentment and demand of payment. 1 Md. 59, Graham vs. Sangston. 3 Md. 251, Nailor vs. Bowie. 6 Md. 5, Maning, Stimpson & Co., vs. Hays. 11 Md. 148, Armstrong vs. Thruston. 1 Comstock, 325, Spies vs. Gilmore. Story on Prom. Notes, secs. 350, 352, 354.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*385]  LE GRAND, C. J., delivered the opinion of this court.
This action is brought to recover the amounts of three promissory notes; two of them drawn by John Lee, in favor of George C. Washington, the intestate of the appellee, and by him endorsed, and the other by [**12]  George C. Washington, in favor of John Lee, and by the latter endorsed. In regard to this last note, the record presents no question for the decision of this court.
The points in controversy relate to the sufficiency of the demand of payment of the notes drawn by Lee, and to that 

 [*386]  of the notice of non-payment given to the endorser, Washington.
The notes were dated Washington, and not, on their face, made payable at any particular place; and, in the case of Sasscer vs. Whitely & Stone, 10 Md. 98, it was held, that where a note is dated at a particular place, and no other place is designated as that of negotiation and payment, the presumption is, that the maker resides where the note is dated, and that he contemplates payment at that place; but this presumption may be rebutted, and if the drawer resides elsewhere within the State, when the note falls due, and this be known to the holder, demand must be made at the maker's residence, or place of business. But, if the drawer does not reside in the State, and has no place of business within the State, no demand upon him is necessary. Ricketts & Whittington vs. Pendleton, 14 Md. 320, [**13]  and the authorities there cited.
It was given in evidence, by a notary public of Washington, District of Columbia, that when the notes drawn by John Lee severally became due, he, at one of the banks in Washington city, made demand of payment of the note, and received for answer, "no funds here;" and that, on inquiry, he ascertained that Lee had no place of business or residence in Washington, but resided somewhere in Frederick county, Maryland. On the part of the defendant, it was shown that Lee had, for forty years, resided in Frederick county, and at one time was a representative in Congress from Maryland, and at another time of his county in the State Legislature.
Each of the notices of non-payment, sent to the intestate of the appellee, after setting out the date and amount of note, proceeds as follows, "by you endorsed, and for which you are liable, has been this day protested for non-payment, at the request of Selden, Withers & Co."
There is nothing said in the notice of any demand having been made for the payment of the notes. Unless there be something in the facts of the case, this omission to inform the endorser that a demand of payment had been made, would render the [**14]  notice insufficient to bind the endorser. Graham 

 [*387]  vs. Sangston, 1 Md. 59. But we think there is sufficient in the record to show that there was no demand, other than that which was made, necessary, and that, under the circumstances of the case, the notice sent was sufficient. It states that the note had been "protested for non-payment." "A statement of non-payment and notice is, by necessary implication, an assertion of right by the holder, founded on his having complied with the requisitions of law against the endorser." Mills vs. U.S. Bank, 11 Wheat. 431. See 4 Gill, 202. 1 Md. 504.
We are aware that there are decisions in some of the States in conflict with the principles recognized in the cases which we have cited, but we prefer adhering to our own adjudications, as more conducive to the ends of justice, and as furnishing more reliable facilities for the transaction of commercial business.
From what we have said, it follows, we are of opinion, that if the jury believed the evidence, the plaintiffs were entitled to recover, and, as a consequence of this, the granting of the defendant's [**15]  prayers was error.
Judgment reversed and procedendo awarded. 

54 of 196 DOCUMENTS 

RICHARD COLVIN vs. ELISHA WARFORD, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

17 Md. 433; 1861 Md. LEXIS 54 

October 29, 1861, Decided 

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

The bill in this case, filed on the 25th of June 1860, by the appellees against the appellant, alleges that the complainants, as eight out of eleven heirs at law of Rachel Colvin, instituted an ejectment suit in the Superior court of Baltimore city, and obtained a verdict and judgment in their favor for eight-elevenths of the real estate of the said Rachel; that the defendant is in possession of all said real estate, claiming as devisee under a will of said Rachel, which had been admitted to probate, but which was found to be invalid by the verdict and judgment in said ejectment suit, and has been so in possession since the 6th of August 1855, the date of said probate. The bill further alleges that the defendant has received and appropriated to his own use the rents of said estate, not only from the said 6th of August, but for a period before that time, viz., from the 9th of February 1853, while said real estate was in the hands of receives; that said rents and profits during said period amount, after proper allowances, to between $ 50,000 and $ 60,000, for the payment of which, to them, they allege they have no security. They also [**2]  allege that the defendant is heavily indebted, and his property mortgaged, and that he is engaged in business transactions by which he may lose, in addition to the heavy losses he has already met with, and that they have just cause of apprehension that, in the event of an affirmance of the judgment in ejectment, from which the defendant has appealed, or upon other final settlement of the controversy between them and the defendant, they will sustain great loss by his inability to refund the rents received, or which he may hereafter receive. The bill then prays a discovery by the defendant of all the rents and profits since the 9th of February 1853, and that he may bring the same into court, and that a receiver should be appointed to take possession of all said real estate, and to manage the same, and to collect all the rents thereof pending the controversy to the title thereto between them and the defendant. It also prays an injunction against the defendant, prohibiting him from intermeddling in any manner with the said estate, or collecting the rents thereof, and that the tenants may be prohibited from paying any rents to him.

Upon this bill an injunction was granted, and a receiver [**3]  appointed, as prayed.

The answer of the defendant, under oath, among other things, denies that the net rents during the entire period, exceeded $ 5000 per annum, and alleges that the amount received by him from rents of said real estate, cannot exceed $ 35,000, to be reduced by large outlays and payments, which are specially set forth, and for which he claims allowance in any claim for rents and profits against him. He denies that he has met with heavy losses, except from the litigation promoted by the complainants, or that he is engaged in any business which will expose him to pecuniary losses of importance, and he expressly alleges that he has belonging to him, besides and in addition to the real estate devised to him by the said Rachel, property much more than sufficient to pay any liability which can be established against him, and that his entire liability at this time, except for the alleged claim of the complainants, does not exceed $ 100,000, while his property, without including the real estate from the said Rachel Colvin, is fully worth $ 200,000. The answer also sets out at length many other facts and reasons why the injunction should not have been granted, and the [**4]  receiver appointed, all of which need not now be stated, and also denies the jurisdiction of the court over such a case.

Upon the filing of this answer, a motion was made to dissolve the injunction, and rescind the order appointing the receiver. But the court, (KREBS, J.,) on the hearing of this motion, on the 14th of July 1860, overruled the same, and the defendant then appealed from the order granting the injunction and appointing a receiver, and also from the order of the 14th of July 1860, overruling his motion to dissolve the injunction and to rescind the appointment of the receiver.  

DISPOSITION:
Orders reversed and cause remanded.  

HEADNOTES:

On the hearing of a motion to dissolve an injunction, and discharge a receiver, the allegations of the answer, so far as the same are responsive to the allegations of the bill, must be taken as true.  

COUNSEL:
F. W. Brune and Wm. Schley, for the appellant, and G. L. Dulany, for the appellees. The arguments upon either side were confined to the question of the propriety of granting the injunction and appointing the receiver, and the jurisdiction of the court. As this question was not decided by this court, these arguments need not be reported.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*435]  BARTOL, J., delivered the opinion of this court.
It is unnecessary for this court to determine whether,  [**5]  upon the case stated by the bill of complaint, an injunction was properly granted by the circuit court, and a receiver appointed. We are all of opinion that there was error in the subsequent order of the 14th of July 1860, refusing to dissolve the injunction, and continuing the same, and refusing to rescind the order appointing a receiver.
Whatever equity the complainants may have had under their bill, to claim the interposition of the court in their behalf, upon the ground of apprehended danger to their interests, in the event of their ultimate success in the action of ejectment now pending, has been taken away by the answer of the appellant, which, under the rules governing proceedings in chancery, must be taken as true, so far as the same is responsive to the allegations of the bill. See Code, Art. 16, sec. 103. A decree will be signed reversing the orders of the circuit court, dissolving the injunction, and discharging the receiver, and remanding the cause.
Orders reversed and cause remanded. 

55 of 196 DOCUMENTS 

MARY E. SMITH vs. SAMUEL B. WILSON, Admr. ad col. of SAMUEL OWENS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

17 Md. 460; 1861 Md. LEXIS 57 

October 29, 1861, Decided 

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

Replevin, for a negro slave named Milly, brought on the 30th of April 1849, by the appellee against the appellant. Pleas non cepit, property in the defendant, property in a stranger, and actio non accrevit infra tres annos. On the former appeal in this case by the plaintiff, reported in 10 Md. 67, the judgment was reversed and a writ of procedendo ordered. Under this writ a trial was had in Calvert county, where the suit was originally instituted, and the jury were unable to agree upon a verdict. The case was removed, upon suggestion of the defendant, to Anne Arundel county, where the present trial, resulting in a verdict for the plaintiff, was had.

1st Exception. It was agreed that the evidence in the former trial as contained in the procedendo record, including the documentary evidence, may be read to the jury at the present trial as if given to them orally by the several witnesses, therein named, from the witness stand. From this evidence it appears that the plaintiff, to support the issues joined on his part, having proved the granting of letters ad colligendum to him in due form of law, by the orphans court of [**2]  Calvert county, on the 23rd of February 1849, on the estate of Samuel Owens, who died in said county in the year 1815, then proved by Richard Mackall, the register of wills for Calvert county, that he has diligently examined the records of his office, and that from them it nowhere appeared that any letters testamentary, or of administration, were ever granted upon the estate of said Samuel Owens, or other proceeding had in reference thereto, prior to the appointment of the plaintiff, in this case, administrator ad colligendum. The plaintiff then proved that, the negro slave Milly, in controversy in this suit, was owned by the said Samuel Owens at the time of his death. Other evidence was then offered on both sides, the purport of which is sufficiently stated in the opinion of this court upon the former appeal in 10 Md. 73 to 75. The defendant then asked the court to instruct the jury as follows:

1st. That from the evidence in this cause, if believed by the jury, they may presume that letters testamentary or of administration had been granted on the personal estate of the said Samuel Owens, and that the said estate had been settled up, and that the said negro Milly was held [**3]  by the said Mary Owens, as tenant for life under the will of Samuel Owens, and that if they so find then the plaintiff as collector, as aforesaid, is not entitled to recover in this action.

2nd. That from the evidence in this cause, if believed by the jury, they may find that Mary Owens, the widow and legatee of Samuel Owens aforesaid, sold her life-estate in the said negro Milly, and delivered her with the consent of all the legatees in reversion, of the said negro Milly, they being found to be of full age at the time of the consent, or if under age at that time, after arriving at full age, and knowing of such sale, acquiesced therein, and if the jury further find that the said sale was made for the payment of the debts of the said Samuel Owens, and that the said debts have all been paid, then that the plaintiff, as collector of the said Samuel Owens, has no right to recover in this action.

The court (BREWER J.) granted the first prayer and rejected the second, to which rejection of her said second prayer the defendant excepted.

2nd Exception. The plaintiff then on the whole evidence, as contained in the first bill of exceptions, and which is to be considered as part [**4]  of this, and as inserted therein, prayed the court to instruct the jury as follows:

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

2nd. That from all the evidence in the cause, if believed by them, the jury may find that no letters testamentary or of administration, were ever granted on the personal estate of Samuel Owens, by the orphans court of Calvert county, and that no proceedings were ever had in the said orphans court, in reference to the said estate, prior to the appointment of the plaintiff as administrator ad colligendum thereon, and if the jury so find, and shall believe the other evidence in the cause, they should find a verdict for the plaintiff.

3rd. That if, from the evidence, the jury shall believe, that in the sale of negro Milly in 1834, to Abraham Lowe, if the jury shall find such sale, the said Mary Owens did not sell the said negro as executrix or administratrix of Samuel Owens, but only sold the interest she claimed under his will, and [**5]  shall further find that up to the time of granting the letters ad colligendum to the plaintiff, there had been no administration upon the personal estate of the said Samuel Owens, then that such sale conveyed no such title to the said Abraham Lowe, or his assigns, in said negro woman, as under the pleadings and evidence in this case, would be a bar to the plaintiff's right of recovery.

4th. That if from all the facts and evidence in this cause, if believed by them, the jury do not find that Mary Owens took out letters testamentary or of administration upon the personal estate of Samuel Owens, or that any other person administered upon the same, prior to the granting of letters ad colligendum to the plaintiff, and shall believe the other evidence in this cause, that then the plaintiff is entitled to recover, although they should find that, in the year 1834, the said Mary Owens sold and delivered the said negro woman Milly to Abraham Lowe as a slave for life.

The court rejected the first of these prayers and granted the others, to which granting of the plaintiff's second, third and fourth prayers the defendant excepted, and the verdict and judgment being against her, appealed.  [**6]  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The grant of letters of administration by an orphans court cannot be presumed from lapse of time; the grant of such letters is a judicial act and must be proved by the record; before inferior evidence of the contents of such records can be received, their existence and loss must be accounted for, or that mutilation from time or accident has made them illegible.

Administration upon the estate of a deceased party is indispensable to the derivation of title to his personal estate.  

COUNSEL:
A. Randall, for the appellant:

1st. The defendant's second prayer should have been granted:

1st. Because if Mary Owens sold this negro and delivered her with the consent of all the legatees in reversion, for the payment of the debts of the testator, which were all so paid off, then was there such a sale of this negro as concluded all the parties interested, from denying or impeaching the title conveyed by themselves, and it would be a fraud to take all the benefit of this, their own contract, and afterwards deny its validity. 9 Gill, 339, 337, Clarke vs. Marriott. 5 Johns. Ch. Rep., 188, Higinbotham vs. Burnet. 10 G. & J., 323, Hardy vs. Summers. 8 Gill, 247, Alexander vs. Walter. 8 Md. 251, McClellan vs. Kennedy. 7 Gill, 377, Richards vs. Swan. 4 Md. 435, Ridgeley vs. Crandall & Wife. 5 Md. 51, Cushwa vs. Cushwa. 6 Md., Rep., 235, Mayor & C. C. of Balt., vs. Williams. 6 H. & J., 255, Lamborn vs. Watson. 17 Penn. State Rep., 353, McMichael vs. McDermott. 25 Penn. State Rep., 404, Kribbs vs. Dowing. 14 Ark., 79, Phelan vs. Dalson. 30 Verm., 238, Taylor vs. Phillips. 2 Bland, 261, Rail Road vs. Hoye.

2nd. Because if all these parties [**7]  interested could not deny or impeach this title conveyed by themselves, how can they set up this plaintiff, who represents them alone, (all the testator's debts being conceded to have been paid off by this sale,) and through him deny their own act and commit this fraud?

3rd. Because if there were such a sale and delivery, with the consent of all the parties interested, then all things required to make that sale and delivery must be presumed, and if letters testamentary were required to be presumed for that purpose, then the jury had a right to presume that such letters had been granted, and making that presumption the plaintiff had no right to recover. 2 G. & J., 80, Winchester vs. Union Bank. 2 G. & J. (Md.) 79, 86, Allneder vs. Riston. 2 Gill, 145, Ridenour vs. Keller. 6 G. & J., 141, Burke vs Negro Joe. 2 Md. 420, Lark vs. Linstead. 9 Gill, 132, Anderson vs. Garrett.

2nd. The court also erred in granting the three prayers of the plaintiff which were granted.

1st. Because these prayers assume and withdraw from the jury the finding of the facts required to make out the plaintiff's case, viz: that Samuel Owens did die in possession of this negro as a slave for life;  [**8]  that letters ad colligendum had been granted to the plaintiff within three years before the bringing of this suit.

2nd. Because the language of these prayers is ambiguous, and calculated to mislead the jury, and to impress on the minds of the jury the necessity of their finding that these letters of administration were actually granted, and the administration of the estate closed, and to preclude them from presuming from the facts that such letters were granted.

3rd. Because these prayers assume the truth of all the other facts offered in evidence by the defendant, which are not inconsistent with the facts severally enumerated in them, and assume also the inferences that can be drawn legitimately from the facts thus assumed, viz: that this negro was the property of Samuel Owens at the time of his death, was sold by the consent of all interested in her as a slave for life in 1834, to pay the debts of said Owens and those of her owners, and these debts were all paid; that there was a public sale of all the effects of Samuel Owens, except the negroes, in the presence of all the parties entitled to them; that the negroes were distributed among the legatees of Samuel Owens and [**9]  sold by them, this negro among others, as slaves for life. Assuming these facts and inferences the jury were not bound to find a verdict for the plaintiff.

4th. Because the third prayer, after assuming the proof of a will and bill of sale, submits to the jury to decide upon the terms and construction of these two written instruments; whether Mrs. Owens sold under that bill of sale; what title she sold under it as executrix or the interest she claimed under this will; what was that interest; all of which are questions of law for the decision of the court.

5th Because this third prayer submits to the jury to decide that, by the bill of sale of Mrs. Owens to Lowe in 1834, of this negro, she only sold the interest she claimed under her husband's will, of which there was no evidence, and in direct opposition to the terms of the bill of sale, by which she sold these negroes as slaves for life, and warrants them as slaves for life, and in direct opposition to the 5th sec. of the Act of 1817, ch. 112, which forbids the sale of such an interest in a negro by such a bill of sale.

6th. Because if, according to the theory of this third prayer, the jury should find that Mrs. Owens [**10]  did, in this sale, sell only the interest she claimed in this negro under her husband's will, then would such sale convey a title to Lowe, which would be a bar to the plaintiff's right to recover, though there had been no complete administration on the estate of Samuel Owens, actually proved. 1 Roper on Legacies, 231, 57. Toller on Excrs., 309. 2 Wms. on Excrs., 858. 1 Atk., 471, Leaker vs. Burnett. 1 Gill, 428, Gardner & Hughes vs. Simmes. 6 G. & J., 183, Evans vs. Iglehart.

7th. Because the fourth prayer instructs the jury that the plaintiff is entitled to recover, if they do not find that letters of administration, &c., were taken out upon the estate prior to the granting of letters ad col., &c., although they should find that Mrs. Owens sold and delivered this negro to Lowe in 1834, as a slave for life; whereas if she so sold this negro it was a valid sale, and all the essentials of such sale are to be presumed, and if taking out of letters were required, then that these were to be presumed to have taken place.

Oliver Miller and A. B. Hagner, for the appellee:

1st. The main question, which underlies the whole case, is that embraced in the granting of the defendant's [**11]  first and the plaintiff's second prayer. If there was, in fact, no administration upon the estate of Samuel Owens, and no proceedings in the orphans court for the settlement of the same prior to the grant of letters ad colligendum to the appellee, and the jury were authorized from the evidence so to find, no title to this negro could pass to legatees, distributees, or any one else, no matter whether the debts of the estate have all been paid or not, and no matter in what capacity the widow may have acted, or professed to act, in relation to the sale of said negro. The grant of letters testamentary, or of administration upon the estate of Samuel Owens, was indispensable to the transfer of title to any and every portion of his personal estate. 8 G. & J., 226, Alexander vs. Stewart. 4 H. & J., 393, Fishwick vs. Sewell. 7 Gill, 84, Gibbons vs. Riley.

2nd. By the granting of these two prayers, the one declaring that from all the evidence the jury may presume the grant of letters on his estate, and the other declaring that they may find that no letters ever were granted prior to the grant to the plaintiff, the whole question was fairly submitted to the jury. The defendant had the benefit [**12]  of all the law she was entitled to, for on the former appeal this court decided, upon the same evidence, that it did not authorize the instruction that the jury ought or were bound to presume the grant of letters. 10 Md. 75. Not only so, but by the granting of her first and the rejection of the plaintiff's first prayer, her case was placed before the jury in a more favorable position than she was entitled to have it, and the defendant's first prayer should have been granted. No case can be found of the presumption of the grant of letters testamentary or of administration. It is an official act, and must be proved by the record, and if that is lost or mutilated, secondary evidence of its contents must be shown. Best on Presumptions, 110, 111. 1 Greenlf's Ev., sec. 20. 11 How., 346, 360, Weatherhead vs. Baskerville. Deeds inter partes may, under certain circumstances, be presumed, but not official appointments to private agencies.

3rd. There was no error in the refusal to grant the defendant's second prayer, because there is no evidence in the cause from which the jury could find, or sufficient in law to authorize them to find, that the widow sold her life-estate in this negro,  [**13]  and delivered her with the consent of all the legatees in reversion, or, if under age at the time of sale, that they acquiesced therein, knowing thereof after arriving at full age. On the contrary, the evidence is clear and uncontradicted, that the Hollingsheads, the grand-children, were minors at the time, removed to Baltimore in 1823, and never knew of or acquiesced in any such sale. Again, there is no sufficient evidence that the sale was the sale of a life-estate. On the contrary, the mortgage to Hance, and the bill of sale to Lowe, very clearly show that the negroes therein mentioned were conveyed, or attempted to be, absolutely as slaves for life.

4th. Whether the sale was of a life-estate or absolutely as a slave for life, no title passed thereby to Lowe, or his assigns, as against the administrator of Samuel Owens. If no administration upon his personal estate had been taken out prior to the grant of letters to the plaintiff, limitations could in no wise bar the plaintiff's right of recovery, the possession of Lowe having commenced after the death of Samuel Owens. There was, therefore, no error in the refusal to grant the defendant's second prayer, and in the granting [**14]  of the plaintiff's third and fourth prayers. 4 H. & J., 428, 429, Fishwick vs. Sewell. 7 H. & J., 17, Haslett vs. Glenn.

5th. The defendant's second prayer is also erroneous in submitting a question of law to the jury, viz., what constituted acquiescence in the sale. The jury may find the facts, but it was for the court to say whether these facts amounted to acquiescence or not. 1 H. & G., 204, Oliver vs. Gray. 1 H. & J., 477, Patton vs. Wilmot. 6 G. & J., 291, Steam Nav. Co. vs. Hungerford. 11 G. & J., 472, Ragan vs. Gaither.

6th. This second prayer of the defendant is also erroneous for another reason. By the Act of 1817, ch. 112, sec. 3, no sale of any slave, in which the seller is entitled for a term of years, or a limited time, is valid to transfer any title to such slave, unless the same be in writing, under the hands and seal of the seller and purchaser, and in which the interest of the seller shall be specified. This sale does not profess to have been made in conformity with this Act, and therefore passed no title to this negro.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*468]  LE GRAND, C. J., delivered the [**15]  opinion of this court.
This case has been heretofore before this court, on the same state of pleadings and evidence as shown by the present record. See 10 Md. 67.
In the rulings of the court below we discover nothing of which the appellant can justly complain; on the contrary, we think the court allowed her more than she was entitled to, by granting her first prayer, which authorized the jury to presume the grant of letters of administration. The fact of administration on the estate of Samuel Owens, is indispensable to the defence of the appellant; and we are not aware of a single case, nor has any been referred to by counsel, in which the grant of letters has been allowed to be presumed from the lapse of time. The granting of letters of administration by the orphans court, is a judicial act, and, like all such acts, must be proven by the record. The rule on this subject is 

 [*469]  very clearly stated by the Supreme Court of the United States, in the case of Weatherhead's lessee vs.  Baskerville, et al., 11 How. 329. In that case the effort was to allow the jury to infer a partition of lands from the evidence, without the production of the [**16]  record, showing the partition. What was said there is equally applicable to the attempt made in the present instance. "By the law of Tennessee," said the court, "such a partition is a judicial act, and becomes a record. It can only be proved as such records may be, and when it is alleged to have been lost or destroyed, its contents can only be reached by proofs of a certain and fixed kind, well known in the law. In the proper sense of the term presumed, the records of courts are never so. The existence of an ancient record of another kind may sometimes be established by presumptive evidence. But that is not done without very probable proof that it once existed, and until its loss is satisfactorily accounted for. The rule in respect to judicial records is, that before inferior evidence can be received of their contents, their existence and loss must be clearly accounted for. It must be shown that there was such a record, that it has been lost or destroyed, or is otherwise incapable of being produced; or that its mutilation from time or accident has made it illegible. In this last, though, not without the production of the original in the condition in which it may be. The inferior [**17]  evidence to establish the existence of a judicial record, must be something officially connected with it, such as the journals of the court, or some other entry, though short of the judgment or record, which shows that it has been judicially made. The burning of an office, and of its records, is no proof that a particular record had ever existed. It only lays the foundation for the inferior evidence."
In the case now before the court, there is no pretence that the record has been lost or mutilated; and the proof shows that the records of the Orphans court of Calvert county contain no allusion whatever to the fact of letters having been granted on the estate of Samuel Owens. This is a possessory action, and depends entirely upon the title, which can only be transmitted through the instrumentality of letters of administration. 

 [*470]  It is not an action in which the equitable considerations urged by counsel--if they be shown to exist in point of fact--can avail to the defendant; they can be invoked, if at all, only in another tribunal.
Entertaining these views of the case, it follows that the court did not err to the injury of defendant in its action on the prayers, and the judgment [**18]  must therefore be affirmed.
Judgment affirmed. 

56 of 196 DOCUMENTS 

BENJAMIN F. STARR vs. AARON B. YOURTEE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

17 Md. 341; 1861 Md. LEXIS 45 

October 10, 1861, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit court for Washington county.

Action, brought on the 22nd of June 1858, by the appellant, as endorsee, against the appellee, as endorser, of a promissory note for $ 2152.26, purporting to be drawn by Howard Paceley, in favor of William C. Kirkhart, or order, dated the 22nd of April 1857, at twelve months, payable at the Frederick County Bank, and purporting to be endorsed by said Kirkhart and the defendant. The defendant pleaded that he did not endorse as alleged, and the defence relied on by him at the trial was forgery.

Exception:--The evidence is sufficiently stated in the opinion of this court. The plaintiff submitted five prayers, of which the first and second, submitting to the jury to find from the evidence that the defendant's endorsement was in his own handwriting, or that he authorised the maker or some other person to put his name thereon, were conceded by the defendant. The other prayers are, in substance, as follows:

3rd. That if the jury shall believe from the evidence in the cause, that the defendant did not endorse the note sued on in his own handwriting, but that said endorsement was made by the maker, or any other person, without [**2]  the knowledge or consent of the defendant, and, so endorsed, was delivered to the witness Johnson, for value, and that afterwards, and before it became due, Johnson transferred and delivered it to the plaintiff, but that before this transfer and delivery, the defendant became acquainted with the fact of his name having been so used as endorser, and acknowledged, recognized or sanctioned it, or treated it as his own, by which said Johnson was lulled into security, or was induced to rely and act upon it as the defendant's own endorsement, then such conduct on the part of the defendant was an adoption of the said endorsement by him, and he is now bound by it and estopped from denying it as his endorsement.

4th. That although the jury may believe from all the evidence before them, that the defendant did not, in fact, endorse or sign his name on the back of said note, but that his name was endorsed thereon without his assent or authority by Paceley, the maker, yet if they believe and find that after such making and endorsement, and after the note had been negotiated, and was in the hands of a bona fide holder thereof for value, and before its maturity, and before it was transferred [**3]  to the plaintiff, the defendant became and was made acquainted with the fact of such endorsement and use of his name on said note, and that the same was in the hands of a bona fide holder thereof, as aforesaid, and that he did not object to such endorsement or make any complaint thereof, and did not and would not declare such use of his name as a forgery, but acquiesced in such endorsement, and treated said note and the holder thereof as if it had been duly endorsed by him, and thereby induced or caused the holder to believe said endorsement of his name was genuine, or made on due authority, and that said holder afterwards, and before its maturity, transferred said note to the plaintiff, then such acquiescence and conduct of the defendant amount to a ratification and adoption of the said endorsement, and is equally binding as if he had endorsed said note by his own hand.

5th. That if the jury find that the defendant did not, in fact, endorse said note before the negotiation thereof, but that his name was endorsed thereon by Paceley, the maker, without authority of the defendant, and that the note was afterwards negotiated and passed by Paceley into the hands of a party as holder,  [**4]  for value, and while in the hands of such holder, and before its maturity, the defendant became and was made acquainted with the fact of his endorsement of his name on said note by said Paceley, and did not thereupon object to or complain of the use of his name as aforesaid, by said Paceley, but afterwards saw said Paceley in regard to such use of his name, and upon the assurance of said Paceley that the said note would be provided for and taken up at maturity, the defendant consented to let said note and endorsement thereof stand, and that said endorsement might appear and pass as the act of the defendant, and was so held out by the defendant to the holder of said note, and that afterwards, and before said note became due, the said holder transferred it to the plaintiff, then by the acts and conduct of the defendant he has adopted said endorsement of the said note as his own.

The court (PERRY, J.) rejected these prayers, and to this ruling the plaintiff excepted, and the verdict and judgment being against him appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A promissory note, with the defendant's name endorsed thereon, was, on the day of its date, delivered to a party for value, who received it in full faith, without inquiry as to the genuineness of the endorsement, and afterwards, and before its maturity, but without endorsement, passed it to the plaintiff for value, without communicating to him any suspicion as to the genuineness of the defendant's endorsement, or any knowledge of conversations which he and the defendant had had in regard to the note. HELD:

That the defendant was not estopped from setting up the defence of forgery by any thing he may have said to the party from whom the plaintiff received the note, because the plaintiff received it wholly uninfluenced by any thing the defendant had said in regard to the note.

Admissions of a party are strong evidence against him when invoked in behalf of one whose conduct was influenced by them, but they are of no avail to the advantage of an entire stranger, and the party making them may, as against a stranger, show that they were founded in mistake.  

COUNSEL:
D. Weisel and R. H. Alvey, for the appellant:

Though the name of the appellee may not have been placed on the note by his own hand,  [**5]  and may have been originally a forgery, yet he has by his subsequent acquiescence and conduct adopted the endorsement, and became a party to the note, and he is, under the facts stated in the prayers, estopped to deny his signature. He has done so 1st, by his conduct towards the holder, adopting the endorsement whilst the note was in his hands; and 2nd, by making the forger his agent and adopting his act.

In Price vs. Neal, 3 Burr., 1354, it was held that the acceptor of a forged bill who paid the amount thereof to an endorsee, who received the bill innocently, bona fide and for value, could not recover the money back from such endorsee after he had discovered it was a forgery, and the same doctrine was affirmed in Smith vs. Mercer, 6 Taunt., 76; in 5 Taunt., 488, Jones vs. Ryde; in 3 Barn. & Cress., 428, Wilkinson vs. Johnson, and in 15 Mees. & Wels. 486, Lambert vs. Heath. These cases go on the ground of want of due caution, diligence and good faith, on the part of the parties who had the best means of ascertaining the forgery, and who, by their acts, gave credit to the bills and induced innocent parties to take them. In Barber vs. Gingell, 3 Esp., 60, it was held that the fact [**6]  that the defendant had paid other bills forged by the same party, is an answer to the defence of forgery, Lord Kenyon saying, that by such acts he had adopted the acceptance, and made himself thereby liable to the payment of it. In Leach vs. Buchanan, 4 Esp., 226, a party on a bill was asked by the plaintiff if the acceptance was in his handwriting, and he answered that it was and would be duly paid, and it was held that this concluded him from setting up the defence of forgery. And in the case of the Salem Bank vs. Gloucester Bank, 17 Mass., 26 to 30, Chief Justice Parker reviews all the cases with great ability, and decides that a party may, by acknowledging, recognizing and adopting a spurious signature, make himself liable therefor, and that the various acts and declarations which go to constitute adoption or ratification, are evidence of a promise. In Crout vs. De Wolf, 1 Rhode Island Rep., 393, it was decided that, if a person whose signature is forged treats the forged notes as valid, and thereby leads the community to believe that the forger has authority to draw notes in his name, he will be bound to pay similar notes purchased by one who is deceived by his conduct, and that [**7]  where the person whose signature is forged, promises the forger to pay the note, this amounts to a ratification of the signature, and binds him. Similar implication of authority from the endorser to the forger to use his name, was sanctioned in Weed vs. Carpenter, 4 Wend., 219, see, also, 5 Phillip's Ev., 13. In such cases the forger becomes the agent of the party whose name is forged, and acquiescence in or approbation of the agent's conduct binds the principal. 12 Johns., 300, Cairnes, et al., vs. Bleecker. 6 Adol. & Ellis, 469, Pickard vs. Sears. One may become a party to a note or bill not only by his own immediate act, but also by that of his agent, and this authority may be by parol, by letter, by verbal directions, or may even be implied from certain relations proved to exist between the actual maker of the note, and him for whom he undertakes to act, and it may also be inferred from the subsequent assent or ratification of the party who is charged by the writing. Chitty on Bills, 30, 31. 11 Mass., 98, Long vs. Colburn. 1 Kent, 785 to 788, (7th Ed.) Paley's Agency, ch. 3, sec. 2, part 1. In the case of Fitzpatrick vs. School Commissioners, 7 Humph., 224, it was decided that [**8]  where a party, whose name was forged to a note as security thereto, and he subsequently takes a deed of trust on property to secure him against liability, the acceptance of such deed amounts to a ratification of the forgery. And in Byers vs. McClanahan, 6 G. & J., 250, it was held, that the question of adoption was a fact to be collected from circumstances, and a subsequent acknowledgment of the signature, as his handwriting, to a party making the inquiry, without any intimation that he did not consider himself bound by the bond, is sufficient proof of such adoption. From these principles and authorities, we insist, that the law of the plaintiff's prayers is correct, and that they should have been granted.

A. K. Syester and Wm. T. Hamilton, for the appellee:

The defence raised by the prayers and the evidence in the cause, is that of an estoppel in pais. Estoppels are rigidly construed, for they tend to close the door to legal investigation and equitable results, and they cannot be extended beyond the reason on which they are founded. Admissions are easily proven, and where there is a zealous witness all qualifications or explanations are soon forgotten, or purposely lost [**9]  in the more striking and available words. To create an estoppel in pais, it must be brought within the reason of the rule, and the general rule is, that "where one, by his words or conduct, wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter, a different state of things as existing at the time." Now this doctrine does not apply to this case, because the appellant was not induced to any line of conduct by the acts or admissions of the appellee, such admissions or declarations having been made to a stranger to this suit and never communicated to the appellant. An estoppel will not be carried further than is necessary to protect a party from being injured by his reliance on acts or declarations of the opposite party. To give acts or declarations the character of an estoppel, it must appear that they have influenced the conduct of the party who attempts to set up or enforce the estoppel. These principles are clearly laid down in 2 Smith's Lead. Cases, 642, 643, 644, where all the decisions and authorities are collected and [**10]  commented on in the able note of Hare & Wallace, and they have also been fully recognized by our own Court of Appeals in the cases of Alexander vs. Walter, 8 Gill, 250, and Lancaster vs. Baltzell, 7 G. & J., 468, a case in principle precisely like the present. Now there is no evidence that the appellant was influenced to take the note by any thing said or done by the appellee. Johnson got the note after it was endorsed; he took it without making any inquiry about it, and before its maturity transferred it to the appellant, without his endorsement, and never told the appellant of any suspicion he had about it, or any of the conversations he had with the appellee respecting it, nor did he tell him that the maker had before absconded for forging, although he knew it, and was all the while engaged in trying to get the appellee into a legal obligation to pay it. The appellee's name was as well a forgery, when the note passed to the appellant, as when it was held by Johnson. The appellant was not induced to take it by any representation made to him by the appellee or Johnson. The appellant did not know the appellee, and never spoke to him, or any one for him, in reference to the note. He [**11]  did not take the note relying upon any thing said or reported to have been said by the appellee, nor did he afterwards continue to hold it as good from any representation made to him by the appellee. It is impossible, it seems to us, to say that the doctrine of estoppel in pais is applicable to such a case.

But if the prayers are held not to announce the law of estoppel, then they simply declare that certain declarations and admissions amount in law to an acquiescence, ratification or adoption by the appellee, of the acts of the maker of the note, in endorsing his name originally, without any authority. But no case can be found where such conclusions, in law, have been drawn from any relation other than that of principal and agent. As between strangers such conclusions are unknown.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*347]  LE GRAND, C. J., delivered the opinion of this court.
This was an action brought by the appellant, as endorsee, 

 [*348]  against the appellee, as endorser of a promissory note, made by Howard Paceley, payable to William C. Kirkhart, endorsed by the names of William C. Kirkhart and Aaron B.  [**12]  Yourtee, the appellee. The note was regularly protested, and the parties duly notified.
The defence was, that the name of the appellee had been forged in the endorsement of the note.
The plaintiff offered five prayers, the first two were conceded, and the others rejected.
The facts of the case, so far as developed by the record, and necessary to be considered in connection with the propositions of law embraced in the prayers, may be thus stated: It appears that a certain William Johnson agreed to do work on a mill for Howard Paceley, for which he was to be paid, according to the terms of the contract, cash, but by a subsequent arrangement, he agreed to accept and did accept, in lieu thereof, the note which is the subject of controversy in this suit. The note, according to the testimony, was delivered to Johnson on the day on which it bears date, having the endorsement of both Kirkhart and the appellee, Yourtee, on it at the time. There is no question as to the genuineness of the signature of the maker, nor of that of the endorsement by the payee, Kirkhart. It is conceded that the endorsement in the name of Yourtee is a forgery. The right to recover as against Yourtee, is rested [**13]  entirely upon the ground that his conduct in regard to the note, whilst it was in the possession of Johnson, was such as to make him responsible to an innocent holder for value. The solution of this question of course depends wholly upon the evidence, and especially upon the declarations of Yourtee, in regard to the note. It may be here remarked, that the note was passed to the present holder of it, the plaintiff, without any endorsement on the part of Johnson.
Two witnesses testify as to conversations held with the defendant, touching the note, the genuineness of the endorsement in his name, and his responsibility because of such endorsement. The witness, Bateman, states that sometime in January 1858, he accompanied Johnson on a visit to the defendant, 

 [*349]  and that during the conversation which then took place, "Johnson handed to the witness the note sued on in this case, which he said was the same note which the witness then read; he then turned it over and read the name of William C. Kirkhart endorsed on it, and something was said about it; he then read Aaron B. Yourtee's name, and asked Mr. Yourtee whether it was his name, and he said it was his name; he neither said nor [**14]  intimated that it was not his." Witness further says that during the same conversation, "he read the name of Aaron B. Yourtee, and asked him (the defendant) whether it was his name, and he said it was his name; thinks the note was not handed to Yourtee, but he saw it. In this conversation Johnson spoke to Yourtee about taking the amount in payments, if he would make it safe to him, and Yourtee replied, it was kind in him. Witness had no suspicion about the signature being genuine, as he knew nothing about it." The witness, Johnson, after detailing how he became possessed of the note, and under what circumstances he endeavored to get rid of it, proceeds to say, that "he saw Mr. Yourtee some months after he got the note, meeting him on horse-back. He showed him the note and his name on it, and at first Mr. Yourtee said he did not recollect when he signed it. Witness then required him to say distinctly whether it was his signature or not, because if it were not his, he would have a legal investigation about it. Mr. Yourtee said, in reply to this, 'I won't say it is not mine,' and added that he would see Paceley about it. He told Mr. Yourtee he wanted to use it, and if he agreed to renew [**15]  the note, he would deduct from it a small amount which Paceley claimed, and which he was willing, in that event, to allow-- about twenty dollars. He declined giving a new note without seeing Paceley. The witness met the defendant afterwards, near his house, and before Paceley left Washington county, when the defendant told witness he was satisfied the note would be met at maturity; that he had talked with Paceley about it, and Paceley said he need have no fears, that he had made arrangements with Mr. Ross, in Baltimore, to meet it. Witness then asked defendant if he, defendant, was in 

 [*350]  the habit of endorsing for Paceley? He replied he was not; that this was the first time he had endorsed for him, and it should be the last for him or any body else." On cross-examination, he says, that "the note was his; he sold it to the plaintiff for sixteen pair of mill-burrs. *** When he delivered the note to the plaintiff, he informed him that the defendant, Yourtee, was good, and also what Paceley had said about it. *** Witness never had any doubt about Mr. Yourtee's signature, as Mr. Yourtee told him it was his; *** he never told witness that his name was a forgery, but in the [**16]  conclusion of the first conversation he could not say it was not his."
From this synopsis of the testimony, and it contains all which is pertinent to the inquiry before the court, it is plain that Johnson originally received the note in full faith, without inquiry as to the genuineness of the endorsement of the defendant, and that he passed it away to the holder, the the plaintiff, without communicating to him any of his suspicions, if any he had, as to its not having been endorsed by the defendant, and also without communicating to the plaintiff any knowledge of the conversations which had taken place between the witness and the defendant in regard to the note.
There is, undoubtedly, sufficient in the evidence to have authorized the plaintiff to have gone before the jury as to the fact of the genuineness of the endorsement of the defendant, and this, by the granting of his first prayer, he was permitted to do. But there is now no such question before us on the prayers; besides, it was expressly conceded, in the argument, that the name of the defendant, on the note, was a forgery.
The only question, then, for our determination is: Do the statements of the defendant, as testified [**17]  to by the witnesses, Bateman and Johnson, make him responsible to the plaintiff on the note?
It is clear, on the testimony, that the plaintiff received the note wholly uninfluenced by anything which the defendant had said or done in regard to it; and it is equally obvious that 

 [*351]  Johnson originally obtained possession of it without any such knowledge.
If the defendant be denied the privilege of setting up the forgery as a defence, it must be upon the ground of estoppel; an estoppel in pais.
The true rule is this, that whilst the admissions of a party are strong evidence against him, when invoked on behalf of a party whose conduct was influenced by them, they are of no avail to the advantage of an entire stranger to them, and the party making them, as against a stranger, may show that they were founded in mistake. In accordance with this principle, the plaintiff cannot maintain this action; he was in no degree influenced or damnified by any thing which the defendant said or did in regard to the note; his action was wholly independent of that of the defendant. In principle, this case is the same as that of Lancaster vs. Baltzell, 7 G. & J. 468. [**18]  That was an action of the endorsers against the maker of a promissory note, and the defence was, that the endorsement of the name of the payee was a forgery. It appeared that after the note came into the possession of the endorsees, the maker was called upon, who examined the endorsement and said it was right. The court say, in regard to this state of case, that "the only question, then, in this case, is, whether, if after the endorsements had been made, the defendant, on the note being presented to him by the counsel of the plaintiffs, examined the endorsements and said it was right, that makes any difference? And we think it does not. By saying so, he gave no credit to the note; and did not thereby induce the plaintiffs to take it." In the same opinion, the court elsewhere say, "if one is to suffer, the loss should fall on him who is most in fault, or most negligent."
Entertaining these views in regard to the case, we are of opinion the court correctly rejected the third, fourth and fifth prayers of the plaintiff.
Judgment affirmed. 

57 of 196 DOCUMENTS 

GEORGE SHAFER, and ELMIRA his Wife, vs. DANIEL G. MUMMA.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

17 Md. 331; 1861 Md. LEXIS 43 

October 9, 1861, Decided 

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

Action of trespass and false imprisonment, brought on the 3rd of November 1858, by the appellant, Elmira, whilst a feme sole, against the appellee. The defendant pleaded that he did not commit the wrongs alleged, and then several pleas of justification under and by virtue of authority conferred upon him as Mayor of Hagerstown, in which he sets forth in full the several Acts of Assembly and ordinances under which he acted as Mayor, as aforesaid, all of which are sufficiently stated in the opinion of this court. The plaintiffs joined issue upon the first plea, and replied to the others, on which replication issue was joined by the defendant.

Exception:--A statement of facts was agreed upon between the parties, which is sufficiently stated in the opinion of this court. After all the testimony had been given, the plaintiffs submitted a series of prayers, asking the court to instruct the jury that the defendant's several pleas of justification were not sufficient in law, and afforded him no protection; that the defendant had no judicial authority to take cognizance of pretended offences against said corporation, and that being [**2]  a lewd woman, without having committed some overt act, is not punishable. These prayers, the court (PERRY, J.) refused to grant, and to this ruling the plaintiffs excepted, and the verdict and judgment being against them appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The Mayor of Hagerstown has, under the charter and ordinances of that city, authority to try and fine disorderly persons and lewd woman, found within its corporate limits, and the exercise of such authority is but the exertion of the police power, as contradistinguished from the regular judiciary powers, and is, therefore, no infraction of that part of the Constitution of the State which appertains to the administration of the judicial power, strictly as such.  

COUNSEL:
D. H. Wiles and R. H. Alvey, for the appellants:

The principal question presented in this case is, had the appellee authority, by virtue of his office as Mayor of Hagerstown, to act in a judicial capacity, impose fines and punishments for any supposed violation of law? We contend that the Constitution of the State conferred no such power upon him, nor was he elected to his office at the time and by the people of any district, pursuant to any Act of Assembly passed for the purpose of carrying into effect that portion of the Constitution, which provides for the election and qualification of all the judicial officers known to that instrument. Art. 4, sec. 1, of the Constitution says: "The judicial power of this State shall be vested in a Court of Appeals, in circuit courts, in such courts for the city of Baltimore as may be hereafter prescribed, and in justices of the peace." Sec. 19 of the same Article says: "The Legislature,  [**3]  at its first session after the adoption of the Constitution, shall fix the number of justices of the peace and constables for each ward in the city of Baltimore, and for each election district in the several counties, who shall be elected by the legal and qualified voters thereof, respectively, at the next general election for delegates thereafter." Art. 3, sec. 5, says: "The first election for delegates shall take place on the first Wednesday of November, eighteen hundred and fifty one, and the election, &c., shall be held every two years thereafter." And Art. 4, sec. 29, provides for the officers elect to be commissioned by the governor. Municipal corporations are public, being part of the State government; their charters are at all times subject to modification by a convention to adopt a new Constitution or the Legislature, (15 Md. 376, Baltimore Police cases,) and, therefore, if the Act of 1847, ch. 198, set out by the appellee in his pleas, ever had any virtue it was repealed by the adoption of the present Constitution. By that instrument the judicial power of the State is conferred upon certain and specified officers, and the Legislature cannot empower others not named in [**4]  the Constitution, to act in a judicial capacity and impose fines and punishments. The delegation of judicial power under the Constitution is exclusive in its nature. The Legislature has no power to exercise or authorise the exercise of judicial power; it cannot grant judicial powers. 1 G. & J., 472, Crane vs. Meginnis. 8 Gill, 145, Fiery vs. Miller. 1 Wheat., 304, Martin vs. Hunter's lessee. 17 Johns., 4, United States vs. Lathrop. 1 J. J. Marshall, 205, Frame vs. Trebble. 7 Munroe, 649, Jarman vs. Patterson. 14 Illinois, 420, Rockford vs. Maynard.

A. K. Syester, for the appellee:

The ordinances and by-laws of a municipal corporation are mere police regulations, for the order, peace and morals of a particular community, and form no part of the criminal jurisprudence of the State. The exercise of the "judicial power" of the State is invoked in criminal cases, arising under the general criminal justice of the State, and where "its peace, government and dignity" is involved, and is not challenged by the infractions of mere police regulations of municipal corporations, nor does any tribunal exercising the "judicial power of the State," hold itself either bound to take notice [**5]  of such violations, as such, or called on to suspend, or arrest its own action, when invoked, by a violation of the general criminal justice of the State, because such violation carried with it the infraction of a by-law of a municipal corporation, which, as such, has already been made the subject of fine or other punishment, under such by-law. The mayor in this case did not presume to take cognizance of any offence against the general criminal justice of the State, or any thing touching its peace, government and dignity, as such; but acting ministerially in enforcing the by-laws or police regulations of his corporation, he trenched upon no office committed to the "judicial power" of the State, assumed none of its obligations, and cannot, therefore, be regarded as having acted in a "judicial capacity," unless the form, and not the substance of things, shall be regarded as establishing their character. The principle sought to be enforced by the appellants, as drawn from sec. 1, Art. 4, of the Constitution, not only prostrates a large mass of police regulations of the State, involving in their enforcement the exercise of functions quasi judicial, and exclusively committed to officers [**6]  and persons other than those enumerated in that section of the Constitution, but its application in the form contended for, attacks and overthrows the "legislative power" of municipal corporations, because the same Constitution would seem, by an irresistible interpretation, to confine the "legislative power" of the State to the Senate and House of Delegates. It is insisted, therefore, that the Legislature had, and still have, the power to authorise the municipal corporation of Hagerstown to pass such by-laws and ordinances as those involved in this case, and to impose fines for their violation, and to say how these fines shall be enforced. And this position is fully sustained by the authorities. Wilcock on Corp., 95, in 14 Law Lib., 53. 15 Md. 376, Balt. Police cases. 14 Ala., 400, Mayor & Alderman of Mobile vs. Allaire. 1 Wend., 261, Rogers vs. Jones.

D. Weisel, also argued for the appellee, but chiefly on other points, the arguments upon which on both sides is omitted, inasmuch as the decision of this court renders a notice of such arguments unnecessary.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*334]  LE GRAND,  [**7]  C. J., delivered the opinion of this court.
This is an action of trespass and false imprisonment, instituted by the wife of George Shafer, whilst a feme sole, against the appellee.
To the declaration the defendant pleaded specially, in substance alleging, that at the time of the alleged trespass, he was mayor of Hagerstown, duly elected and qualified, and that the appellant, Elmira, was brought before him and proceeded against under an ordinance of the mayor and council of Hagerstown, passed the 26th day of June 1858, the first section of which provides that the mayor, on information, shall "cause to be brought before him all vagrant, loose and disorderly persons, lewd women, keepers of bawdy houses, and persons having no visible means of livelihood, who may be found within the corporate limits of the town, and if found guilty, to fine such person not exceeding $ 20."

 [*335]  The pleas set out in full the Acts of Assembly and ordinances under which the defendant, as mayor of Hagerstown, justifies the trespass and imprisonment complained of.
By the 4th section of the Act of 1823, ch. 155, entitled, an Act "to alter and change the name of Elizabethtown, in Washington county,  [**8]  to Hagerstown, and to incorporate the same," the moderator and commissioners of Hagerstown are authorized and empowered to provide by ordinance "for taking up, fining, or committing to the work-house in Hagerstown, all vagrant, loose and disorderly persons, lewd women, keepers of bawdy houses," &c.; and by the 1st section of the Act of 1847, ch. 198, it is provided, that the mayor and council of Hagerstown shall have "all the powers and immunities heretofore granted to the moderator and commissioners of said town."
A statement of facts was agreed upon between the parties. From this it appears that the plaintiffs admit, that at the time of the alleged trespass, the defendant was acting as mayor of Hagerstown, having been duly elected and qualified; that the appellant, Elmira, was brought before him, charged with being a lewd woman, found within the limits of Hagerstown, and that, after hearing of witnesses, she was adjudged by him to be such, and fined accordingly. It is also admitted, on the part of the plaintiffs, "that the said Elmira was a lewd woman and public prostitute, but well behaved on the streets of said town, and never known to disturb any person upon said streets, [**9]  or at any other place."
It thus appears that, under the statute law, the municipal authorities of Hagerstown had the right to pass the ordinance under which Elmira was arrested, &c., and also that it is an undisputed fact in the case, that at the time of the grievances complained of, she was "a lewd woman and public prostitute." These concessions would seem sufficient to answer conclusively the claim of the plaintiffs, and to constitute a full and legal justification for the conduct of the defendant in the premises. But it is said, on behalf of the plaintiffs, that since the adoption of the present State Constitution, the mayor 

 [*336]  of Hagerstown could not try and fine under the ordinance, because the exercise of such power is but the exertion of the judicial power, which, by the Constitution, is confided to certain specified classes of persons, and that the mayor of Hagerstown is not included in the enumeration.
This argument would be entitled to great weight, if we thought the power exercised by the defendant was, in the sense of the Constitution, a part of the judicial power. But we entertain no such opinion. We regard it as but a part of the police power, as contradistinguished [**10]  from the regular judiciary powers of the State. From time immemorial, a distinction has been observed between the two, both in England and this country. It would be next to, if not quite impossible, for a large city like Baltimore to preserve order within its limits, preserve the streets free from interruption, indeed to do most of the thousand things necessary to be done, to carry on its various and indispensable operations, if in every case it were a necessary preliminary that the offender should be regularly prosecuted by presentment, indictment, and trial. It has always been understood that, under the police power, persons disturbing the public peace, persons guilty of a nuisance, or obstructing the public highways, and the like offences, may be summarily arrested and fined, without any infraction of that part of the Constitution which apportions the administration of the judicial power, strictly as such. We regard the power conferred on the corporation of Hagerstown, to summarily punish persons of the description the appellant, Elmira, is admitted to have been, as falling directly within the definition of a police regulation. She was punished for an offence against the decency [**11]  and morals of Hagerstown, and not against those of the State; she offended within the "corporate limits," and for such offence she was made to answer. This did not wipe out all responsibility for the offence to the dignity and sovereignty of the State.
Considering the case stated to be one which shows, that under no circumstances there can be any recovery in this action, it is unnecessary to examine the prayers, for it is evident 

 [*337]  that if the facts admitted amount to a justification on the part of the defendant, that any prayer which contradicts that proposition, must be erroneous.
Judgment affirmed. 

58 of 196 DOCUMENTS 

STATE OF MARYLAND vs. A. LINGAN JARRETT and SPRIGG HARWOOD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

17 Md. 309; 1861 Md. LEXIS 42 

October 8, 1861, Decided 

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

Informing, Thomas S. Alexander, solicitor for the State of Maryland, on this behalf appointed by the governor of Maryland, shows that Dennis Claude, of the city of Annapolis, is comptroller of the State of Maryland, having been duly appointed and commissioned by the governor, to supply a vacancy in said office, occasioned by the resignation of William H. Purnell, late comptroller, and that said Claude has bonded and taken the oaths of office prescribed by law, as by the certificate of appointment filed with this information will more certainly appear, and that from the appointment and qualification of said Claude as comptroller as aforesaid, that is to say, from the 8th day of May 1861, to the present time, the said Claude has been and now is in possession of the said office, actually occupying the chambers in the record office building, which were appropriated to the use of the comptroller, and which have ever since the completion of said building been so used, and possessing and using all the books of accounts and other documents and muniments appertaining to said office, including the seal or stamp belonging [**2]  thereto, and during all the said term has been exercising the powers and duties belonging to said office until his disturbance therein, as hereinafter stated.

And further informing, the said solicitor shows that the said Claude, as comptroller as aforesaid, is entrusted with the general superintendence of the fiscal affairs of the State; with the superintendence and enforcement of the collection of all taxes and revenues; with the adjustment of all public accounts; with the granting of all warrants for payment of moneys out of the treasury; and with the countersigning of all evidences of State debt, without which, it is declared by the Constitution of this State, that such evidences shall not be valid. And that it is requisite to the proper transaction of the fiscal affairs of the State, and essential to the maintenance of the public credit, that the said Claude should be protected in the exercise of the functions appropriate to his said office, until his term of office shall have determined by law, and until his successor, duly appointed and qualified in that behalf, shall have been inducted into said office, and entered upon the discharge of the duties thereof.

But now [**3]  the said solicitor further informs and shows, that on the 23rd of July, in the year aforesaid, Sprigg Harwood, treasurer of the State, addressed to the said Claude a letter, of which a copy is herewith exhibited, and the said Claude also received from the president of the Farmers Bank of Maryland, in which bank the moneys of the State are deposited, a letter, of which a copy is also filed herewith, and that on the 29th of July, in the year aforesaid, the said Harwood, treasurer as aforesaid, refused to pay a warrant drawn by the said Claude as comptroller, on the said treasurer, in favor of one Thomas J. Wilson, for the sum of $ 143, money justly due and owing from the State to the said Wilson, the said Harwood alleging as excuse for the non-payment of said money, that he did not recognize the authority of said Claude as comptroller, to issue warrants on the treasury, and that one A. Lingan Jarrett, of Harford county, is the true and lawful comptroller of the State, as by the deposition of said Wilson, herewith filed, will appear, and it is prayed by said informant that said exhibits, and all others which may be filed herewith, may be taken as parts of this information; so that it [**4]  is apparent that the said Jarrett pretends to be the comptroller of the State, and claims to exercise all the powers and authorities incident to said office, and that the said Harwood, as treasurer as aforesaid, aids and abets him in the said pretences; and that the said Harwood will disburse the moneys of the State, and will receive moneys into the treasury, on the warrants of the said Jarrett, as comptroller, and that he will not recognize the validity of any warrant which may be issued by the said Claude, as comptroller, either for payment of moneys into or out of the treasury; and thereby the fiscal interests of the State are placed in imminent hazard, since it will be impossible for any one advisedly to adjust the account of any debtor to the State, or ascertain who is creditor of the State, or to exercise the duties of comptroller, in reference to the countersigning of evidences of debt of the State, without the aid of the books of accounts and other written muniments appertaining to the office of comptroller, which are in the actual possession of the said Claude as comptroller, and which came into his possession by virtue of his appointment and qualification as comptroller as [**5]  aforesaid.

And the said intormant further suggests and insists, that even if the said Jarrett was, of right, the comptroller of the State, (which is denied,) he ought not to be permitted to exercise the functions of said office, nor to disturb the said Claude in the exercise thereof, until the said Jarrett shall have obtained actual possession of said office, and of the books of account, and other muniments thereof, and shall be in a condition to exercise the duties thereof advisedly, and with due regard to the safety of the interests of the State; and that so long as the said Claude is permitted to remain in the actual possession and enjoyment of the said office, with its books of accounts and other muniments thereof, the said Harwood, as treasurer, ought not to be permitted to repudiate the authority of the said Claude as comptroller as aforesaid. And the said informant further informs, that the said Wilson has filed his petition on the law side of the circuit court for Anne Arundel county, praying for a writ of mandamus to the said Harwood, as treasurer, to compel him to pay to said Wilson the sum of money therein mentioned, and that thereupon a rule has been passed, requiring [**6]  the said Harwood to show cause wherefore a writ of mandamus ought not to issue as prayed, as by a copy of said petition and rule, herewith filed, will appear; and the said informant further suggests, that on said proceeding issue will be joined on the conflicting titles of said Claude and Jarrett, and that until the said question of title shall have been adjudged in said proceeding, or in some other proceeding to be instituted by the said Jarrett against the said Claude, the exercise by the said Claude of the rights and functions of said office of comptroller ought to be recognised by the said Harwood as valid acts, and done by rightful authority.

To the end, therefore, that the said Harwood and Jarrett may answer the premises, and that the said Jarrett may be restrained and enjoined from exercising any of the powers attached or incident to the office of comptroller, until his title to said office shall have been adjudged valid, and he shall have been inducted into the possession of said office by due process of law, and that until the said Jarrett shall have been adjudged to be comptroller, and inducted into said office as aforesaid, the said Harwood, as treasurer, shall be restrained [**7]  and enjoined from obeying the warrants or recognizing other acts done by the said Jarrett under color of his pretended title to said office, and from refusing obedience to the warrants of said Claude as comptroller, as aforesaid, and that the State may be further relieved as equity and right may require:

It is prayed that a writ of injunction may be issued to the said Jarrett and Harwood, strictly enjoining and restraining the said Jarrett from exercising any of the powers and duties attached or incident to the office of comptroller, until the further order of this court, and also enjoining and restraining the said Harwood from recognizing as valid or obeying any warrants or other acts done by the said Jarrett under color of title to the said office, and from refusing to obey the warrants issued and other acts done by the said Claude as comptroller, as aforesaid, until the further order of this court, and also the writ of subpoena to the said Jarrett and Harwood, commanding them to be and appear in this court to answer the premises, and obey such decree as may be passed thereon.

This information was filed in the court below on the 14th of August 1861, and an order was passed [**8]  that the prayer for the injunction stand for hearing on a day fixed, provided a copy of the information and order be served on the defendants, and before the time limited the defendants appeared and filed their answers.

Jarrett, in his answer, says, that it is not true and he positively denies that the said Claude is comptroller, and he also denies that at the time when said informer pretends said Claude was appointed to said office by the governor, there was any vacancy in said office; on the contrary, this respondent avers, that he is the comptroller of the State of Maryland, duly elected and qualified, and in possession of said office, and in the legitimate and full exercise of the duties thereof. That at the general election, held on the 2nd of November 1859, respondent was duly elected comptroller, and accepted said office, but the judges of election for the city of Baltimore, made false and fraudulent return, by which it falsely appeared that William H. Purnell was elected instead of respondent. That this respondent thereupon protested to the governor against his issuing a commission to said Purnell, and gave notice to said Purnell that as soon as the Legislature convened [**9]  he would contest his election as comptroller, on the ground that the election in the city of Baltimore, and the return thereof, was fraudulent and void; and that at the session of the Legislature, next after said election, he contested the same and brought his claim to said office before the House of Delegates, which was the only tribunal authorised by the laws of Maryland to adjudicate and settle controversies of that kind, and the said House of Delegates, after a hearing of this respondent and said Purnell, and a full investigation of all the facts, determined and declared and adjudged, that this respondent, at the said election, was duly elected comptroller of the State, for a term of years which has not yet expired, as will appear by resolution No. 6 of said House of Delegates, passed on the 10th of March 1860, a copy of which is herewith filed as part of this answer; that respondent thereupon claimed said office, and is advised that by the judgment of said House of Delegates, he then and there became entitled to the same. That respondent thereupon went before the governor, as soon as he conveniently could, and tendered to him a bond, executed by respondent, with ample security,  [**10]  in the form and penalty prescribed by law, for the faithful performance of the duties of said office, and offered to take the oath of office prescribed by the Constitution and laws of the State; that the governor then and there approved of the security in said bond as entirely sufficient, but for some reason unknown to respondent, refused to accept the same or administer to respondent the oath of office, and respondent thereupon, before and in the presence of the governor, took and subscribed the oath of office prescribed by the Constitution and laws, which was duly administered to him by a justice of the peace, duly commissioned and qualified, as will appear by certified copies of said bond and oath herewith filed.

But this respondent avers, that because the governor refused to accept said bond and administer the oath, he was unable, at that time, to obtain possession and exercise the duties of said office, although, as he avers, he then and ever since has claimed to be the comptroller, and has used due diligence to assert his right and perform the duties of the office. And respondent further says that afterwards, on the 12th of June 1861, the Legislature passed a law authorising [**11]  any judge of the Court of Appeals to administer to him the oath of office and approve his bond as comptroller, and in pursuance of this Act, respondent, on the 9th of July 1861, took and subscribed before the Hon. James L. Bartol, one of the judges of the Court of Appeals, the oath of office prescribed by the Constitution and laws of this State, and said judge at the same time took and approved respondent's bond as comptroller, as will appear by a certified copy thereof, herewith filed as part of his answer, and he also herewith files, as part of his answer, a certified copy of the oath taken by him, as aforesaid, both of which were duly recorded.

And respondent avers that immediately or very soon after he had given bond and taken the oath of office, as last aforesaid, he entered upon the performance of the duties of his said office, and has ever since continued in the same, and was duly recognized by the treasurer and by the Legislature of the State, and was, in fact, and still is, the only legal comptroller of the State, and that neither the said Claude nor any other person, has power or authority to issue any warrant or perform any other act or duty as comptroller. And he positively [**12]  denies that his performance of the duties of said office has occasioned or will occasion, any loss, injury or hazard to the State of Maryland or to her interests.

Further answering, respondent denies that said Claude has possession of the said office of comptroller, or has had, since this respondent took the oath of office as aforesaid, or has possession of the muniments of title. That it is true said Claude has possession of the room which was used for the accommodation of the comptroller, and of books and papers belonging to the office, but this respondent has opened a new set of books, and has procured a stamp, and has access to the accounts, (of which there are duplicates,) and has ample accommodation for the performance of his duties in the old comptroller's office in the State House, and if any detriment should by possibility occur, by reason of said Claude's wrongful detention of said books and papers, this respondent denies that he is in any manner responsible.

Further answering, this respondent says, that he has understood that said Claude, pretending to act as comptroller, has drawn a warrant on said Harwood as treasurer, for the payment of a sum of money as stated [**13]  in said information, but he has no personal knowledge of the fact; and he has been informed that said Wilson filed his petition for a writ of mandamus, as stated, which case is still pending. And this respondent is advised that said Claude's pretended claim to said office, which is now held by this respondent, is a case proper to be tried in a court of law, where there is a full, complete and speedy remedy for all the pretended grievances set forth in said information. And he denies that this court has any jurisdiction to try said Claude's right to said office, or to restrain either this respondent or said Harwood in the performance of the duties pertaining to their respective offices, or to compel them to recognize the pretended claim of said Claude whereby would ensue great confusion and interruption in the public business, and loss and injury to the State. And having thus answered said information as fully as he is advised it is material, he prays that the same may be dismissed, and that the injunction prayed for may be refused, and if it should be granted that the same may be dissolved.

Harwood, in his answer, says, that but for the respect which is due by him to this court,  [**14]  he would not have deemed it necessary for him to take any notice of said information, for the reason, apparent to the court, that individually and officially he has no interest in the controversy whether Claude or Jarrett is legally comptroller, inaugurated by this proceeding. In the earliest stages of the controversy in relation to this matter between Jarrett and Purnell, this respondent declined to take any step by which the rights of one would be preferred over the other, and left the parties to have their respective rights legally decided, being advised that it was his duty, ad interim, to recognize the authority of Purnell.

But this respondent further states that since the Act of the 25th of June 1861, entitled, "An Act to enable A. Lingan Jarrett, comptroller of Maryland, to enter into bond and qualify," and the Act of August 1861, herewith filed as part of his answer, he has been advised that it is his duty to obey the plain action of the Legislature in reference to this subject, and he has, in accordance with said action of the Legislature, recognized the claims of Jarrett to said office. In fact this respondent has no interest in the matter in controversy, in so far as [**15]  it is confined to the question, whether one or the other of these gentlemen is legally entitled to exercise the functions of said office; but he has a deep interest in the question raised by that part of the information which asks an injunction restraining this respondent from refusing to obey the warrants issued, and other acts done by the said Claude as comptroller, inasmuch as he would not feel himself at liberty to obey any order which might gratify the prayer of the informant in that particular.

Further, this respondent is advised and avers that said Claude is not legally the comptroller, and has not been elected or appointed comptroller in accordance with the Constitution or laws of Maryland, and that Jarrett is the comptroller; that he was elected comptroller at the general election held on the 2nd of November 1859, and has given bond and has qualified in accordance with the Constitution and laws of the State, and is now in the actual discharge of the duties of said office. This respondent further shows that a petition for a mandamus has been filed in the circuit court for Anne Arundel county, in the name of Thomas J. Wilson, to compel respondent, as treasurer, to pay a [**16]  warrant in favor of said Wilson, drawn by said Claude, as comptroller, and thereby to recognize the title of said Claude as comptroller, which petition, with the answer of respondent thereto, and the exhibits, are herewith filed, and he prays that they may be taken as parts of this, his answer. Wherefore this respondent submits to the court that the prayer of the informant ought not to be granted, and if the injunction should be granted, he prays that the same may be dissolved.

The purport of most of the exhibits filed with this information and the answers, are sufficiently stated therein. The Resolution No. 6, of the House of Delegates, passed on the 10th of March 1860, is as follows:

"Resolution declaring the election held in the city of Baltimore, on the 2nd of November last, void, and declaring A. Lingan Jarrett elected comptroller of the State.

"Resolved by the House of Delegates of Maryland, That it appears to this House that there was such tumult, riot, intimidation, fraud and injustice at the election held in the city of Baltimore on the 2nd of November last, in contempt of law, and in violation of the freedom of elections, that the said election, so far as said [**17]  city is concerned, is void, and that A. Lingan Jarrett, having received a majority of two thousand four hundred and ninety-two of the legal votes cast in the State of Maryland, on the said 2nd of November, for the office of comptroller of the treasury of the State of Maryland, be and he is hereby declared elected to said office."

The Act passed at the extra session of the Legislature, on the 21st of June 1861, in reference to the qualification of Jarrett, is as follows:

"An Act to enable A. Lingan Jarrett, comptroller of Maryland, to enter into bond and qualify.

"Whereas the said A. Lingan Jarrett was duly elected comptroller, as ascertained and decided by the House of Delegates, on the tenth day of March, in the year eighteen hundred and sixty, and the governor of the State has refused to recognize said election, and to receive the bond of said A. Lingan Jarrett, as such comptroller, and to administer to him the oath of office: Therefore,

"Section 1. Be it enacted by the General Assembly of Maryland, That any one of the judges of the Court of Appeals be and he is hereby authorized to take and approve the bond of the said Jarrett, and to receive the declaration [**18]  and administer the oath required by the Constitution and laws, and that said Jarrett be authorized to make the declarations and take the oaths before any one of said judges, and the said bond, when so taken and approved, and the declarations and oaths so made, shall be recorded in the office of the clerk of the Court of Appeals, and have the same effect as if done in the manner and mode now prescribed by law.

"Section 2. Be it enacted, That this Act shall take effect from the date of its passage."

The bond of Jarrett, which was taken and approved on the 9th of July 1861, by James L. Bartol, one of the judges of the Court of Appeals, and ordered by him to be recorded, is dated the 14th of March 1860, and is the same bond which had been previously presented by Jarrett to the governor for his approval, and on which the following endorsements appear, the last of them being written in pencil:

"Comptroller. A. L. Jarrett vs. W. H. Purnell. Contest. Papers marked exhibits A. & B.--Resolution and bond, filed March 16th, 1860."

"March 28th, 1860. Having thoroughly investigated this case, I decline to receive and approve bond, and this day return same to A. L. Jarrett, Esqr.  [**19]  " (Signed,) "Thos. H. Hicks."

"This bond is, so far as the responsibility of parties thereto subscribing, entirely sufficient in my opinion" (Signed,) "T. H. H."

The Act of the extra session, passed on the 5th of August 1861, and referred to in, and filed, as an exhibit, with the answer of Harwood, enacts: "That A. L. Jarrett, the comptroller of this State, draw his warrant upon the treasurer of this State, and that the treasurer draw his check upon the said warrant in favor" of a certain named party, for a certain sum therein specified.

The court, (PRICE, J.,) upon information, answers, and exhibits, refused the injunction prayed for, and from this order of refusal the informant appealed.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

In an information on behalf of the State, asking an injunction to restrain a party from exercising the duties of the office of comptroller, the gravamen alleged was imminent hazard to the fiscal affairs of the State. This averment was distinctly and positively denied by the answer, and the whole equity being thus sworn away, it was HELD, that the injunction was properly refused.

This court is bound to take notice of the public statute laws of the State, and if it appears by such statute laws that some of the allegations of a bill are not simply as therein stated, it is the duty of this court to interpret them so as to make them read as if set out in connection with what appears in the public statutes.

Where the subject of a bill is the title to a public office, which depends upon the Constitution and laws of the State, any silence on the part of the pleader in regard to such laws, cannot be allowed to the prejudice of a party whose rights are ascertained by them.

The Constitution provides that the Legislature shall make provision for all cases of contested elections of any of the officers not therein provided for, and under this provision a law was passed that "all contested elections for comptroller shall be decided by the House of Delegates." HELD:

1st. That the decision of the House of Delegates on such a contest, must be taken as final and conclusive, no matter what may have been the reasons which induced such decision.

2nd. That the power thus given the House of Delegates is not a special or limited jurisdiction, nor are its decisions liable to the reasoning applicable to judgments of such tribunals; its jurisdiction is the only entire and absolute one in such cases, and there is no other tribunal which can review it.

In case of a contested election for the office of comptroller, if the party decided by the House of Delegates to be elected, fails to qualify, by giving bond and taking the necessary oath of office, the party holding under the previous election continues in office until the due qualification of his successor.

In case of the resignation of the party so holding over, the governor has the constitutional power to appoint his successor, not, however, necessarily for the full period between the appointment and the next general election, but until the party declared to be entitled to the office shall duly qualify.

In construing a Constitution, it must be taken as a whole, and every part of it, as far as possible, interpreted in reference to the general and prevailing principle.

In reference to the office of comptroller, it was manifestly the purpose of the framers of the Constitution to give to the people the right to select that officer, and if a vacancy occurred, to give the governor power to fill it.

In case of a contested election to that office, the party decided by the House of Delegates to be elected, is placed in the same position as if he had been returned elected by the judges of election, and if, by any defect in the then law, or on the part of his administrators, he is prevented from qualifying, it is competent for the Legislature to pass an enabling Act for that purpose.

Where the party declared elected qualifies after the resignation of the party holding over, and after an appointment by the governor, the appointment of the governor, in such case, is ad interim only, and the appointee is subject to be divested whenever the party declared elected duly qualifies.

The official bond of a party declared to be elected comptroller, was presented to the governor for approval, and was not accepted or approved by him. Afterwards the same bond was presented to, and accepted and approved by, another officer, authorized by law to accept and approve it. HELD:

That this made the bond valid and binding upon the sureties; it was not delivered till approved by the proper officer; a statutory bond is not delivered or binding on the obligors till it is approved.

An injunction is not a matter ex debito justitiae, but rests for the most part in the conscience of the court, and there is no case authorizing an injunction against one having the legal right, and but few where the right is doubtful, except in cases to stay waste, or prevent the destruction of the thing.  

COUNSEL:
Note.--The points, only, of the arguments, as presented in the briefs on either side, are given. The several positions taken were argued at length, and with great ability, by the respective counsel.

Thos. S. Alexander, for the appellant argued:

First. That the danger of loss to which the treasury will be exposed by the exercise of the functions of comptroller by two distinct and opposing persons, embarrassing the collection of the public revenues, complicating [**20]  the public accounts, and exposing the public credit to hazard, entitles the State, upon the general principles of equity, to an injunction to stay that competition until the title to the office can be determined at law. The Constitution, Art. 6, sec. 1, prescribes the duties of the comptroller. He is clothed with the general superintendence of the fiscal affairs of the State, with the duty of superintending and enforcing the collection of all taxes and revenues, of granting all warrants for payment of money out of the treasury, and of countersigning all evidences of State debt. The treasury belonging to the State, and the comptroller and treasurer being agents of the State, the court may interpose on the principle on which it protects a private trust from waste and dilapidation by the trustee. 2 Story's Eq., secs. 905, 906, 907.

Second. As the equity cannot determine the question of title, it will respect the possession of Claude as comptroller, de facto, and will compel Jarrett to establish his title by suing out a mandamus, or abide by the litigation now pending at the suit of Wilson. That Jarrett is not in possession of the office. 1 Term Rep., 399, note, Powel vs. Milbank.  [**21]  5 Md. 423, Marshall vs. Harwood. That Claude as comptroller, de jure or de facto, may exercise all the functions of the office. In every contingency, therefore, the acts of Claude will be valid as well for as against the State, whereas the acts of Jarrett, pretending to be comptroller, de jure, must depend for their validity upon the validity of his title to that office. And overlooking all minor objections, it may be sufficient to say, that the public credit must be imperiled by his acting as comptroller, since, by the Constitution, no certificate of State indebtedness is of any value unless countersigned by the comptroller de jure or de facto.

Third. It is denied that the question of title is in issue in this case, or if in issue that it can be examined at this stage of the cause. But should it be determined otherwise, then the State objects that Jarrett has not shown a title to the office, and relies on the following reasons:

1st. It is conceded that, by the election returns, it is shown that Purnell was elected by a vast majority of the votes cast, and that Jarrett claims under a resolution of the House of Delegates, avowedly by disfranchising one third of the voters [**22]  of Maryland, and awarding the return to the candidate who, in fact, received a small minority of the votes cast. Conceding then, for the purpose of this point, that the House of Delegates has jurisdiction to determine a question of contested election, and that the proceeding in this case was regularly conducted and adjudicated, it is maintained that it is a case of false judgment. Cons., Art. 6, sec. 1. Resolution No. 6, of House of Delegates of 1860.

2nd. That the House of Delegates has not the constitutional right to determine a case of contested election. Declaration of Rights, Art. 6. Cons., Art. 3, sec. 48. Act of 1853, ch. 244.

3rd. That the resolution of the House of Delegates is not, per se, admissible as evidence of what was done in the premises, and that if the entire record is examined into it will be apparent that the whole proceeding was irregularly conducted, and in utter disregard of the plainest rules of law and dictates of justice.

4th. That it is to be assumed that Jarrett had notice of the resolution of the House of Delegates on the day of the passing thereof, and if that resolution is assumed to establish his right he ought to have given bond and [**23]  taken the oaths, and made the declaration required by law, within thirty days from the time of the passage thereof, whereas it is not pretended that he did so within that time. Act of 1852, ch. 172, sec. 5. 20 Johns., 184, Jackson vs. Bodle.

5th. That he did not, at any time, take said oaths, or make said declarations before the governor, as required by law. As to oaths of office, see Acts of 1852, ch. 12, and ch. 172, sec. 3. 9 East., 246, King vs. Courtenay, and note, Rex vs. Ellis. As to bond, see Act of 1852, ch. 12, secs. 2, 5, 6, 8.

6th. That he did not, at any time, give bond approved by the governor, as required by law.

7th. That the Act of the General Assembly of June 1861, was simply inoperative as against the title of Claude, acquired prior to that date. Cons., Art. 6, sec. 1.

8th. That Jarrett has not, at any time, given a valid bond as required by said Act of Assembly: the paper approved by the judge, having been sealed and delivered on the 16th of March 1860, to be approved by the governor, having been rejected by the governor, and having been, without any further delivery thereof, presented to and approved by the said judge. 3 Co., 26, b., Butler [**24]  & Baker's case. 5 Co., 119, b., Whelpdale's case. 20 Barb., 332, Stephens vs. Buffalo Co. 20 Johns., 184, Jackson vs. Bodle. 24 Wend., 280, Crosby vs. Hillyer. 12 Johns., 418, Jackson vs. Phipps. 2 Sneed, 164, Brevard vs. Neely.

Henry W. Archer, Wm. Harwood and Thos. G. Pratt, for the appellees, argued:

1st. That all the equities relied on in the information are denied in the answers. Both the title and possession of Claude are denied, and also the allegation of danger or possible injury, upon which could be founded any pretext for interference by injunction.

2nd. That Jarrett is entitled to the office by decision of the only tribunal competent to decide the right, of which the court must take notice. He is also in possession, and the very ground of complaint against him is, that he is exercising the duties of the office to which, by the decision of the House of Delegates, he is entitled. Resolution No. 6, of 1860. Cons., Art. 3, sec. 48. Code, Art. 35, sec. 52, page 268. Code, Art. 22, sec. 7, page, 122. Act of 5th August 1861, ch. 89. 2 Story's Eq., sec. 1548. He has also given bond and duly qualified. Cons., Art. 6, sec. 1. Code, Art. 68, sec. 2, page 470, and sec.  [**25]  10, page 471. Act of 21st June 1861. Code, Art. 22, sec. 1, page 121. 4 Md. 189, Thomas vs. Owens. Act of 5th August 1861, ch. 89.

3rd. That there is no sufficient case made out for the interference of the court by injunction. The allegations of danger to the interests of the State are not only denied, but are manifestly frivolous.

4th. That the court of chancery has no power to grant the injunction. If all the allegations of the information were true, and Claude was entitled to the office, there was a complete remedy at law, and a court of equity has no jurisdiction. 4 Md. 26, Clayton, et al., vs. Carey et al. 9 Md. 83, Harwood vs. Marshall. 2 Johns. Ch. Rep., 371, Atty. General vs. Utica Ins. Co. 1 Hopkin's Ch. Rep., 125, Deklyn vs. Davis.

5th. That there was no vacancy in the office at the time of the appointment of Claude, and even if there was, the governor had no power to fill the vacancy without the advice and consent of the Senate. Cons., Art. 6, sec. 1, and Art. 2, secs. 11, 12, 14.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*324]  LE GRAND, C. J., delivered the opinion of this court.  [**26]  
This is an appeal from an order of the circuit court for Harford county, refusing an injunction as prayed for in an information filed by Thomas S. Alexander, solicitor for the State of Maryland, appointed by the governor of Maryland. The information, after detailing certain facts in connection with the office of comptroller, sets forth that Dennis Claude was, on the 8th day of May 1861, appointed by the governor comptroller, to fill a vacancy occasioned by the resignation of William H. Purnell, who, up to that time, held the office of comptroller; and that since the said 8th day of May, said Claude has been, and now is, in possession of the said office of comptroller, actually occupying the chambers in the record office building, which were appropriated to the use of the comptroller, and possessing and using all the books of accounts and other documents and muniments appertaining to said office, including the stamp or seal belonging thereto, and that during all the said term has been exercising the powers and duties belonging to the said office, until disturbed therein by A. Lingan Jarrett and Sprigg Harwood, the first claiming to be the comptroller, and the other the treasurer of [**27]  the State, refusing to pay a warrant drawn by said Claude as comptroller, in favor of one Thomas J. Wilson. The information then proceeds to show that the said Harwood is aiding and abetting the said Jarrett in his pretensions, and has declared that he will disburse the moneys of the State on the warrants 

 [*325]  of the said Jarrett, as comptroller, and will receive moneys into the treasury on the warrants of the said Jarrett, and that he will not recognize the validity of any warrant which may be issued by the said Claude, as comptroller, and as a consequence of such conduct, "the fiscal interests of the State are placed in imminent hazard, since it will be impossible for any one advisedly to adjust the account of any debtor to the State, or to ascertain who is creditor of the State," &c. An injunction is asked shall be issued to the said Jarrett and Harwood, strictly enjoining and restraining Jarrett from exercising any of the powers and duties attached or incident to the office of comptroller, until the further order of this court, and also enjoining Harwood from recognizing as valid or obeying any warrants issued or other acts done by the said Jarrett, under color of title [**28]  to the said office of comptroller, and from refusing to obey the warrants issued and other acts done by the said Claude, as comptroller.
The substantial gravamen of the bill is, that the fiscal interests of the State are in imminent hazard, and, on that ground, the interposition of a court of equity is invoked, in the manner prayed for in the bill.
This averment is distinctly and positively denied by the answer of Jarrett, and as there is no other ground on which it is pretended a court of equity would be justified in interposing by injunction, the whole equity of the bill is sworn away by the answer, and therefore--conceding for the sake of the case, but without deciding it, that a court of equity in this State has jurisdiction in a case like the present--the unanimous opinion of this court is, that the order of the circuit court, refusing the injunction, should be affirmed.
In addition to what we have said, it may be proper to add, that in any aspect of the case made by the bill, or any other which might be filed at the instance and on behalf of the same complainant, this court would be compelled to take notice of the public statute law of the State, and if that law advertises [**29]  the court, some of the allegations of the bill are not simply as they are therein stated, then it is its duty to interpret them so as to make them read as if set out in connection 

 [*326]  with what appears in the public statutes; and this being so, the court are notified that the holding of the office of comptroller by Mr. Purnell, was not a holding by him without contest by another claimant of it, or by a general acquiescence in his title to it.
It may be very properly conceded, that if Mr. Purnell were rightfully in office till the 8th day of May 1861, without any other person having a right to divest him of said office, upon qualifying according to law, that his resignation on that day created such a vacancy as, under the Constitution, the governor had the right to fill by appointment, which appointment would continue until the next election, and the qualification of the party elected, and this, we take it, was the case which the framer of the information designed to present to the court; but if it be (as it clearly is) the duty of the court to notice the public laws, any silence on the part of the pleader in regard to them cannot be allowed, to the prejudice of a party whose [**30]  rights are ascertained by them. In other words, the bill must be read in connection with the subject to which it relates, and the subject in the present instance is, a title to a public office which depends upon the Constitution and laws of the State. By the latter, it is made known to the judiciary that A. Lingan Jarrett and Wm. H. Purnell severally claimed the office of comptroller under the election of 1859, and also that their several claims were considered by the House of Delegates, and by it passed on and determined, and also that the Legislature authorized and appointed a mode in and by which A. Lingan Jarrett should bond and qualify as comptroller. These are facts which this court cannot ignore; and in entertaining the case, the question is, what effect have those facts on the case made by the bill and its accompanying exhibits?
By Resolution No. 6, passed the 10th day of March 1860, it was declared, "that A. Lingan Jarrett, having received a majority of two thousand four hundred and ninety-two of the legal votes cast in the State of Maryland, on the said second of November, for the office of comptroller of the treasury of 

 [*327]  the State of Maryland, he is hereby declared [**31]  elected to said office."
This is clear and explicit, and covers the case, if the House of Delegates had the right to pass it. Had it such right? By the 48th section of Article 3rd of the Constitution, it is provided that "the Legislature shall make provision for all cases of contested elections of any of the officers not herein provided for." It is nowhere else in the Constitution pointed out how any contested election for comptroller shall be disposed of; and it follows that the provision is to be made by the Legislature. Such provision was made by Act of 1853, ch. 244, and by the 52nd section of Article 35 of the Code of Public General Laws: that "All contested elections for comptroller and commissioner of the land office, shall be decided by the House of Delegates."
It cannot, we think, be considered an open question at this day, that where the exclusive and sole right to decide upon a question has been confided to any tribunal, and no appeal allowed from its decision in the premises, that such decision must be taken as final and conclusive, no matter what may have been the reasons which induced such decision.
The power given to the House of Delegates, under the Constitution [**32]  and law, is not a special or limited jurisdiction, as urged at the bar, nor liable to the reasoning applicable to the judgments of such tribunals; its jurisdiction is the only, entire and absolute one in cases of contested election for the office of comptroller. There is no other tribunal which can review it.
The Resolution of the House of Delegates decided the election of A. Lingan Jarrett to the office; but, of itself, did not, nor could it, place him in it; it only placed him in a condition, if he chose to do so, to qualify himself to enter upon its duties and enjoy its emoluments. According to the law as it then stood, he had to take the proper oaths before the governor, and obtain his approval of his official bond. Neither of these, it is said, he did, and it is insisted that his failure to do so, continued Mr. Purnell in his office as comptroller, under his election in 1857, until his successor was 

 [*328]  duly qualified. In this view we concur. We hold that Mr. Purnell, until the 8th of May 1861, was lawfully entitled to exercise the powers and perform the functions of the office; and that, on his resignation, the governor had the constitutional power to appoint his [**33]  successor, but not necessarily for the full period intervening between the appointment and next general election; but until the party declared to be entitled to the office should duly qualify. And in this conclusion we are fully justified.
In construing a Constitution, it must be taken as a whole, and every part of it, as far as possible, interpreted in reference to the general and prevailing principle. So far as the comptroller is concerned, it is manifest that it was the purpose of the authors of the Constitution to endow the people with the right to select that officer. They contemplated the possibility of a vacancy in the office, and authorized the governor to fill it, because the general system in relation to the fiscal affairs of the State should not be interrupted. This evidently was the reason for conferring on the governor the power to fill a vacancy: it never could have been their sole purpose to confer on him additional patronage; if that had been the case, they would not have given to the people the right to elect: they meant, by the delegation of the power to the governor, merely to provide against the expense and necessity of another election before the regular term [**34]  of holding elections to fill the vacancy. It seems to us to be inconsistent with the whole sense and purport of the Constitution, to so construe it as to give to the governor the power to defeat and put aside the will of the people, as expressed by them at the polls, under the Constitution and laws: in framing the first section of the 6th Article, they evidently contemplated no such case as the one now before us. They could not have intended to embrace cases of contested election for comptroller, and this, to us, is obvious, if for no other reason, from the fact that they have authorized provision to be made for the decision of such cases. They undoubtedly designed that whenever a decision should be given, that it was to have some effect, and not to be treated as a mere nullity; otherwise, it would be to ascribe 

 [*329]  to them the folly of authorizing and providing for a useless and expensive inquiry. We hold, therefore, that when the House of Delegates decided that A. Lingan Jarrett was elected to the office, he was placed in the same attitude toward it as he would have been had be been returned by the judges of election as having been elected to it; and if, for any defect [**35]  in the then law, or on the part of its administrators, he was prevented from qualifying himself for entering on the duties of the office, it was competent to the Legislature to pass an enabling Act like that of June 21st, last, enabling him to do so.
It was conceded, by the appellant's counsel, in argument, that if Mr. Jarrett had been duly qualified, by taking the oath and filing his bond, during the time Mr. Purnell was holding over, he would be lawfully entitled to the office as against Mr. Purnell. But it was argued that Purnell's resignation, and the appointment of Dr. Claude by the governor, placed Claude in a better position than Purnell occupied. This cannot be the true construction of the Constitution. It rests exclusively upon the construction of the 1st section of the 6th Article, and, if adopted, would lead inevitably to the conclusion that the incumbent of the office of comptroller, at any time after an election, and before the qualification of his successor, duly elected, may, by resigning his office, make it necessary for the governor to fill the vacancy by appointment, and such appointee would be entitled to hold till the next election. This is not the true construction [**36]  of the Constitution. In such case--as in the case before us--the appointment of the governor is ad interim only; and such appointee is subject to be divested whenever the person duly elected shall qualify, according to law.
The only remaining inquiry is, whether Jarrett has been duly qualified, under the Act of June 1861?
It is conceded that the oath of office has been taken, as required by the Constitution and laws, but it is objected that the bond given by him is insufficient, because it had been before tendered to the governor, and not accepted by him, and that he ought to have been required to give another bond. 

 [*330]  It is not pretended that the bond is not in proper form, or that the sureties are insufficient. Nor does it appear that the governor refused to accept it for either of those reasons. It is said, that having been executed originally for the purpose of being presented to the governor for approval, and not being accepted, it could not be binding on the sureties, if afterwards accepted by another officer, authorized by law to accept it.
This argument rests upon the principle that a delivery is necessary to the validity of a bond. But it is clear that, in [**37]  this case, the bond was not delivered till it was approved by the proper officer, on the 9th of July 1861. A statutory bond is not delivered or binding on the obligors till it is approved. 7 Md. 201. In the case of Brown & Cawood, vs. Murdock & Brawner, a question as to the validity of a statutory bond was determined by this court, which, we think, conclusively answers the objection of the appellant's counsel in this case. See 16 Md. 522.
Having shown that Jarrett, in our opinion, has the legal right, and as an injunction is not a matter ex debito justitiae, but resting, for the most part, in the conscience of the court, none such should issue against him. There is no case authorizing an injunction against one having the legal right, and but few where the right is doubtful, except in cases to stay waste, or prevent the destruction of the thing.
The public interest, which is supposed to be involved in this case, is a sufficient reason for having considered at length the question of title, which was fully argued at the bar.
Order affirmed. 

CONCURBY:
TUCK 

CONCUR:

TUCK, J.
I concur in the affirmance of the order refusing the injunction, for the [**38]  reasons stated in the opinion filed by the Chief Justice, in behalf of the court; but I deem it unnecessary, in this case, to express any opinion on the title to the office of comptroller.
Note by the Reporter:--It will be observed that in this case no motion was made to dismiss the appeal, and no question raised or argued on either side as to the right of appeal in such a case, under Art. 5, sec. 25 of the Code, as was done in the case of Steigerwald vs. Winans, et al., ante. 

59 of 196 DOCUMENTS 

THE BALTIMORE UNITED FIRE DEPARTMENT vs. THOMAS CREAMER and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

17 Md. 243; 1861 Md. LEXIS 36 

October 3, 1861, Decided 

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

The bill in this case was filed on the 14th of September 1860, by the appellees against the appellant. The complainants, three in number, aver that they are members of the Baltimore United Fire Department, and in association therewith, being respectively members of the Vigilant and First Baltimore Hose Fire Companies, and two of them delegates therefrom to the Baltimore United Fire Department.

The bill avers the organization and incorporation of said department under the Act of 1833, ch. 187, and states that amongst other objects of said department, as set forth in the Act of incorporation, was one for the creation of a fund to be applicable to the benevolent purpose of affording relief and assistance, comfort and support to the members of fire companies in association with said department, whose health or persons shall have sustained any injury in assisting at a fire, or in performing any duties as firemen, or in giving support and relief to the families of such members as should unfortunately be deprived of life, or rendered incapable or less capable of laboring for their support, by attending to their duties as such firemen.  [**2]  The bill then states that by soliciting donations from private individuals, banking and insurance companies, by means of a ball, &c., a capital was raised amounting in the aggregate to $ 11,168.33, and that from the interest arising thereon, the beneficial features of the department were to be carried out and promoted; that $ 11,000 were invested in five per cent. stock of the city of Baltimore, which stock, under the ordinance of that city, of the 15th of April 1835, is irredeemable and not transferable; that the interest from said investment, in addition to revenue arising from other sources, realized a greater sum than was necessary to carry out the humane and benevolent designs for which the department was created, and, by a supplement to its charter, (Act of 1839, ch. 265,) power was given to invest permanently the nett proceeds arising annually from Baltimore city stock, or any other resources held by said department, and that from time to time the surplus was invested, and that the capital of the department now amounts to $ 17,588.18, composed of various State and city stocks, cash, &c.

The bill then charges, that at a recent meeting of the delegates representing the various [**3]  fire companies composing said department, a resolution was adopted authorizing the treasurer to sell the State and city securities held and owned by the department, and the complainants deny the power of said department to sell or dispose of any of the securities which now constitutes its capital, so long as its charter, supplement, or said ordinance of the city of Baltimore remain in force and unrepealed. They also charge that there are disabled firemen, and families, and widows of deceased firemen, now receiving, and who are entitled to receive, aid and assistance from said department, and that the same constitute a charge upon said fund. The bill also charges that the officers of the department, in virtue of said resolution, are about to sell said securities for the purpose of division amongst the various fire companies, and prays for an injunction to prohibit such sale.

The Acts of 1833, ch. 187, and 1839, ch. 269, and the ordinance of the 15th of April 1835, and all other ordinances of said city, relating to said department, are prayed to be taken as parts of the bill. The resolution impeached by the bill, and filed as an exhibit with it, directs the treasurer of the department [**4]  to sell and dispose of the available stock of the department, and to divide the proceeds, together with the cash in hand, equally among the companies composing the department.

The injunction was issued restraining the department, its officers and agents from selling or disposing of, or changing or altering any stock or securities belonging to the department, or dividing said securities or any money arising therefrom, or any money now in the treasury thereof, of the beneficial fund, among the various fire companies composing said department, or among the members thereof.

The answer of the department admits it possesses capital as alleged in the bill, and states that no part of it was derived from the bounty of the State, nor from the Mayor & City Council of Baltimore. It states that $ 12,000 of its capital is invested in five per cent. city stock, under the ordinance of 15th of April 1835, and alleges that the certificates for that stock, on their face, show that they are irredeemable and not transferable, and the answer denies that the department ever attempted or proposed to sell that stock; that besides this investment, the department held $ 1000 of five per cent. State [**5]  stock, and $ 3955.12 of six per cent. city stock, which it insists are wholly free from the claims of disabled firemen. And as to these investments, the answer insists that, as owner, it had the clear right of selling and disposing of the same, and that as to $ 12,000 invested as aforesaid, although there is no definite allegation in the bill that there is any subsisting charge on the interest accruing therefrom, yet the answer admits there is a charge thereon of $ 60 per annum, in favor of Mrs. Buckley and her children, but that there is no other charge whatever on the principal or interest of said investment, and that there are no persons who can possibly hereafter have any charge thereon, as the several fire companies composing said department have been superseded by the paid Fire Department now existing in the city of Baltimore, under the ordinance of the 10th of December 1858. The answer further insists that the bill is a pragmatic proceeding on the part of the complainants, and that they have no title or interest to maintain the suit, and prays that the injunction may be dissolved.

On hearing of the motion to dissolve, the court (KREBS, J.) delivered the following opinion:  [**6]  

"I am of opinion that the complainants, members of the United Fire Department, may be properly regarded as co-trustees of the fund referred to in these proceedings, and, as such, may come into court and ask its aid, by injunction or otherwise, to prevent its diversion from the purposes of the trust for which it has been invested. Hill on Trustees, 458. 6 Price, 261, In re Chertsey Market. 1 Ves., Jr., 297, Powlet vs. Herbert. 3 Ves., 75, Franco vs. Franco.

"I am further of opinion that the nett proceeds arising from the fund referred to in the proceedings, set apart for the trusts and benevolent purposes specified in the bill of complaint, and which have been permanently invested by the said fire department, in pursuance of the provisions of the Act of Assembly of 1839, ch. 265, are subject to the same trusts, and applicable to the same benevolent purposes, as the said principal fund, and that the said department has no power or right to dispose of them, and distribute the proceeds in the manner in which the said bill alleges it designs to do. For these reasons I must pass an order making the injunction heretofore issued perpetual."

The defendant appealed from the order [**7]  granting the injunction, and also from the order refusing to dissolve the injunction and making the same perpetual.  

DISPOSITION:
Cause remanded for further proceedings.  

HEADNOTES:

By the Act of 1833, ch. 187, the association of delegates chosen by the several fire companies of the city of Baltimore, and their successors, chosen annually, were incorporated by the name of the Baltimore United Fire Department, with power, by subscription, contributions, and other lawful means, to provide and create a fund, and invest the same in such manner as they may deem most safe and productive, the nett proceeds of which shall be applicable to the relief of disabled firemen, members of fire companies in association with said department, and their families. Under this Act $ 12,000 was invested in Baltimore city stock, which, by an ordinance of that city, was made irredeemable and not transferable. By a supplement to the charter, (Act of 1839, ch. 265,) power was given "to invest permanently, from time to time," in city or other securities, "such part of the nett proceeds arising annually from the city stock, or any other resources held by the institution, as may not be required for the relief of disabled firemen." A considerable surplus was so invested, and, in 1860, a resolution was passed by the corporation to sell and dispose of the available stock of the department, and to divide the proceeds, together with the cash on hand, equally among the fire companies composing the department. Upon a bill filed by three persons, two of whom were delegates from, and the other a member of, fire companies in association with said department, for an injunction to restrain execution of this resolution; HELD:

1st. That the complainants had a proper standing in court to file this bill, not only because they may be regarded as co-trustees of the fund, but also because, as corporators and members of fire companies in immediate connection with the said department, they are directly or remotely interested in the permanent investment and preservation of the fund, according to the intent and purpose of the charter and its supplement, and this resolution of the department would be in derogation of their rights.

2nd. That the said corporation has power to sell, transfer or alter the investment of the surplus fund available in its hands beyond the $ 12,000, but not to distribute the same in the manner as proposed by this resolution.

3rd. The said department was created a corporation for specified purposes, which they cannot infringe, whatever may be their altered condition, so long as they are in actual legal existence.

4th. So long as the department and the fire companies in association therewith, retain their chartered rights, the department, as trustees of these funds, must confine their action upon them strictly within the purview of the Act of incorporation, and its supplements; if they desire to effect any division of these funds, they must attain their purpose by some enabling statute. 

COUNSEL:
Wm. Schley, for the appellant:

It is undoubtedly true that a corporation, created for a particular purpose, can be restrained from doing acts which are ultra vires. This may be done, in some cases, by bill in equity, at the instance of a mere stockholder, who has an individual personal right, as being a stockholder, in the funds and property of the corporation; in other instances, by information at the relation of parties interested; and, in other instances, by quo warranto or mandamus.

1. The precise question first to be decided in this case, is, whether the appellees have such an interest in the property of this corporation (proposed to be sold and distributed) as entitles them to ask for an injunction? Now it is very clear that there is an essential difference between the condition of being a mere corporator, and being a shareholder in a corporation, whose capital is divided into shares, the owners of which, as shareholders, would have a vested interest in the capital stock. In the case of this corporation, there [**8]  is no capital stock--no shares--no shareholders. The property of the corporation belongs to the corporation, and the corporators, as such, have no rights of property therein. Cases, therefore, which are based on the theory of vested rights of property in corporators in the capital stock of the corporation, have no possible application to this case.

It is very true that, by the Act of 1833, the corporation is empowered, "by subscription, periodical contribution, or other lawful means, to authorize and provide for the creation of a fund, and the investments of the same," &c., &c. Now it is noticeable that the power is conferred on the convention of delegates--the corporation itself--to establish the fund. If it be considered to be a charity, then the corporation itself is the sole founder of that charity. The Act does not clog the property of the corporation with trusts; it only empowers the corporation to set apart "a fund," (and of the amount of which the corporation must, necessarily, be the sole judge,) and that fund, by the act of the corporation, has been dedicated to the extent of $ 12,000; which investment the corporation has not proposed to disturb, and possibly may not [**9]  have the legal power to disturb, under the peculiar terms of the ordinance referred to in the bill. At all events, it is not embodied in the resolution, as exhibited in the bill, and, therefore, as to that fund, there is no danger of irreparable loss; and even if, as to the other property, there was any ground of complaint on the part of the appellees, surely as to this investment there can be none. And an injunction is never to be issued or continued on the suggestion that it does no harm, and that no one is thereby hurt; but it must stand on the solid ground of necessity, in the administration of preventive justice. Besides this sufficient reason, the complainants do not show that they are disabled firemen, or members of the family of any disabled firemen, or that there is an insufficiency of security for those who have an interest in the provided eleemosynary fund, and that they are under any liability to assessment, to make up any apprehended or possible insufficiency.

Nor have the complainants any interest--any vested proprietary interest--in the other property of the corporation. If the corporation acts, it must, of course, be subject to the rules which apply to all other [**10]  corporations; that is to say, it must act in meetings duly convened upon notice given, agreeably to the by-laws. But when duly assembled, the will of the majority, duly expressed, must govern, unless the act be ultra vires. But even if the sale of such other stocks, for distribution amongst the fire companies, be ultra vires, have these complainants, or any of them, either as firemen or as delegates from fire companies, (and one is merely a fireman and not a delegate,) any such interest as will enable them, or any of them, to pray for an injunction? Whether the select body, the first named delegates from the various fire com panies, could maintain a bill, it is not necessary to enquire; whether the appellant, in its corporate capacity, could maintain such a bill against the officers, or any officer of the corporation about to act upon the resolution, it is equally unnecessary to enquire; nor is it necessary to enquire whether an information would lie, or a mandamus. The actual case under consideration, is a bill in equity, preferred by three persons, who are respectively firemen, and of whom two are delegates; and the question is, have they, as such, a right to maintain this bill?  [**11]  The notion that the appellees are co-trustees with the appellant, is wholly irreconcilable with the actual facts. The appellant is a corporation owner of its property, and the appellees are, two of them, corporators, having no interest in the property of the corporation, no charge upon it, and only entitled to vote in the corporate meetings, and bound, as all other corporators are bound, by the decision of the majority. Even if they could promote, as relators, an information or some other proceeding, it seems to me that they cannot possibly have such an interest as will enable them to sue in their own names, and on the foundation of their own title. If this view be correct, the bill should be dismissed, with costs.

2. But even if the complainants have title to sue, where is the necessity, for the protection of an injunction?

They do not claim in the character of cestui que trusts, even if the corporation can be considered as a trustee. I am not prepared to concede that this relation really exists. As to the $ 12,000, it may be that it is a case of irrevocable dedication; but I do not even concede this. To the extent of actual charges upon it, and in favor of persons prima [**12]  facie entitled to have a charge declared, it may be irrevocable; but ultra any vested right or charge, it is the property of the corporation, and may be validly recalled, saving the rights of all persons having actual charges thereon, or equitably entitled to such charge. The only impediment arises from the terms of the investment--the stock being not merely irredeemable, but not transferable. But for this, with the assent of persons having, legally or equitably, charges thereon, I can see no reason for questioning the power of the corporation, by a formal resolution of the corporation, duly passed, to revoke this dedication. It is not a case of contract, except as to persons who have charges duly acquired. It is, as to all other persons, the property of the corporation, and disposable by the corporation in the same manner as its other property.

And what valid objection can there be to the exercise of the ordinary power of an owner by this corporation, except as to the necessity of a proper saving of acquired rights? Hence, what objection can there be to the disposition of its property, other than the $ 12,000, even by distribution amongst the several fire companies represented [**13]  in the department?

It is said that the funds applied in making these investments accrued from interest on the said investment of $ 12,000. This is not so, in point of fact, nor does the bill so allege. The bill, on this behalf, states that the funds accrued from interest on this investment, and other resources. Even, therefore, if the point were rightly taken, that the interest was irrevocably appropriated for payment of charges in exoneration of the principal fund, it would not affect the question as to the investment of funds derived from other resources. But the interest on the investment belonging to the corporation, notwithstanding the dedication of the fund for payment of charges that might be made thereon, and subject to the satisfaction of charges made, or to be made, was liable to disposition thereof by the corporation, in like manner as its other property. And, when the Act of 1839 was passed, such interest "not required for the relief of disabled firemen," was liberated from the effect of the unrestricted dedication supposed to have been previously made.

In the opinion of the learned judge below, the word "permanently," found in the Act of 1839, ch. 265, was construed [**14]  to mean all the same as if the expression had been, "to invest for the benevolent purposes of affording relief and assistance," &c., as in the Act of 1833, ch. 187, sec. 4. And this construction was adopted, because the ordinance used the word "permanently" in connection with the investment thereby provided for.

But when it is recollected that it might very well be doubted whether the interest, which had accrued from the investment made under the Act, was not impressed with the character and quality of irrevocable dedication to the use of disabled firemen, their families, &c., (even if deemed unnecessary for their relief,) the true meaning of the word permanently, is ascertained. It was intended to be used and understood as an investment to be made, permanently withdrawn and exonerated from the previous dedication. The board of select delegates were invested with authority to act in the premises, and so much of the accrued interest as they should not consider as required for the relief of disabled firemen, was to be invested, together with means derived from other resources, with the consent of the United Fire Department; not temporarily, liable to be recalled for the use of disabled [**15]  firemen, but permanently; that is to say, forever liberated from the antecedently existing dedication, and to be deemed thereafter as parcel of the ordinary property of the corporation. And this construction is made certain by the provision, that what was thus to be invested, so far as the same accrued from interest, was to be so much of said interest as was not required for the relief of disabled firemen. And as the power to invest was conferred on the board of select delegates, to be exercised with the permission of the department, it follows that the judgment of the board of select delegates, acquiesced in by the department, was final and conclusive upon all the world, except those, if any such there were, who had acquired vested rights in said income. It is not alleged that there were then, or are now, any such persons. For these reasons there is no just ground on the part of any one, and certainly not on the part of the appellees, to complain of the proposed sale of this stock, and of the distribution of the proceeds amongst its several fire companies.

And what possible objection can there be to the distribution of any surplus fund, by this corporation, amongst the several [**16]  fire companies? If such distribution would render the fire companies unable to do duty as fire companies, if the corporation, the Baltimore United Fire Department, could not exist or act without the retention of this surplus fund, it might be a case of misappropriation.

But the corporation would equally exist if it had not, and had never had, a single dollar.

As respects the creation of a fund for the relief of disabled firemen, it may be safely asserted that the Act is not mandatory. It conferred the authority, but did not make it an imperative duty, to establish such a fund, much less was the establishment or maintenance of such a fund a condition precedent to the existence of the corporation. Whatever may be the effect of the act of the corporation in making the investment of $ 12,000, under the terms of the ordinance, (and that question is not necessarily nor properly involved in this case,) the uninvested property is untrammelled.

And if, in consideration of services without compensation, rendered for many years, the corporation, by direct vote, should give out to individual firemen, as rewards, specific sums for which it had no actual need, it is clear that they [**17]  may parcel out its surplus means, or any part thereof, amongst the several fire companies, to be disposed of by such respective companies in payment of their liabilities, or in rewards to members, either by special appropriations, or by per capita distribution.

C. J. M. Gwinn, R. C. Barry and Chas. H. Pitts, for the appellees:

1st. The answer admits that two of the complainants are delegates from fire companies, connected with the Baltimore United Fire Department to that association of delegates, existing as a corporation under the style of the Baltimore United Fire Department, by virtue of the Act of 1833, ch. 187. These two delegates are, therefore, in fact and in law, corporators, under the very terms of this Act. Now assuming, for the moment, that the act contemplated by the Baltimore United Fire Department was beyond the scope of their corporate powers, can there be at this day any reasonable doubt as to the right of a corporator to restrain a corporation from so proceeding, by means of a bill filed for that purpose? The decision of Vice Chancellor Bruce in Ward vs. Society of Attornies, 1 Collyer, 381; of Lord Brougham, Chancellor, in Ware vs. Grand Junction Water Works [**18]  Company, 2 Russ. & Mylne, 484; of Cunliff vs. Manchester and Bolton R. R. Co., and Maudsley vs. The same Company, cited in the notes to Ware vs. Grand Junction W. W. Co., are clear upon this point. For, not only will courts of equity interfere, where the public interests, and where the interests of strangers to the corporation are to be defended from injury, but also the powers of the court may be put in motion at the instance of a single shareholder, if he can show that the corporation are employing their statutory powers, funds, &c., for the accomplishment of purposes not within the sphere of their institution. Grant on Corp., 80 Law Lib., 301. For "no body of corporators can be allowed to act inconsistently with the purposes of the corporation, or be allowed to do that which would place their successors in a different position from that in which the institution of the corporation intended them to stand." Grant on Corp., 80 Law Lib., 302, citing Colman vs. Eastern Counties R. W. Co.; see this case in 4 Eng. Railway & Canal Cases, 389. This view of the case, which regards the complainants as corporators, interested in the preservation of the exact limits of the charter, whether their [**19]  interests as corporators be personal or as corporate representatives, is independent of the ground upon which the decision of the Circuit Court was placed in the opinion in this cause. But the court is referred also to that opinion, and to the positions therein taken, and the authorities therein cited, for the further support of the case of the appellees. It is believed by the appellees that the opinions in the case of Gregg vs. Mayor & City Council of Baltimore, 14 Md. 505, 506, are in confirmation of the same doctrine.

2nd. The answer concedes that the appellant had no right to dispose of the $ 12,000 five per cent. city stock, created under the ordinance of April 15th, 1835. But it makes this concession only in deference to the fact, that this stock, by the terms of its creation, was not transferable. The answer asserts that, as to the other property of the fire department, a common law rule prevails, and that the appellant has the right to dispose of these assetts according to its pleasure, except where they are charged, as in the case of Mrs. Buckley, with a certain pension. The appellees certainly do not mean to contest the general common law power, which is incident [**20]  to corporate bodies, to hold or dispose of property, when the charters of such corporate bodies do not, of necessity, forbid the exercise of this ordinary common law power. But the appellees have no difficulty in asserting, that it is a dangerous error to hold that this common law power of disposing of the property of the corporation, at the will of the corporate authority, may be exercised as freely by a corporation as by an individual owner. The appellees say, that where the purposes of a corporation are exactly defined by its charter, there can be no acquisition, and no disposition made of property, which are inconsistent with the legislative will as expressed in the charter; and that the common law right of purchase and sale, possessed by a corporation, is qualified by this paramount principle. Chancellor Bland, in Binney's Case, 2 Bland, 142, presents this view with great clearness of language: "If property be given to a body politic for certain specified and limited purposes, any application of it on an obviously different object is a violation of the law; and, consequently, expenditures, not for corporate purposes, in whatever way they may have been authorised by the body politic,  [**21]  may be enjoined and prohibited." This ruling is but an amplification of the elementary principle laid down by the Supreme Court in the case of Perrine vs. The Chesapeake & Delaware Canal Co., 9 How., 184, and see Grant on Corp., 80 Law Lib., 15. Now for what certain and specified purposes was this corporation, by law, formed and enabled to acquire and hold property? The Act of 1833, ch. 187, sec. 2, says, that it shall have power, by subscription, periodical contribution, and other lawful means, to authorise and provide for the creation of a fund, and the investment of the same from time to time, in such manner as they shall deem most beneficial, safe and productive; the nett proceeds of which fund shall be applicable to the benevolent purposes of affording relief in certain cases to firemen and their families. This provision, in itself, would seem to have been full enough to have constrained the corporation to have applied the remainder of its nett revenue, left in the treasury of the corporation, after the payment of its discretionary benefactions, to the increase of the permanent fund thus dedicated. It was indeed fully mandatory on this point. And the supplemental statute of 1839,  [**22]  ch. 265, which authorised the investment of these surplus proceeds in Baltimore city and other public securities, must be taken to be rather a limitation upon the class of securities to be selected for the fund, than as any new grant of power. When this fund of the corporation was received for the purposes of the charter, and invested as a fund for the purposes of the charter, there was no power in the corporation to deal with it otherwise than as the charter directed. And even if under such a charter as that which we are considering, a power existed to change the investment of any part of this fund, and for that reason to order a sale for the purpose of the new investment, such corporate power of sale must be exercised in a manner consistent with the trusts of the charter. And, therefore, a sale ordered by a corporation, for a purpose inconsistent with its charter, is a sale which a court of equity ought to restrain. For, as the validity of a sale depends upon the consent of the corporate body, and as this consent is properly supposed to rest upon the expressed motive and purpose of the sale, equity will not permit a sale to be perfected which was manifestly resolved upon by the corporation,  [**23]  under a mistaken theory of its powers of appropriating the proceeds of such a sale. It is in this view of the case that the court is asked to consider the fiduciary relation of the fire department, upon which the decision of the circuit court was grounded. The appellees certainly cannot see the force of the argument, based upon the change made in the fire department of Baltimore, by the ordinances of the city introducing a different system. The fire companies, which were represented in the United Fire Department --and the United Fire Department itself--were all corporations, and the laws, limiting their powers, are not in any respect changed or altered by the ordinances of the city of Baltimore. The answer does not allege that the several incorporated fire companies, or the United Fire Department, have ceased to exist, either by judgment on a scire facias, or by such reduction of their several numbers by accident or negligence, as amounts in law to their civil death. On the contrary, the answer asserts in the clearest manner, the vitality of all these corporations, so that we are not left even to consider the proper distribution of this fund, if the several corporations were all dissolved.  [**24]  For, could there be a clearer recognition of the vitality of these corporations, than a resolution, which recognises the United Fire Department as the continuing trustee of one fund, and as the active distributor of another, and which recognises the members of the incorporated and subsisting fire companies as living, active, present recipients of the corporate munificence. These several corporations are not dissolved, as the record shows; and the Baltimore United Fire Department must, therefore, continue to hold its invested funds in trust for the purposes for which these funds were obtained. All that can be said by the operation of the city ordinance regulating a new fire department, is, that it prevents the happening of cases which would be a charge upon the revenue of the corporation, so long as it is in force. But if that ordinance were repealed, the former system would, so far as the Legislature of the State is concerned, at once revive, and the increasing funds of the United Fire Department would be restored to activity.

If these several corporations--if the United Fire Department --desire to abandon their corporate existence, and to give some other destination to the fund,  [**25]  than that which the law has given, they must take the ordinary and legal means of abandoning their charter, or must seek for some enabling statute from the Legislature.  

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

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*257]  GOLDSBOROUGH, J., delivered the opinion of this court.
The appellants were incorporated under the Act of 1833, ch. 187, with power to obtain a fund, by subscription, periodical contribution, or other lawful means, and make investment of the same; the nett proceeds thus entrusted to the corporation, to be applicable to the purposes mentioned in said Act.
Subsequent to their incorporation, and after an investment of $ 12,000, the interest from the investment, and from other sources, created an excess beyond the demands contemplated by the Act of incorporation, and the Act of 1839, ch. 265, was passed, by the first section of which power was granted "to invest permanently, from time to time, in Baltimore city or other public securities, such part of the nett proceeds arising annually from the Baltimore city stock, or any other resources held by said institution, as may not be required for the relief of [**26]  disabled firemen."

 [*258]  The appellants, acting under their interpretation of the Act of 1839, on the 23rd day of October 1860, passed the resolution mentioned in the proceedings in this cause. The appellees, two of them being delegates and forming part of the executive board, and the other a member of one of the fire companies in connection with the United Fire Department, protested against the resolution, but finding their protest unavailing, filed their bill of complaint in the circuit court for Baltimore city, praying an injunction to restrain the appellants, their officers and agents, from carrying into effect the resolution of the board of delegates. The injunction was granted, and upon the coming in of the answer of the appellants, motion was made to dissolve the injunction. The court overruled the motion, and, by its order, made the injunction perpetual. The appellants appealed to this court, not only upon the granting of the injunction, but also from the order refusing to dissolve the same.
We deem it proper, in the first place, to dispose of the question raised by the appellants, that the complainants have no right to interfere with the action of the United Fire Department,  [**27]  in carrying into effect the resolution passed to sell, dispose of, and distribute the funds mentioned in that resolution.
We do not concur in this view, but regard the appellees as having a proper standing in a court of equity, not only for the reasons and under the authorities cited by the learned judge, in his opinion in this case, but also because the appellees, as corporators and members of fire companies in immediate connection with the appellants, are directly or remotely interested in the "permanent investment" and preservation of the fund, according to the intent and purpose of the Act of 1833, ch. 187, and the Act of 1839, ch. 265; and the resolution of the appellants would be in derogation of their rights.
Forasmuch as the appellants, by their resolution, did not design to disturb the investment of the $ 12,000, invested in five per cent. stock of the city of Baltimore, made irredeemable and not transferable, under the provisions of an ordinance 

 [*259]  of the city of Baltimore, but only the amount of other investments and "available" funds in hand, and upon which there was no present demand, we can see no legal restriction upon the right of the appellants to sell,  [**28]  transfer or alter the investment of this surplus fund, available in their hands, beyond the $ 12,000. And to that extent we regard the action of the court below as wrong.
But we approve of the injunction granted, so far as it restrains the appellants from distributing this fund in accordance with the terms of their resolution.
The appellants were created a corporation for specified purposes, which they cannot infringe, whatever may be their altered condition, so long as they are in actual, legal existence. The several fire companies in connection with the appellants, are recognized by their resolution as having full, legal existence, and though it is alleged, in the answer of the appellants, that, owing to the substitution of a paid fire department, constituted by an ordinance of the city of Baltimore, no further demand will be made upon the funds sought to be affected by the aforesaid resolution, yet, so long as the appellants and the fire companies retain their chartered rights, the appellants, as trustees of these funds, must confine their action upon them strictly within the purview of the Act of incorporation, and the supplement thereto. And, under existing circumstances,  [**29]  if they desire to effect any division of them, they must attain their purpose by some enabling statute.
Without affirming or reversing the orders of the circuit court, this cause will be remanded for further proceedings, under the Act of 1832, ch. 302, that the court may amend and modify its orders, in conformity with the views expressed by this court.
Cause remanded for further proceedings. 

60 of 196 DOCUMENTS 

WILLIAM SHIPLEY vs. JOHN H. CAPLES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

17 Md. 179; 1861 Md. LEXIS 30 

April 1, 1861, Decided 

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

The bill in this case, filed on the 28th of June 1859, by the appellee against the appellant, alleges that the complainant is the owner of a market farm about seven miles from the city of Baltimore, and that he and those under whom he claims, from time immemorial, have been accustomed to use a road leading through the lands of the defendant and others, to pass with horses, wagons, carts and servants, to haul produce and other articles to and from Baltimore city, and that this road is, in fact, the only outlet which complainant has whereby to convey his produce to said city; that in July 1858, the defendant closed up this road through his land, by erecting a strong fence across the same, thus entirely preventing the complainant from using the same in any manner; that by this stoppage the complainant is compelled to haul his produce to market by a much longer, circuitous and bad road, by which he is greatly inconvenienced, and subjected to much trouble and loss of time and money, and that the value of his property is greatly deteriorated thereby, and that the road which he is thus compelled to use, passes through [**2]  lands over which he has no right of way, except by the permission of the parties owning the same, and should this permission be at any time refused, he has no possible outlet from his farm, and no means whereby to convey his produce to market; that the defendant has refused to remove this fence, and still continues to obstruct the road, and that complainant, though he might have a remedy at law against the defendant, by an action for damages for this obstruction, yet the same would be attended with great delay, and would involve a multiplicity of suits for the same cause of action, and he is advised he is entitled to relief in a court of equity. The bill then prays for an injunction restraining the defendant from any further continuance of the obstruction to said road.

The court (BREWER, J.) ordered the injunction as prayed, and the defendant, having first filed his answer, appealed from this order.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

A bill alleging a prescriptive right of way over the defendant's land to a public road and market, and that the complainant has no other outlet whereby to convey his produce to Baltimore, for sale, except by a circuitous and inconvenient route over the lands and by the permission of persons who might, at any time, withhold such permission, makes out case sufficient to warrant an injunction restraining the defendant from further obstructing such way.  

COUNSEL:
Thos. B. Shipley and Cornelius McLean, for the appellant:

The bill does not present a case for the interference of a court of equity, although it is alleged that there is no sufficient legal remedy on account of delay and multiplicity of suits. It is not [**3]  alleged the appellant is insolvent. It is alleged the supposed road passes through his land, that the fence had been there for a year, and the injunction requires the appellant, upon the mere affidavit of the complainant, without any evidence of title on his part, to pull it down, and probably expose his crops. If such an injunction could be granted on such a bill, no man's crops would be safe. But it is apparent, in this case, that the complainant has full and complete remedy at law, and, if so, he is not entitled to an injunction. 4 Gill, 34, Hamilton vs. Ely. A road in an agricultural district is not the same thing, and does not present the same case of injury, as a street in a city. 1 Md. 548, White vs. Flannigain. Courts ought to use great caution in the exercise of such a jurisdiction over nuisances, as prevents the enjoyment and improvement of property. 2 Story's Eq., sec. 924, note. At any rate, the injury must be such and appear such as cannot be adequately compensated at law. 2 Story's Eq., sec. 925. In this State every man can have a private road by paying for it, (Code, page 179,) and here, then, is a remedy and the measure of damages. If a man can be required to pull [**4]  down his fence, which he has erected on his own land, upon the say so of his neighbor, that he has a right of way, and without the right of answer before it is done, who is safe? In cases of this sort, the true course of the court is to let in the answer as to what has been done, and if the case justify it, give the injunction as to the future. The object of a preliminary injunction is to preserve every thing in the condition in which the parties are at the time of filing the bill, and not to undo any thing. 2 Bland, 461, Murdock's case. The defendant ought always to be heard, before imputed wrong can be removed, or any thing like retributive justice administered. The injunction was certainly wrong, in so far as it required the appellant to undo what had been done a year before, in the improvement of his own property.

Jas. S. Franklin, for the appellee:

At this stage of the proceedings the sole inquiry is, whether the complainant, upon the face of his bill, has presented such a case as entitled him to the injunction prayed for and granted? In Amelung vs. Seekamp, 9 G. & J., 468, the court intimate that if the averment "that he had no other reasonably convenient outlet for [**5]  his mill," had been made, the bill would have presented a proper case for an injunction. This bill contains the averment that the road obstructed by the defendant is his only outlet to market; and should those by whose bare permission he now has a much longer and more circuitous route, withdraw that permission, he would be absolutely without the means of transporting his produce to market. This obstruction, then, is plainly charged in the bill as not only deteriorating the value of the farm of the complainant, especially as a market farm, but absolutely goes to the destruction of the estate; i. e., it destroys the right of way as charged to have been held and exercised. 1 Md. 545, White vs. Flannigain. It is no answer to the remedy sought by the complainant to say that he can have a private road by paying for it. The court will at once perceive that the provisions of the Code referred to, contemplate an original demand, uncoupled with any pre-existing right, and that compensation for such a right is to be paid to the party through whose land such road is to pass. It is, in fact, compulsory process. This bill shows a case of existing right, and of title by prescription in the complainant [**6]  and others. To apply the Code to such a case, would be to compel the complainant to pay anew for what is already his, and to compensate the defendant for his illegal usurpation as a wrong-doer.  

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

OPINIONBY:
TUCK 

OPINION:

 [*182]  TUCK, J., delivered the opinion of this court.
We are of opinion that this case is fully within the doctrines established in Amelung vs. Seekamp, 9 G. & J. 468, and frequently applied in other cases by this court. There the complainant sought to have removed obstructions from a private road leading to his mills. Here the party claims a prescriptive right of way over the defendant's land, from his own farm to a public road and market. It was objected, in Seekamp's case, that his bill did not show that he had no other reasonably convenient outlet from his mills, and that by the obstruction a valuable portion of his custom would be driven from them. This bill appears to have been prepared to obviate that objection, by stating an immemorial right to the road, and that the complainant had no other outlet whereby to convey his produce to Baltimore, for sale, except by a circuitous [**7]  and inconvenient route over the lands and by permission of persons who might at any time withhold such permission; which, we think, is quite sufficient to show the irreparable mischief complained of.

 [*183]  This can hardly be called a trespass; the act enjoined was committed on the defendant's own land. If the party were put to a different form of action, it is difficult to perceive a clear rule for the measure of damages. It was said, in argument, that the cost of procuring a private road under the law would furnish a standard, but, conceding that principle, if the complainant, as we must assume at this hearing, has a right to the present road, it would be unjust to allow the defendant to place him in a predicament where he might be obliged to take such other as the commissioners, in their discretion, might think proper to locate for his use. That would be, not allowing compensation for the injury complained of, but to change his rights altogether. If he is entitled to the use of this road, the law will not allow another person so to act as to deprive him of it, and compel him to resort to another. Besides, every day's obstruction would be a new ground of action, and to follow [**8]  up his legal remedy by constantly suing, might involve more certain ruin than the loss of the road; to prevent such vexatious proceedings at law, is one of the grounds on which equity is clothed with the jurisdiction which we think has been properly exercised in the present instance.
Order affirmed. 

61 of 196 DOCUMENTS 

MARGARET E. HIGDON and FREDERICK STONE, Admrs. of JOHN F. S. HIGDON, vs. JOSEPH STEWART.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

17 Md. 105; 1861 Md. LEXIS 22 

March 27, 1861, Decided 

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

Assumpsit, brought on the 19th of March 1859, by the appellee against the appellant. Pleas, non assumpsit, payment and limitations. At the trial three exceptions were taken, the first by the plaintiff, and the second and third by the defendants.

1st Exception. The plaintiff proved that he was sheriff of Charles county, and acting as such in the years 1846, 1847, 1848, and that Higdon, the defendants' intestate, was acting as his deputy; that during those years, and up to 1851, inclusive, Higdon, as his deputy aforesaid, had received and collected fees to the amount of $ 2666.76, and then proved, by Campbell, that some three or four weeks before the death of Higdon, which occurred the latter part of July 1858, Higdon sent for witness, and he went to see him; he asked witness to see Mr. Stewart, the plaintiff, and ask him to come down and see him; that he, Higdon, wished to have a settlement with him; that they had never had any settlement of their accounts; that the amount Stewart was to pay him for his services as deputy sheriff, had never been fixed between them, and that he and Stewart could settle their business better than [**2]  any one else, but he thought they were about even. The plaintiff then asked the court to instruct the jury, that if they found these facts to be true, the plaintiff's claim, to the extent they might find the same proved, was not barred by the statute of limitations pleaded in this cause; but the court (CRAIN, J.) refused this prayer, and instructed the jury, that if they found the facts as stated, they must find a verdict for the defendants, upon the plea of limitations, to which refusal and opinion of the court, the plaintiff excepted.

2nd Exception. After the evidence given in the first bill of exceptions, herewith incorporated and made part of this exception, the plaintiff offered in evidence the deposition of E. W. Day, who now resides out of the State. This deposition shows that the witness, in answer to interrogatories on the part of the plaintiff, says: "I knew John F. S. Higdon for thirty years. I never had any conversation with him in reference to any business between himself and Joseph Stewart, but he had with me. I was in company with Mr. Stone; went, on the 19th of July 1858, down to witness an instrument of writing, conveying some property to his daughter; during [**3]  our stay, there was considerable conversation relative to his debts, between Mr. Stone and John F. S. Higdon, and there was an allusion to the state of affairs between Mr. Stewart and himself; sometime afterwards, I was sitting by his side, when Mr. Stone was not in the room, and he turned to me and said, if he was to settle with Mr. Stewart according to Mr. Stewart's ideas, he would owe him a pretty smart sum of money, but there was a good deal to do, and he did it; there were criminals to carry to the penitentiary, and he went with them, and he thought he ought to have half of the profits. Higdon had been acting as deputy sheriff for Mr. Stewart, and in the conversation above detailed, he was talking about his business as deputy sheriff for Mr. Stewart. That is the sum and substance of the conversation I had with him."

In answer to cross-interrogatories on the part of the defendants, the witness says: "I was not the agent of Mr. Stewart at the time of the conversation above spoken of. I cannot speak very definitely, but should think the conversation between Higdon and myself was at least an hour after that between Higdon and Stone." In answer to the third cross-interrogatory,  [**4]  viz: Did not Stone ask Higdon, in the conversation between them, if he owed Stewart as much as fifty dollars, and did not he reply that if there was fifty dollars owing between them, that Stewart owed it to him, or words to that effect? he says: "I did not so understand it; Mr. Stone called his attention to the business between him and Mr. Stewart; he, Higdon, said that he and Stewart never had had any settlement, and that he did not think he owed Mr. Stewart any thing, that he had receipts for all the money he had paid Mr. Stewart, except for one hundred dollars, but he did not know how much he had paid him, he thought he had paid him six or seven hundred dollars, but the books or receipts would show; sometime afterwards, Mr. Stone called his attention to the matter again, when he said he did not think he owed Mr. Stewart more than fifty dollars."

The plaintiff then prayed the court to instruct the jury, that the evidence contained in said deposition, if believed by them, was sufficient to remove the bar of the statute of limitations, which instruction the court gave, and to this ruling the defendants excepted.

3rd Exception. Upon all the aforegoing evidence, contained in [**5]  the two aforegoing exceptions, herewith incorporated and made part of this exception, the defendants prayed the court to instruct the jury that the aforegoing evidence, if found by them to be true, is not sufficient to remove the bar of the statute of limitations, except as to the sum of fifty dollars, which instruction the court refused to give, but instructed the jury that it was their duty to take the admissions of the intestate, Higdon, together, as well those which operated in his favor as those which operated against him, and find a verdict accordingly, to which refusal of the court to give the instruction as asked, as well as to the instruction given, the defendants excepted.

The verdict was in favor of the plaintiff for $ 1865.73, and from the judgment thereon the defendants appealed.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

The plaintiff, who had been sheriff, proved that the defendants' intestate, while acting as his deputy, had received and collected fees to the amount of $ 2666.76, and then, to remove the bar of the statute of limitations pleaded in the case, proved that in an interview, some time before his death, the intestate had a conversation with witness, and with a third party in witness' presence, in which he said, if he was to settle with the plaintiff, according to the plaintiff's ideas, he should owe him a pretty smart sum of money, but there was a good deal to do, and he did it; there were criminals to carry to the penitentiary, and he went with them, and he thought he ought to have half the profits; that he and the plaintiff never had had any settlement, and he did not think he owed the plaintiff any thing; that he had receipts for all the money he had paid the plaintiff, except for $ 100, but he did not know how much he had paid him, he thought he had paid him $ 600 or $ 700, but the books or receipts would show; that he did not think he owed the plaintiff more than fifty dollars. HELD:

1st. That these declarations are not sufficient to remove the bar of the statute; they come within the principle that where the debtor makes an acknowledgment, accompanied by a qualification or declaration, which, if true, would exempt him from a moral obligation to pay, he will not be bound.

2nd. That these declarations, which must be taken together as a whole, mean that the debt was discharged by payments and his claim for services, which amounted to a denial of its existence at the time of the conversations.

An acknowledgment, to take a case out of the statute, must amount to an admission of a present subsisting debt.

The declaration or acknowledgment must be taken as a whole; offered by the plaintiff as his proof, he will not be allowed to adopt the admission and reject the qualification.

Where a party says the debt was once due, but has been paid, it will not revive the remedy; the qualification or accompanying declaration must be taken as true, and cannot be disproved by showing that he was mistaken in supposing it had been paid.

Where a party admits his indebtedness generally, a promise to pay a particular sum need not be proved, but where the admission is limited to a precise amount, the party offering the admission is bound by the declaration as made; he cannot disprove it by showing he owed more, nor can he segregate one part from the other.

Where the declarations offered by the plaintiff contain opinions, and not positive assertions, that the party owed him nothing, still the plaintiff cannot discard these opinions from consideration any more than the other parts of the conversation. 

COUNSEL:
Thos. G. Pratt, for the appellant:

The rulings of the court below present but a single question for the decision of this court, and that is, whether the admissions of the appellants' intestate, as given in the deposition of the witness Day, were sufficient to remove in toto the bar of the statute? It is insisted for the appellants that such admissions were not [**6]  sufficient for that purpose; that in Maryland, nothing less than an assumpsit express or implied will be sufficient to remove the bar of the statute of limitations, after it has once operated upon the demand; that any acknowledgment to take a case out of the statute must be of such a character as that an implied promise may arise therefrom; that there must be a new promise, express or implied --an admission of a present subsisting debt; that if the acknowledgment be accompanied by such qualifying expressions or circumstances as repel the idea of an intention or contract to pay, no implied promise is created; that if the acknowledgment be accompanied by a qualification or declaration which, if true, would exempt the party making it from a moral obligation to pay, it will not suffice; that when a qualification accompanies the admission, the truth of the qualification cannot be disputed, and if taken together a new promise or contract to pay cannot be implied therefrom, the bar of the statute is not removed; and that in this case the admission, "that he did not owe more than fifty dollars," cannot raise the implication that he promised to pay two thousand dollars.

A. B. Hagner and [**7]  A. Randall, for the appellee:

It is conceded that an acknowledgment to take a case out of the statute must be of such a character that an implied promise to pay may arise therefrom; that it must amount to an admission of a present subsisting debt, but there need be no express promise to pay, nor an acknowledgment of any particular sum. A promise to settle or account imports, ex vi termini, a promise to pay. A general acknowledgment of indebtedness is sufficient, and opens the case to whatever the plaintiff may be able to prove to the jury, was the amount of that indebtedness. The admissions here amount clearly to the acknowledgment of a subsisting debt. The qualifications thereto do not amount to the assertion of any claim or set off. They are mere opinions:--he says: "I think we are about even;" "I think I ought to have half of the profits;" "I do not think I owe him more than fifty dollars;" "I do not think I owe him any thing." Such statements, coupled with an acknowledgment of a subsisting debt, amount to nothing. He received by the verdict, under the court's instruction in the defendants' second exception, the full benefit of the payments which he even thought he had made.  [**8]  These qualifications are not and cannot be construed as a denial of an existing indebtedness, for they are qualified by the admission that at least fifty dollars was due, which, as we have said, opens the whole account, and permits the plaintiff to prove whatever balance he can to be due thereon.

Note:--The cases and authorities cited on the either side were 1st. Maryland cases:--2 H. & J., 307, Poe vs. Conway. 1 H. & G., 204, Oliver vs. Gray. 2 G. & J., 64, Rogers vs. Waters. 2 G. & J., 296, Keplinger vs. Griffith. 4 G. & J., 509, Frey vs. Kirk. 5 G. & J., 497, Kent vs. Wilkinson. 8 G. & J., 133, Sothoron vs. Hardy. 10 G. & J., 50, Lamar vs. Manro. 1 Gill, 172, Duvall vs. Peach. 4 Gill, 205, Brookes vs. Chesley. 6 Gill, 82, Guy vs. Tams. 7 Gill, 43, Carter vs. Cross. 7 Gill, 85, Ellicott vs. Nichols. 5 Md. 376, Mitchell vs. Sellman. 8 Md. 328, Carroll vs. Ridgaway. 8 Md. 374, Stockett vs. Sasscer. 9 Md. 52, Peterson vs. Ellicott. 10 Md. 197, Quynn vs. Carroll. 2nd. Other authorities and cases:--2 Greenlf's Ev., sec. 443. 8 Johns., 407, Bush vs. Barnard. 15 Johns., 511, Sands vs. Gelston. 9 Sergt. & Rawle, 128, Fries vs. Boisselet. 10 Bing., 446, Dabbs vs.  [**9]  Humphries. 2 Wash. C. C. Rep., 514, Read vs. Wilkinson. 28 Verm., 771, Steele vs. Towne.  

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

OPINIONBY:
TUCK 

OPINION:

 [*110]  TUCK, J., delivered the opinion of this court.
The defendants' first exception presents the question, whether the evidence of Day was sufficient to remove the bar of the statute of limitations? Upon a careful re-examination of the cases so often reviewed in this court, we are of opinion that the point ought to have been decided with the defendants below.
What passed in the presence of witness, between Higdon and Stone, and the subsequent remarks of Higdon to Day himself, must be treated as portions of the same conversation or transaction; and, indeed, if taken separately, the result would not be different. Whether they were sufficient for 

 [*111]  the purpose for which the evidence was offered by the plaintiff, must depend on the inquiry, did they amount to "an admission of a present subsisting debt?" of which character must be an acknowledgment, to take a case out of the statute. Frey vs. Kirk, 4 G. & J. 509.
We consider this case as covered by the principle established, and [**10]  over and over recognized in this court, that where the debtor makes an acknowledgment, accompanied by a qualification or declaration, which, if true, would exempt him from a moral obligation to pay, he will not be bound. Oliver vs. Gray, 1 H. & G. 204. It appears that these parties had accounts for several years--Higdon acting as deputy sheriff for Stewart, making collections and performing other services, with no agreement as to his compensation, and no settlement, except that he had made payments for moneys collected. It is manifest that if they had disagreed, and Stewart had sued Higdon in his life time, the latter could have discharged himself only by proving the value of his services, and the payment of the sums for which he might claim credit. These would have been the basis of a set off or discount, and if the services happened to be barred by limitations, or he could not produce proof of their value, or of his payments, the case deprecated by the court in Oliver vs. Gray, would have arisen. Higdon would have bound himself, while his own declarations would not have revived his remedy against Stewart; and thus he might have been compelled to pay a claim [**11]  on his own admission, when most clearly the case, as stated by himself, if true, would not entitle the plaintiff to recover. These views were expressed in Mitchell vs. Sellman, 5 Md. 376, and Lockes' Adm. vs. Sasscer, 8. Md. 374.
As we have said, the declaration or acknowledgment must be taken as a whole, and it cannot be disproved as to any part; offered by the plaintiff as his proof, he will not be allowed to adopt the admission and reject the qualification. The declarations indicate that Stewart had presented an account which Higdon deemed incorrect, for he said to Day, if he was to settle according to Stewart's ideas, he would owe 

 [*112]  him a smart sum of money, and in the same interview he said he did not think he owed him any thing. How an implied promise to pay a debt can be imputed to a man who says he does not think he owes any thing, it is difficult to perceive. We suppose Higdon was willing to have had a fair settlement, but his remarks show what he considered proper elements of a fair settlement; there was much to do and he did it; he had carried prisoners to Baltimore, and he thought he was entitled to half the profits; he had paid money [**12]  and had receipts for all his payments, except one hundred dollars; these, doubtless, he deemed fair demands by way of discount or set off, and if his pretensions were true, he was under no moral obligation to pay, unless they were allowed; and the law does not charge him by admissions that will not bind the other party, so as to prevent him from interposing defences which might not have been in the power of Higdon to meet. If he had said the debt was once due but had been paid, it is clear that the admission would not have revived the remedy. The qualification or accompanying declaration must be taken as true, and cannot be disproved by showing that he was mistaken in supposing it had been paid. Oliver vs. Gray, 1 H. & G. 204, 220. And so if had said he had a set off against it. We think the meaning of this acknowledgment is, that the debt was discharged by payments and his claim for services rendered, which amounted to a denial of its existence at the time of the conversation.
But it is said his denial was not unqualified; that he admitted fifty dollars to be due, which opened the whole account between them. It is true, that where a party admits his indebtedness [**13]  generally, a promise to pay a particular sum need not be proved. But here the admission is limited to a precise amount; is not the party offering the admission bound by the declaration as made? He cannot disprove it by showing he owed more, nor can he segregate one part from the other. He said he did not think he owed any thing; again, that he did not think he owed him more than fifty dollars; which we take to mean this, that he thought he owed him nothing, but 

 [*113]  if he owed any thing, it was not more than the sum stated. If we say that, under this loose conversation, the plaintiff may recover a thousand or more dollars, if the plaintiff can prove that much as originally due, would it not be turning the man's words into something that he did not say, by construing his admission, qualified as it was, into a promise to pay a much larger amount, which his other remarks clearly, as we think, show he deemed an unjust demand? It is of no consequence that he did not speak confidently of his owing nothing, but merely expressed his opinion. The plaintiff offers these opinions, and cannot discard them from consideration any more than the other parts of the conversation.
The second [**14]  exception becomes unimportant, for as much as by it the defendants, upon all the proof, offered to submit themselves to a verdict for part of the demand, when, as we think, they were not liable at all, and we may pass it without further notice.
Upon the best reflection we have been able to bestow on the case, we take these views to be in accordance with the decisions of this court, and, as the evidence was not sufficient to remove the bar of the statute, a procedendo will not be ordered.
Judgment reversed. 

62 of 196 DOCUMENTS 

EBENEZER T. PHELPS and JOHN STEWART'S lessee vs. JAMES PHELPS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

17 Md. 120; 1861 Md. LEXIS 24 

March 27, 1861, Decided 

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

Ejectment, for a tract of land called "Addition to Timber Ridge," brought on the 28th of March 1849, by the appellant against the appellee. The nar. and pleadings are fully stated in the opinion of this court.

The case was submitted to the court below on an agreed statement of facts, the material parts of which are also fully stated in the opinion of this court. It is only necessary to add, that the statement of facts shows that Ebenezer T. Phelps petitioned for the benefit of the insolvent laws in the city of Baltimore, on the 24th of February 1844, and, on such application, John Stewart, one of the lessors of the plaintiff, was duly appointed his permanent trustee, and has duly bonded and qualified as such; and that the deed styled "This indenture between Richard Phelps and James Phelps of the one part, and Walter Phelps of the other part," made part of the statement of facts, is dated the 24th of December 1817, and describes the land thereby conveyed, thus: "All those three following tracts or parcels of a tract of land called 'Addition to Timber Ridge,' lying in Anne Arundel county, and contained within the following [**2]  metes and bounds, courses and distances, to wit: which will fully appear in the deed made by Charles Carroll of Carrollton, Daniel Carroll of Dundengton, and Christopher Johnson of Baltimore, to said Richard Phelps and James Phelps and their heirs and assigns." It was then agreed that if the court shall be of opinion, upon this statement of facts, that the plaintiff had lawful right or title of entry into said land and premises, then judgment is to be entered for the plaintiff in the usual form; otherwise, judgment to be entered for the defendant, with the right of appeal to each party.

The court (BREWER, J.) gave judgment for the defendant and the plaintiff appealed.  

DISPOSITION:
Judgment reversed, and judgment for the appellant for the premises described in the declaration, and costs.  

HEADNOTES:

Parties may take by way of remainder, though not technical parties but strangers to the deed, and upon the title derived by such conveyance, may, after the death of the tenant for life, maintain an action of ejectment.

For many years courts have gradually abandoned the nice distinction between rights of parties created by indentures and deeds-poll, and the Act of 1794, ch. 57, was evidently passed with this object in view.

The execution, acknowledgment and enrollment of a deed makes it obligatory on the grantors, and one enrollment is an acceptance by all the parties claiming under it, unless the contrary be shown.

Where the parties to take in remainder are children of one of the grantors, such grantor, even if the deed be an indenture, is concluded by it from denying the title created in favor of his children, and a party claiming through such grantor is equally estopped.

Where a deed, not containing the courses and distances, refers to another deed which does contain them, it makes the deed referred to a part of the first deed, and if the location on the plats corresponds with the deed containing the courses, it will suffice.

The permanent trustee of an insolvent supersedes the provisional trustee, and the property of the insolvent passes into his hands with the title thereto, by operation of law, in the absence of a deed conveying the same to him.

The Act of 1829, ch. 208, though vesting the title to the insolvent's property in the provisional trustee, without a deed from the insolvent therefor, yet this act does not disturb the authority of the court to appoint a permanent trustee.  

COUNSEL:
F. H. Stockett and Thos. S. Alexander, for the appellants:

1st. It is believed that the judge below, as the reason for his judgment, considered that the three children of James Phelps, not being technical parties to the deed, which can only be treated as an indenture, can take no estate by such conveyance, but had it been a deed-poll, it would have been operative to convey the legal estate in remainder [**3]  to the children, or had it been to Walter in trust for the children, it would have been operative in equity, but being an indenture as opposed to a deed-poll, it can only convey a legal estate to such as are technically parties to the same. The deed was duly executed, acknowledged and recorded, and it must be treated as having been delivered to and accepted by the children, though no parties to it. 11 Md. 41, Hutchins vs. Dixon. 6 H. & J., 234, Craufurd vs. The State. 6 Md. 525, Warner vs. Hardy. 3 Md. 67, Stewart vs. Redditt.

With respect it is submitted, that the court has fallen into the prevalent error of supposing that an indenture must be inter partes, and that a deed-poll must, of necessity, be in the first person. Though this view seems at first plausible, we think it can be successfully shown that it is wrong in both particulars. Litt. in sec. 370, tells us, that an indenture may be in the third person or in the first person; and in secs. 371, 372, he gives us examples or precedents in form. It is not of the essence of an indenture, therefore, that it should be inter partes, Shep. Touch., 51. Again, Lord Coke, in commenting on sec. 370, tells us that an indenture [**4]  is so called because it is actually indented in the top or side answerable to another, and that a deed-poll is that which is plain without any indenting, and it is so called because it is cut even or polled. In other words, every deed which is not indented in fact is a deed poll, and therefore, a deed-poll may be indifferently inter partes or in the first person. And again he tells us, if a deed begin "Hoec Indentura," and in truth the parchment is not indented, this is no indenture, because words cannot make it indented. It is clear, therefore, that according to Lord Coke's definition the deed in the present case is a deed-poll--and it is not made the less so by the Act of 1794, ch. 57. This Act only declares that indenting shall not be necessary to the validity of every deed. The Acts of 1715, ch. 47, and 1766, ch. 14, had expressly required every deed intended to pass real estate to be indented. The Act of 1794 declares indenting to be unnecessary, or in other words, that indentures and deeds-poll shall be equally operative as conveyances of land. But that Act does not profess to make that an indenture, which, in truth, is not an indenture. The supposition that it did, is, perhaps,  [**5]  the origin of the prevalent error before referred to. Had the provisions in that Act been, that indenting should no longer be necessary to an indenture, then every deed commencing with the words "Haec Indentura" would be a legal deed indented. But there is no such provision in that Act. What was necessary to make an indenture prior to 1794, remains necessary now. What was a deed-poll prior to 1794 is a deed-poll at this day. The letter and intent of the Act were, that parties may now indifferently use an indenture or deed-poll, to effect a purpose which, before the Act, could only have been accomplished by indenture.

And it will now be found that, for very many years, courts have gradually abandoned the nice distinctions formerly relied on between rights of parties created by indentures and deeds-poll. A deed-poll is now regarded, in England, as a deed made between the party or parties who executed it on one side, and all the world on the other; or rather as a declaration addressed to all mankind of what the parties executing it have done, so that any person may take a right of action on any covenant in it, and this without respect to the mode of commencing the deed, or whether [**6]  in the first or the third person. The only question for determination, to make it obligatory on the grantors, is the fact of acceptance by the parties claiming title under it--one enrollment is an acceptance, unless the contrary be shown as the authorities already cited establish. So formerly it was held that a stranger to an indenture could not take a release under it, or an estate, unless by remainder or through the statute of uses. Now, however, the courts hold that a stranger may take immediately under an indenture, and the deed may have the effect of an indenture without being actually indented. 1 Spence's Eq., 160. In this country the distinction is, that a deed-poll is held to be the deed of the parties making it, and concludes them only, but an indenture is the deed of all the parties and concludes all. 2 Hill's (S. C.) Rep., 439. 2 Hilliard on Real Prop., 265, et seq.

In the present case it will be remembered, the grantors are Richard and James Phelps, and the parties to take in remainder are the children of James named in the deed. It will also be recollected, that the contestant is, also, the child of the same James Phelps not named in the deed, and the issue by a different [**7]  marriage. If, therefore, this be an indenture, James, as one of the grantors, is concluded by it, under the strictest construction, from denying the title so by him created in favor of the lessor of the plaintiff; and are not all of his other children equally estopped by it, who can only claim through their father?

The court could have no doubt, if this conveyance had been a trust for the children as in Ware vs. Richardson, 3 Md. 505. In that case the limitations were to R. and his heirs and assigns, in trust, for the separate use of Mrs. R. for life, "and from and immediately after her death, then to and for the use and benefit of her children." Judge Mason on page 546, considers it unnecessary to determine whether the deed was a feoffinent or a bargain and sale. But as it was held that the legal estate in fee was vested by that conveyance in the children of Mrs. R., and as we know that, under a bargain and sale, the legal estate vests in the bargainee alone, it must have been assumed by the court that the deed was to operate as a feoffment, and we must also assume that the court considered the estate of the trustee, by virtue of the deed, was coeval with the trust it intended [**8]  to serve, and the remainder to the children vested at common law. On this hypothesis that case precisely covers the present one:--for it will show that if A. enfeoffs B. for life, remainder to C. in fee, and livery of seizen is made to B., this will sustain the estate in remainder, and the inference is clear that enrollment serves the purpose of livery of seisin.

If a deed be made between A. and B., and it conveys land to B. for life, and then to C., this deed shall have the effect of vesting the estate in C. after the expiration of the particular estate. It will also be borne in mind, that the Acts of 1715 and 1766, which alone render a deed necessary, do not require that it shall be made inter partes, and that no writing whatever was necessary at common law. Hence it may be concluded that, as the statute of frauds and the Acts of 1715 and 1766 are silent as to form, and as indenting is rendered unnecessary by the Act of 1794, at this day lands may be conveyed indifferently by indenture or deed-poll, and by deed inter partes or in the first person, and that any such deed may operate as a feoffment or bargain and sale, as may best advance the intent of the grantor. All these inferences [**9]  seem to be conclusively sustained by Litt., sec. 374, and Lord Coke's Commentaries thereon. Litt. puts the case of an estate made by indenture to A. for life, remainder to B. in fee; the indenture is sealed by A., after his death B. enters; he is bound by the conditions of the deed, and Lord Coke says this is so, albeit he in remainder be no party to the indenture, the parties thereunto being only the lessor and the tenant for life. And further on he takes this diversity, that a stranger to the indenture may take by way of remainder, but he cannot take any present estate in possession. Other cases are then put to the same effect, and in sec. 375 it is shown that by deed-poll, one, not a party, may be bound and may take interests.

In the case of Ware vs. Richardson, if the court did not assume that that deed operated as a feoffment, then, as a bargain and a sale, the court construed it at the same time as a conveyance of the legal estate to the children in remainder, and the conclusion must be that the children, though no parties to the deed, were bargainees in respect of the interests or estates limited to them. In either point of view it covers the present case, rendering it [**10]  clear of difficuly.

Walter and Joshua, two of the children named in the deed, died intestate, unmarried and childless, leaving Ebenezer entitled to the whole as surviving joint-tenant. He would be equally entitled to the whole as the sole heir at law to whom the land could descend, being the only brother of the whole blood of said Walter and Joshua; there being no sister of the whole blood or descendant of a brother or sister of the whole blood, and the land having been acquired in a way other than by descent. Act of 1820, ch. 191 sec. 1.

2nd. As to the title of Stewart, the trustee in insolvency. The various objections urged to his title are, it is respectfully submitted, not valid. The trustee is not estopped from asserting title to the land now in dispute, by the fact that the insolvent returned a schedule in which he states that he had no property, for all the authorities are clear to the point, that all the insolvent's property passes to his trustee, whether embraced in the schedule or not. Nor was there any necessity for a deed from the provisional to the permanent trustee. The Acts of 1808, ch. 71, sec. 3, and 1812, ch. 77, sec. 6, expressly declare, that the appointment [**11]  of a trustee shall operate as an assignment of all the insolvent's property, so as to vest the title to the same in such trustee, without the necessity of the insolvent executing a deed therefor, and the Act of 1816, ch. 221, secs. 2, 3, 6, seems to apply the same rule to cases arising in the city of Baltimore, and to vest the property in the permanent trustee in the same manner. In the case of Kennedy vs. Boggs, 5 H. & J., 403, decided by the Court of Appeals in 1822, it was held that the provisional trustee had no power to sue in his own name. This difficulty was obviated by the Act of 1829, ch. 208, sec. 3, but this Act does not interfere in any manner with the power of the court to appoint a permanent trustee, or alter in any manner the existing laws as to the rights and powers of such trustee when appointed. It, in fact, was intended, and its only object was, to make the title of the provisional trustee endure until the appointment of a permanent trustee, in whom the title, according to existing laws, would vest, on his appointment and qualification, in the same manner as in cases of trustees in the counties. The Act of 1819, ch. 84, sec. 7, was entirely unnecessary, and so far [**12]  as we know, has never been practiced under; the commissioners have never required such assignments from the provisional to the permanent trustee to be made, and no case can be found deciding such assignments to be necessary. On the contrary, the question was raised in Kolb vs. Whitely, 3 G. & J., 189, and decided by Harford county court that no such assignment was necessary, and the exception to this ruling was abandoned in argument in the Court of Appeals. The uniform practice has been for the permanent trustee to sue at law and in equity, for all property of the insolvent, whether embraced in his schedule or not, and to set aside fraudulent conveyances by him, and in no case has it been thought necessary that such trustee, in order to entitle him to sue, should produce an assignment or deed from the provisional trustee: See 1 Md. Ch. Dec., 73, Glenn vs. Baker; Ibid, 172, Malcolm vs. Hall; 3 G. & J., 96, Glasgow vs. Sands; also 3 Md. 463, Manahan vs. Sammon; 4 G. & J., 385, Glenn vs. Karthaus.

3rd. Nor is it any objection that the deed in question was not located on the plats. We were not bound to locate this deed. The statement of facts admits, "that the land in controversy [**13]  between the parties to this cause is correctly located on the plats." This deed does not contain the metes and bounds, but refers to the deed from Carroll and others which does contain them. All that it was necessary for us to do was to locate this latter deed--the deed conveying the same land need not be located. 3 H. & J., 228, Roseberry vs. Seney.

A. Randall, for the appellee:

1st. The indenture under which the lessors of the plaintiff claim, between Richard Phelps and James Phelps of the one part, and Walter Phelps of the other part, can confer no such title to said lessors, or any claiming under them, as will authorize them to institute and recover in this action. The deed is one inter partes, and none can recover in ejectment claiming under it, who are not parties thereto, or claiming legal title under them. The indenture grants the land to the grantee for his and his wife's life, then to the three sons of James Phelps, Walter, Ebenezer and Joshua, to them, their heirs and assigns forever. They are not parties to this deed, and cannot recover any legal title under it. In 2 Lev. Rep., 74, cited in 2 Jacobs' Law Dic., Title Deed, page 226, it is laid down: "Where a deed [**14]  is by indenture between parties, none can have an action upon that deed but he who is a party to it; where it is a deed-poll, one may covenant with another who is not a party to it, to do certain acts," &c. The authorities referred to by the counsel on the other side, show that a deed need not be indented in Maryland or in England, the effect of enrolling deeds, of union of estates, &c., but none of them show that any legal estate passes by a deed inter partes to a stranger, as in this case. This conveyance is to the grandfather and grandmother of Ebenezer, and, after their deaths, to Ebenezer and his brothers--none of them parties to the deed--and none of them enter into possession: but James, the father, enters and holds for twenty years, and dying intestate, in possession, the right descends to his children, his heirs at law. Other authorities show that remainders may be taken by those who are not parties, but it is submitted that those cases apply where the remainders are to the children or heirs of those who take the life estate, and not, as in this case, where the remainder is to some, only, of the children of one of the grantors, who takes no estate. Other cases, where there [**15]  is some act of those in remainder accepting the estate and entering into possession, but in this case Ebenezer's right began in 1834, and yet he never sets up any title to the land until after James had remained in possession and died in possession in 1847, and his children entered and held possession about a year, when, in October 1848, this ejectment is brought.

Again, the appellee contends the lessors of the plaintiff cannot recover in this action, because they never had possession of this land. Walter and his wife, the tenants for life, died, as appears by the statement of facts, about 1827; James then entered into possession and so continued all his life, till 1847, when he died, and descent was cast upon all his heirs at law. Walter and Joshua, the sons, died, the former in 1831, the latter in 1841, and Ebenezer arrived at age in 1834, so that James Phelps remained in possession claiming title for twenty years, and for thirteen years after Ebenezer arrived at age, before the descent cast upon his (James') children. 4 Md. 138, Hammond vs. Inloes. This, it is submitted, tolled the entry of Ebenezer, and that neither he nor those who claim under him, had such a legal right [**16]  of possession as enabled them to bring this ejectment. The claimant must have a right to the possession; that is to say, he must have a right of entry upon the lands at the time of the demise in the declaration, and whatever takes away this right of possession or entry, and turns the same into a right of action, will also deprive the claimant of his remedy by ejectment, although the legal title still remains in him. Adams on Eject., 34. 3 Maule & Selw., 322, Storer vs. Gordon. 2 Inst., 673. Co. Litt., 23. 16 Johns., 302, Jackson vs. Cary. This right of entry may be destroyed by discontinuance, by descent, by limitations. Adams on Eject., 35. By descents which take away entries, are, when one seized, by any means whatever, of the inheritance and dies, whereby the same descends to his heir. In this case, however feeble the right of the ancestor, the entry by any other person is taken away, and he cannot recover possession against the heir, but is driven to his action to gain a legal seizin of the estate. Adams on Eject., 41, 42. A descent cast need not be pleaded, but must cause the plaintiff to fail in proving his possessory title, and consequently entitle the defendant to a verdict [**17]  on the general issue. Adams on Eject., 270. 3 Bl. Comm., 176. Mr. Gill, in his work on Ejectment, (Dorsey's Lectures,) says, at page 34, that this doctrine does not apply here in Maryland, but, on examination, the cases referred to support no such proposition.

2nd. The title to any estate of Ebenezer, the insolvent, vested by the Acts of 1812, ch. 77, sec. 5; 1816, ch. 221, sec. 2; and 1829, ch. 208, in the provisional trustee, Gray, and the insolvent was divested of all title thereto, and could not institute this suit, and as there is no proof that Gray, the provisional trustee, ever transferred the title to the insolvent's estate to Stewart, Stewart could not institute this suit. Moreover, the schedule filed as evidence in the cause by the plaintiff, shows that the insolvent had no property, and therefore had no title to the land for which this suit is brought. But, however this may operate, the Act of 1819, ch. 84, sec. 7, requires that "in every case now depending or hereafter to come before the commissioners, in which a permanent trustee shall be appointed, different from the provisional trustee, they shall cause a deed of transfer and assignment of and for all the estate,  [**18]  property, rights, credits and effects of the insolvent or insolvents to be forthwith executed by the provisional trustee or trustees, to the permanent trustee or trustees, and lodged with them among the papers belonging to the cause in which it shall have been executed," and sec. 8 also requires this transfer and delivery, and punishes the provisional trustee who fails to make them. This Act was compiled in 1 Dorsey's Laws, 708, 709, as then (1840) continuing to be the law. The case of Kennedy vs. Boggs, 5 H. & J., 403, was decided in 1818, in the court below, and no doubt this law was passed to compel the provisional trustee to convey to the permanent trustee the estate of the insolvent in such cases, no provision having been made for the vesting of the title in the permanent trustee by operation of law, as in the cases of provisional trustee, and trustees for the counties in insolvent cases. But it is said, on the other side, that this Act was passed in ignorance of the existing condition of the law, and was not required. The court cannot presume such ignorance in the Legislature, and, on examination, they will find there is no law which vests by its operation the title of property,  [**19]  which the provisional trustee holds, in the permanent trustee; certainly we have examined with some care, and can find no such law, so that such provision was required for that purpose. None of the cases referred to on the other side bear on this question at all, except that of Glenn vs. Karthaus, 4 G. & J., 385, where counsel, in arguing, refer to this Act of 1819, ch. 84, and Mr. Johnson, in his argument, (page 389,) gets rid of it by showing that the case occurred prior to 1819. This law is also referred to in the case of Williams vs. Ellicott, 6 H. & J., 427, which also arose prior to the passage of the Act. The truth is, it so rarely happens that insolvents have any real estate, and especially land located in another county, that the provisions of this Act have never, as far as we have found out, been required to be applied, or its construction called for by any court. Yet, if no case can be found dispensing with its provisions, we submit, no assignment or transfer of this land in Anne Arundel ever having been executed by the provisional trustee to the permanent trustee, and no law operating so to transfer it, that the title, if any, in the provisional trustee, yet remains there,  [**20]  and as he is not the lessor in either of these demises, the plaintiff cannot recover. The practice, or rather the suggestion of an opinion by counsel on the other side, that it had been the practice of the insolvent commissioners in Baltimore not to require such an assignment, surely would not be sufficient to dispense with this requisition of the law. There have been too many changes made by the decisions of this court, correcting the practice of the circuit courts and court of chancery, in relation to the course of proceeding in cases of insolvency, after a series of decisions establishing it in those courts, to cause this court to hesitate in the discharge of so plain a duty, if so considered by it. There is nothing, therefore, in any of these insolvent laws which dispense with the general laws and policy of the State, time out of mind, to require a duly executed, acknowledged and recorded deed to transfer real estate; in this case more especially demanded, where the court having jurisdiction of this insolvent's case has no jurisdiction in the county where the land lies. But, again, the Act of 1854, ch. 193, repeals all the laws in relation to the insolvent's trustees, &c., and [**21]  enacts a general law on the subject, and as there is no reservation of such rights as this trustee is now claiming to exercise, it is respectfully submitted, that if he ever had any such, they are now null and void. Dwarris on Statutes, 675. 6 Cranch., 203, United States vs. Hillen. 6 Cranch., 329, The Rachel vs. United States.

3rd. The deed filed in this cause as the evidence of the plaintiff's title has not been located on the plats, nor is there any evidence to prove that the land the plaintiff claims is the land described in that deed.

For these reasons we contend, that there has been shown no such legal title and possessory title in the premises, as is required in every case to enable a plaintiff to recover in ejectment.  

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

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*132]  GOLDSBOROUGH, J., delivered the opinion of this court.
This was an action of ejectment, instituted in the circuit court for Anne Arundel county, by the appellant against the appellee, to recover a tract of land called "Addition to Timber Ridge," lying in said county. There are two demises in the plaintiff's nar., one by Ebenezer T. Phelps,  [**22]  on the 1st day of January 1853, to the plaintiff, for twenty years, the other by John Stewart, on the 1st day of October 1848, for a like period. The appellee appeared, entered into the consent rule, admitted lease, entry and ouster, pleaded not guilty, and the appellant joined issue thereon. At the April term, 

 [*133]  1858, of the circuit court, the case was submitted on the admitted statement of facts set forth in the record, and at the following term the court gave judgment for the appellee, from which the appellant appealed to this court.
By reference to the deed, made a part of the statement of facts, it will be seen that the property claimed by the appellant was conveyed by Richard Phelps and James Phelps, the father of Ebenezer Phelps, to Walter Phelps and his wife, Margaret, during their lives, and the life of the survivor, and on the death of the survivor, then to Walter Phelps, Joshua Phelps, Ebenezer T. Phelps, the three sons of James Phelps, one of the grantors, and their heirs and assigns forever. After the death of Margaret, who survived her husband, James, one of the grantors, and the father of Walter, Joshua and Ebenezer Phelps, to whom the deed had given [**23]  the remainder in fee, took possession of the land in dispute, his three sons being all minors and living with him. James continued in possession until his death, in 1847. Two of the sons, Walter and Joshua, had in the meantime died, intestate, unmarried and without children, leaving Ebenezer, their only surviving brother of the whole blood.
If, therefore, the deed was operative to convey the fee-simple to the three brothers, then Ebenezer was entitled to the whole, as surviving joint tenant. He would be equally entitled to the whole as sole heir at law, the three brothers having acquired the title to the property by purchase, and not by descent. See Act of 1820, ch. 191, sec. 1.
The appellee, however, insists "that the three sons of James Phelps, before mentioned, not being technical parties to the deed, which can be treated only as an 'indenture,' can take no estate by such conveyance."
The attempt to apply to this case the distinction between "deed-poll" and "indenture," we think must fail.
The execution, acknowledgment and enrollment of the deed, made it obligatory on the grantors, and one enrollment is an acceptance by all the parties claiming under it, unless the contrary [**24]  is shown. Hutchins, et al., vs. Dixon, Excr. of Hooper, 11 Md. 29, and the cases there cited. It was 

 [*134]  properly said, in argument, that "for many years courts have gradually abandoned the nice distinctions between rights of parties created by indenture and deed-poll, and the Act of 1794, ch. 57, was evidently passed with this object in view." But beside this, there are direct decisions which support the doctrine that parties may take by way of remainder, though strangers to the deed. See 2 Hills' (S. C.) Rep., 439. 2 Hillard's Real Pro., 265, et seq.
In this case the grantors are Richard and James Phelps, and the parties to take in remainder are the children of James. The appellee is also the child of James, by a different marriage. If this deed be an indenture, James, as one of the grantors, is concluded by it from denying the title created in favor of his children; and the appellee claiming through him is equally estopped.
One of the points made by the appellee's counsel is, that the deed filed in this cause, as evidence of the appellant's title, has not been located on the plats, nor is there any evidence to prove that the [**25]  land the appellant claims is the land described in the deed.
In our opinion this point is not well made. We find by the statement of facts, that it is agreed "that the land in controversy between the parties to this cause, is properly located on the plats in the cause." And though the deed mentioned in the statement of facts is not located, because there are no courses mentioned in it, yet if it refers to another deed which does contain them, it makes the deed referred to a part of the first deed, and if the location is correspondent with the deed containing the courses, it gratifies the law, upon the principle that if there be a reference in the description to something aliunde, a recourse to which will establish the certainty of the premises, such demonstrable certainty will suffice.
As to the second question, the title of John Stewart, the permanent trustee of Ebenezer Phelps:--we think his title cannot be questioned. The Act of 1829, ch. 208, on which the appellee's counsel mainly relies, though vesting the title to the insolvent's property in the provisional trustee, without the necessity of such insolvent's executing a deed therefor, and 

 [*135]  entitling such trustee [**26]  or trustees to use all lawful means for the recovery thereof, yet that law does not disturb the authority of the court to appoint a permanent trustee; and in this case that authority was, in fact, exercised. To facilitate the objects of the insolvent laws, those laws have wisely given to the trustee, appointed by the court, the entire management of the insolvent's estate, subject, of course, to the control of the court by whom he is appointed.
The whole current of authorities, which we cannot disregard, settles the doctrine that the permanent trustee supersedes the provisional trustee, and that the property of the insolvent passes into his hands, with the title thereto, by operation of law, in the absence of a deed conveying the same. See Waters vs. Dashiell, 1 Md. 455, and the Acts of Assembly and cases there cited by the court.
Judgment reversed, and judgment for the appellant for the premises described in the declaration, and costs. 

63 of 196 DOCUMENTS 

JAMES WHITEFORD vs. JOHN H. MUNROE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

17 Md. 135; 1861 Md. LEXIS 25 

March 27, 1861, Decided 

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

Action, brought on the 15th of December 1857, by the appellant against the appellee, on two joint and several promissory notes, purporting to be drawn by Geo. W. Harrison and the defendant, John H. Munroe, in favor of James M. Benton, or order, and by him endorsed, negotiable and payable at the Merchants Bank of Baltimore, one for $ 750, dated July 29th, 1857, and the other for $ 450, dated September 21st, 1857, each at sixty days. The defendant pleaded that he did not promise as alleged, and payment.

A commission was issued to Alexandria, under which the testimony of five witnesses, including James M. Benton, the alleged endorser of said notes, was taken and returned. These witnesses prove, substantially, that the defendant, Munroe, was the brother-in-law of Harrison, and that Benton married the sister of Harrison's wife; that some time prior to and at the date of said notes, Harrison was a merchant in Alexandria, and so continued until the latter part of 1857, or early in 1858, when he quit business and fled, to avoid arrest on a charge of forgery; that the body of said notes and the names of Harrison as well as that [**2]  of Munroe, thereto signed, are in the handwriting of Harrison; that prior to and about the date of said notes, Harrison had issued a large number of notes with the names of Munroe and Benton attached thereto, as drawers or endorsers, upon many of which the name of Munroe was signed or endorsed by Harrison, and that he (Munroe) knew that his name had been so used by Harrison on some of such notes, and at first admitted or did not deny, but afterwards did deny the genuineness of his signatures thereto, and his liability thereon; some of them, however, were paid or satisfied by him. The witnesses do not prove any express authority given by Munroe to Harrison to sign his name; most of them say they know nothing of any such authority; one of them, however, states that he often heard Harrison say, after a warrant was issued for his arrest, that he had Munroe's consent to use his name.

The deed of trust referred to by the witnesses, and offered in evidence in the course of the trial, is dated the 9th of January 1858, and is between George W. Harrison, of the first part, and David Funsten, of the second part. The following parts of it only need be stated. It recites:

"Whereas the [**3]  said Harrison is indebted to sundry persons, who hold as evidence of such indebtedness, in great part, notes and drafts drawn by himself, endorsed by others for his accommodation, or drawn by others and loaned to him for his use, or upon which others are in some way bound or liable, for his benefit, and he desires to secure the payment of said indebtedness, and at the same time to protect and save harmless from all losses, costs and damages whatsoever, those so bound or liable with or for him, as aforesaid, or otherwise."

It then conveys certain specified real and personal property of the grantor, Harrison, all his stock in trade and merchandize, and all accounts and debts due him, to the said Funsten; "in trust, however, for the following purposes, and none other; that is to say, to convert the said property into cash, with all convenient despatch, and as speedily as may be, without unreasonable sacrifice, and to apply the money so arising to the payment of the notes, drafts, &c., following." Then follows an enumeration and specification of certain notes and drafts, from No. 1 to 24, one of which only it is necessary to state, viz: "No. 17, note dated 20th July 1857, drawn by [**4]  said Harrison, endorsed by said Benton and Munroe, and payable at the Merchants Bank of Baltimore, for $ 750." The deed then proceeds:

"And to secure, also, any note or notes, or drafts which may be given in renewal of any of the notes or drafts heretofore described, whether such renewal be in whole or in part; upon all of which said notes and drafts heretofore described, the said James M. Benton, John H. Munroe and Elizabeth Harrison have become and are liable, whether as drawers, endorsers or otherwise, solely for the use of the said George W. Harrison, and which said notes and drafts the said George W. Harrison has used and negotiated." It then directs the trustee to apply the fund to pay in full said notes and drafts, from No. 1 to No. 17, inclusive, in the order in which they stand, and then pro rata to the others, Nos. 18 to 24, inclusive, "and of any other notes or drafts, if any there be, and the same be timely brought to the notice of said trustee, upon which the said Benton and Munroe, and the said Elizabeth Harrison, or either of them, may have become liable for his, the said G. W. Harrison's, accommodation, such payments of the notes, from 18 to 24, (inclusive of both,  [**5]  ) and the other notes last aforesaid, if any there be, to be applied without preference or priority." Then, at the close of the deed, is the following provision:

"And whereas it is possible that in the description of the notes and drafts hereinbefore given, some minor inaccuracies may have occurred, in dates, amounts, or otherwise, the said trustee is, nevertheless, to apply the said fund in the manner hereinbefore indicated, whenever, notwithstanding such inaccuracies, if any there be, the correspondence between the said description and the said notes and drafts is sufficient to establish or satisfy him of their identity."

1st Exception. The plaintiff offered to prove that the signature of Harrison to the $ 750 note mentioned in the declaration, is in his proper handwriting, and further offered to prove that the deed from said Harrison to Funsten (which is then set out in the exception) was procured by the defendant, Munroe, for the purpose of securing him for his liability as a security of Harrison, and then asked the court to instruct the jury:--That if they find, from the evidence, that the said deed was procured to be executed by the defendant, to secure him for his liability [**6]  upon said notes mentioned in the deed, and that the defendant admitted that the said security was sufficient to secure him fully for said liabilities, and that said note sued on is mentioned in said deed, then that said deed is evidence of his liability as one of the signers of said note. But the court (CRAIN, J.) refused to give this instruction, and to this refusal the plaintiff excepted.

2nd Exception. After the proof offered in the preceding exception, made part of this, the plaintiff, further to prove that the signature of Munroe to said $ 750 note is in the handwriting of Harrison, the other party thereto, and for the purpose of showing the authority of Harrison to sign the name of Munroe, or the ratification by Munroe of the said signature of his name, offered in evidence the aforesaid deed from Harrison to Funsten, and the aforesaid proof that said deed was procured to be executed by said Munroe, to secure him from liabilities as security for Harrison, and that he, Munroe, had admitted that said security was ample for such purpose, and then asked the court to instruct the jury that if they should believe, from the evidence, all the facts above enumerated, then that the [**7]  same are evidence to be weighed by them of the ratification by Munroe of the said signature of his name by the said Harrison upon said note for $ 750. This instruction the court refused to give, and to this ruling the plaintiff excepted.

3rd Exception. After the evidence in the preceding exceptions, made part of this, the plaintiff proved that the defendant was the brother-in-law of Harrison, and that Harrison, for many years prior to and at the time of the execution of said note, was engaged in merchandize in Alexandria, Va., and then offered in evidence the testimony taken under the commission to Alexandria, heretofore stated, and then asked the court to instruct the jury that if they should believe, from the evidence, that Munroe was in the habit of recognizing his liability upon notes where his name was signed by Harrison, and that he procured said deed to be executed to secure his liability for such signatures of his name by Harrison, and admitted its sufficiency fully to indemnify him for all notes mentioned in the deed, and shall further believe that the note for $ 750 was intended to be secured by said deed, then that such evidence is to be weighed by the jury as evidence [**8]  of the defendant's ratification of the said signature of his name to said note. Which instruction, as asked, the court refused to give, and to this ruling the plaintiff excepted.

4th Exception. After the evidence in the preceding exceptions, made part of this, the plaintiff proved, by a competent witness, that he did not know whether the signature of Benton, as endorsed on said note for $ 750, was genuine or not, although he would say, from his knowledge of his handwriting, having seen him write, it was genuine, were it not for the transaction detailed by him in his answer under the commission, but if he were now permitted to state his belief, it is that the endorsement is in the handwriting of Harrison, and then asked the court to instruct the jury:

1st. That if, from the above evidence, or from the recitals of said deed, they should believe that this note is endorsed in the genuine handwriting of Benton, and that Harrison was authorized by the defendant, Munroe, to sign his name to it, then that the plaintiff is entitled to recover.

2nd. That if the jury should believe, from the evidence, that the name of Munroe was signed to said note by Harrison, with the authority [**9]  of Munroe, then that the plaintiff, by reason of the deed and other proof, is entitled to recover of Munroe, although they may believe that the signature of Benton, on the back of said note, was signed by Harrison.

The court refused these instructions, but instructed the jury that, to enable the plaintiff to recover in this action, they must find, from the evidence in the cause, that the signature of Munroe was his genuine signature, or that Harrison was authorized by Munroe to sign said note, or sanctioned the same after it was signed, and that they must further find, from the evidence in the cause, that the endorsement on said note was the genuine endorsement of Benton, the payee in said note. To which refusal to give his instructions as asked, and to the instruction as given by the court, the plaintiff excepted.

5th Exception. After the evidence offered in the preceding exceptions, made part of this, the plaintiff offered to read in evidence the proof taken under the commission filed in this case, except the proof of Benton, whose name is endorsed on said note, the plaintiff objecting to the competency of said Benton as a witness, because of his interest under the deed [**10]  of trust, he having aided Munroe in procuring said deed, but the court overruled the plaintiff's objection to the competency of Benton as a witness, and to this ruling the plaintiff excepted.

6th Exception. Upon the evidence contained in the preceding exceptions, made part of this, the plaintiff further prayed the court to instruct the jury that if they believe, from the evidence, that Harrison signed the name of the defendant to the two notes sued upon in this case, or either of them, by his authority, and further find, from the evidence, that Harrison executed the said deed of trust to Funsten, at the joint request and procurement of the defendant and Benton, and that Benton had no interest in said notes, or either of them, and was not intended to be made a party to the transaction, but that the insertion of his name as payee in said notes by Harrison, was without the authority of Benton, then that the plaintiff is entitled to recover, although they shall find that the endorsement of the name of Benton upon said notes was not genuine, which instruction, as asked, the court refused to give, and to this ruling the plaintiff excepted.

7th Exception. Upon the evidence contained [**11]  in the preceding exceptions, made part of this, the plaintiff prayed the court to instruct the jury that if they should believe, from the evidence, that the notes sued on in this case, or either of them, were signed by Harrison, and that the name of Munroe was thereon signed by Harrison, by authority of Munroe, and were put in circulation by the drawers, or either of them, bearing a forged endorsement of the payee in said notes, then that the plaintiff is entitled to recover on the note so signed and put in circulation. Which instruction the court refused to give, and to this ruling the plaintiff excepted.

8th Exception. Upon the evidence contained in the preceding exceptions, made part of this, the plaintiff further prayed the court to instruct the jury that if they shall believe, from the evidence, that the defendant, Munroe, had, on previous occasions, paid notes on which his name had been signed by Harrison, which signatures were forged, without objecting to them, that such evidence is proper to be weighed by them, and, if believed by the jury, they may find for the plaintiff. Which instruction, as asked, the court refused to give, and to this ruling the plaintiff excepted,  [**12]  and the verdict and judgment being in favor of the defendant, the plaintiff appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Prayers, that if the jury find, from the evidence, that the note sued on "is mentioned in said deed," and "was intended to be secured by said deed," are erroneous, because they submit the construction of the deed to the jury, when it ought to have been decided by the court.

A deed of trust executed by H. to secure M. and B. for their liabilities on certain notes, describes one of such notes as a note dated 20th of July 1857, drawn by H., endorsed by B. and M., and payable at the Merchants Bank of Baltimore. HELD:

That a joint and several note for the same amount, payable at the same bank, dated the 29th of July 1857, drawn by H. and M. in favor of and endorsed by B., is not so nearly within this description as to render the deed operative as to it.

A deed of trust was executed by H., to secure M. and B. for their liabilities on certain specified notes, and also on "any other notes, if any there be, upon which said M. and B., or either of them, may have become liable for said H. HELD:

That these general provisions cannot be construed so to include notes not particularly specified, on which M.'s name appears, as to make the deed itself any evidence of a recognition by M. of his liability upon such notes.

In order to bind one of two alleged joint makers of a note, where the payee's endorsement is not genuine, in a suit by the holder of the note against such maker, it is necessary to show that the defendant's name was signed by his authority or sanction, and also that the payee's name was endorsed thereon with the defendant's knowledge and consent.

In order to enable a holder to recover against one of two alleged joint makers of a note, it must be shown that the defendant's signature is genuine, or was authorized to be signed, or sanctioned by him after it was signed, and that the payee's endorsement thereon is his genuine endorsement.

In a suit by the holder against the maker, the endorser is a competent witness for the defendant, because though his testimony may defeat the action and discharge the maker, he may, nevertheless, be liable on the endorsement, and lose the benefit of the judgment against the maker.

A deed of trust was executed by H., to secure M. and B. for their liabilities on certain notes. A suit was brought against M. by the holder of notes purporting to be drawn by H. and M. in favor of B., and by him endorsed, and B. was offered as a witness for the defendant. HELD:

That B. had no such interest in the trust fund created by this deed as to disqualify him as a witness, for the deed conveys the property of H., and though M. may escape liability on the notes in suit, it does not follow that the fund would be released from those notes as debts of H.

A party cannot be held liable upon paper on which his name has been forged, merely because he may have paid, without objection, other notes forged by the same person.  

COUNSEL:
C. C. Magruder and Thos. G. Pratt, for the appellant:

1st. The deed of trust specifies and describes the $ 750 note with sufficient accuracy to embrace it. This deed was made to secure Benton, Munroe and Elizabeth Harrison for their liabilities on notes and drafts, which Geo. W. Harrison, the grantor, had used and negotiated--they are the only cestui que trusts for whose benefit the deed was made. Now the note specially described as No. 17, is for the same amount, and payable at the same bank as the $ 750 note sued on, and the same parties are liable upon it. The only difference is, that the date of the one is the 20th of July, and of the other the 29th of July, of the same year, and in the one Harrison alone is the drawer, while Benton and Munroe are endorsers, in the other, Harrison and Munroe are joint drawers and Benton is endorser. The same parties, however, are liable in each case, and when we consider that the deed provides for any notes which may be given in renewal of those specially described, and also for minor inaccuracies in dates, amounts, or otherwise,  [**13]  it is submitted that this note comes directly within the terms of the deed:--that, in the words of the deed, "the correspondence between the note described and this note, is sufficient to establish their identity." Again, the deed not only secures these parties for liability on the notes specially described, but for all other liabilities on other notes:--"any other notes or drafts, if any there be," upon which the said parties or either of them "may have become liable" for Harrison's accommodation. The proof, moreover, shows that the execution of the deed was procured from Harrison by the defendant, to secure him as surety upon these notes, and that he admitted that the security was ample for such purpose, and this estops him from denying his signature as joint drawer with Harrison of the note in controversy. He gets this deed from Harrison of all his property, for the purpose of securing his liability of these notes, which he insists were forged; he takes the security, and this is a sufficient admission of Harrison's authority to sign his name; he is estopped from denying his liability; it makes that legitimate which was before illegitimate. The same doctrine of estoppel, upon the [**14]  hypothesis of the sixth exception, is equally applicable to Benton, even assuming him to have been intended by the drawers as the real payee, for whose benefit the note was given. If these views are correct, then, it is submitted, the deed was evidence of the defendant's liability as one of the signers of the $ 750 note, or, in connection with the other proof, was evidence to be weighed by the jury, of the ratification by Munroe of the signatures of his name by Harrison, and the rulings of the court below, in the first, second, third and sixth exceptions were erroneous. For authorities on this point see 1 Greenlf's Ev., secs. 22 207. 9 G. & J., 47, Duvall vs. Farmers Bank. 8 Gill, 251, Alexander vs. Walter. 2 G. & J., 296, Keplinger vs. Griffith. 3 Md. 291, Lewis vs. Kramer. 1 Wilson, 257, Hanson vs. Parker. 33 Eng. C. L. Rep., 115, 117, Pickard vs. Sears. 8 Eng. C. L. Rep., 239, Harrison vs. Valence. 7 East., 231, Lundie vs. Robertson. 4 Md. 498, Marshall vs. Haney. 3 Md. 67, Stewart vs. Redditt. 7 G. & J., 20, Cole vs. Hebb. 6 G. & J., 481, Goodhand vs. Benton. 7 H. & J., 36, Davis vs. Davis. 7 Humph., 224, Fitzpatrick vs. School Commissioners.

2nd. Benton was an [**15]  incompetent witness, because of his interest in the fund created by the deed of trust. The deed describes Benton as security on the notes specified, and if he could get rid of any one of them, as was the effect of his testimony, it would increase the fund applicable to the others. It is submitted, therefore, that he was incompetent on the ground of interest, and that the ruling of the court below in the fifth exception was erroneous. 1 Greenlf's Ev., sec. 392, and cases referred to in notes thereto. 8 Gill, 138, Smith vs. Morgan.

3rd. But in this case the payee, Benton, had, in fact, no interest in the notes sued on, and he was not injured by the transfer. The forgery of his name does not affect the liability of the maker, and where the payee has no interest in the note, the principle, that the holder cannot make title through a forgery, does not apply. The drawer of a note payable to a fictitious person, is liable to the holder of the note to whom it is passed; it will be considered as a note payable to bearer. The drawer of a note, where the payee's named is forged, will be liable to the holder if the forged endorsement was on the note when passed by the drawer to the holder.  [**16]  So where the payee named in the note has no interest in it, or where it was not intended he should endorse or have any thing to do with it, the same principle applies, and the drawer is liable precisely as if the note were payable to bearer. Proof of the payee's endorsement is not necessary where the maker of a note makes it payable to a fictitious person, or to a real person and forges his endorsement or procures it to be done, and then puts it in circulation. For these reasons it is submitted, the rulings in the fourth, sixth and seventh exceptions were erroneous. See 1 H. Bl. Rep., 321, Collis vs. Emett. 2 Yeates, 480, Hunter vs. Blodgett. 21 Eng. C. L. Rep., 116, Cooper vs. Meyer. 3 Hill S. C. Rep., 227, Meacher vs. Fort. 1 Comstock, 118, Coghill vs. Amer. Exchange Bank. 2 New Hamp., 446, Foster vs. Shattuck. 11 How., 184, Hortzman vs. Henshaw. 2 Rob. Prac., 161, 162, 163. 2 Gill, 343, Gist vs. Drakely. 1 H. Bl. Rep., 569, 589, 591, Gibson vs. Minet.

4th. The fact established by the proof in the case, that Harrison was in the habit of signing the name of Munroe to notes, as joint drawer with himself, or as endorser upon notes drawn by him, and putting the same in circulation,  [**17]  which fact was known to Munroe, was evidence to go to the jury from which they might find his, Munroe's, assent to his name being placed on these notes by Harrison. The opposite position would operate as a fraud upon all persons taking such notes upon the implied liability of Munroe. The ruling, therefore, in the eight exception was erroneous. Bailey on Bills, (2 Am. Ed.,) 505. 3 Esp., 60, Barber vs. Gingell. 3 Day, 491, Hartford Bank vs. Hart. 2 H. Bl. Rep., 288, Gibson vs. Hunter. 10 Wend., 403, Weed vs. Carpenter. 2 Kent, 477, 480.

Thos. F. Bowie, for the appellee:

1st. There are fatal objections to many of the prayers on the part of the appellant, because of their assuming facts which should have been left to the jury to find, because of there being no evidence upon which to base them, and because they submit questions of law to the jury. The prayer in the first exceptions assumes that Munroe was one of the signers of the $ 750 note, and this, as well as the prayer in the third exception, leaves to the jury the construction of the deed which was a question of law, to be decided by the court. These prayers also, as well as those in the second, fourth, sixth and seventh [**18]  exceptions, are defective, because there was no evidence to support them, but on the contrary, were in direct conflict with the evidence. 11 G. & J., 367, Abell vs. Harris. Ibid., 472, Ragan vs. Gaither. 4 Md. 498, Marshall vs. Haney.

2nd. The deed of trust does not show upon its face, that either of the notes sued on was included in it, and there is no parol evidence even to show that it does. The variance between the description of note No. 17, in the deed, and the $ 750 note sued on, is too broad to admit of reconcilement. The dates are different, and the liabilities of the parties are different. In the one, Munroe was liable only as endorser, while in the other he is sought to be made liable as joint maker. These discrepancies are fatal; the two notes are not the same; their identity is not established. The court could not, therefore, leave it to the jury to find that this $ 750 note was mentioned in the deed, or intended to be secured by it. Nor is there any thing in the general provisions of the deed which can make it evidence in this case:--a deed executed by Harrison to indemnify Munroe, on genuine endorsements, is no evidence of the latters recognition of forged endorsements [**19]  or signatures.

3rd. Benton was a competent witness. He had no interest in the suit, and there is no evidence that he had anything to do with procuring the deed. But even if he had, the fund is not, or at least, may not be discharged from the payment of these notes. Besides, the appellant had himself offered in evidence all the testimony taken under the commission, including that of Benton, and it was too late for him, afterwards, to object to his competency on the ground of interest.

4th. The rulings in the fourth, sixth and seventh exceptions raise, the question, whether title can be made to a note by the holder through a forged endorsement? It is submitted, that the law upon this subject, and as applicable to this case, is correctly stated in the court's instruction in the fourth exception, viz: That to entitle the plaintiff to recover he must prove Munroe's signature to have been genuine, or that he authorised Harrison to sign his name, or sanctioned such signature, and that the endorsement of Benton, the payee, was his genuine endorsement. The present case is distinguishable from all those cited on the other side, on this point, which were cases of contract or agreement [**20]  in reference to the endorsement, at the time the notes were made and put in circulation. Here there is no proof of such an agreement, and this being so, the payee is supposed to be the owner of the note, and to have passed it over to the holder for value, and in such a case his endorsement must be proved, and if it be a forgery the holder cannot recover. 7 G. & J., 468, Lancaster vs. Baltzell. 9 G. & J., 342, 361, Key vs. Knott & Wife.

5th. The ruling in the third and eight exceptions was also correct. There was no evidence of any general authority given by Munroe to Harrison to sign his name to notes, nor that Munroe was in the habit of recognizing his liability upon, or paying notes so signed and put in circulation by Harrison. But even if he had previously paid forged notes without objection, it is no reason why he should be held liable on these, nor was his habit, even if proved, of endorsing notes for Harrison, and recognizing his liability on notes so endorsed, any reason why he should be obliged to pay notes that were forgeries in fact.  

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

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*147]  GOLDSBOROUGH, J.  [**21]  , delivered the opinion of this court.
The appellant instituted this suit in the circuit court for Prince George's county, against the appellee, as the joint drawer, with one George W. Harrison, of two promissory notes, one dated the 29th day of July 1857, for $ 750, and the other dated the 21st day of September 1857, for $ 450, payable respectively sixty days after date, to the order of James M. Benton, negotiable and payable at the Merchants Bank of Baltimore, with the name of James M. Benton endorsed on them, and passed to the appellant by Harrison.
The appellee pleaded that he did not promise as alleged, and payment, and these pleas were put in issue by the replication of the appellant.

 [*148]  At the instance of the appellant, a commission to take testimony was issued and directed to two commissioners in Alexandria, Virginia; the commission was executed, and the testimony taken thereunder returned to the court from whence it issued.
At the trial of the cause, the appellant took eight exceptions to the rulings of the court below, and the verdict and judgment being against him, he appealed to this court.
We approve of the ruling of the court on the prayer of the plaintiff [**22]  in the first exception, because by this prayer, the construction of the deed referred to, is submitted to the jury, when it ought to have been decided by the court.
The court was also right in rejecting the prayer in the second exception; because, though the construction of the deed is reserved to the court, we find no sufficient identification of the notes, for the amount of which the suit was brought. The note for $ 750, it was urged by the appellant's counsel, was so nearly described by No. 17 in the deed; as to render the deed operative as to that note. But we cannot concur in this view. The note sued on is a joint and several note, signed by Harrison and Munroe and payable to Benton, dated the 29th of July 1857. The note referred to in the deed is a note dated the 20th July 1857, drawn by Harrison, and endorsed by Benton and Munroe. And it will not be contended, that if suit were brought for such a note, the note in the plaintiff's nar. could be given in evidence to support it. The second note for $ 450, part of the appellant's cause of action, is nowhere, in terms, mentioned in the deed; and although the general provisions might entitle the holder of these notes to participate [**23]  in the fund, (upon which, however, we mean to express no opinion,) yet they cannot be construed so to include these notes, as to make the deed itself any evidence of a recognition by Munroe, of his liability upon them.
The prayer in the third exception is liable to the same objection as that in the first, and, for the same reason, the court was right in rejecting it.

 [*149]  The first prayer in the fourth exception was properly refused, because there is no evidence to sustain the theory of it.
The second prayer in the same exception could not be granted, because, assuming as it does, that Benton's endorsement is not genuine, then, in order to bind Munroe, it was necessary to find, not only that his name was signed by his authority or sanction, but also that Benton's name was endorsed with Munroe's knowledge and consent, of which, the record furnishes no evidence. We are of opinion, that the appellant cannot complain of the instruction granted by the circuit court, as set forth in this exception. It afforded him an opportunity to introduce the evidence which would enable him to recover, if the case admitted of such proof.
We approve of the court's ruling, contained [**24]  in the fifth exception--we can see no objection to the admissibility of Benton's evidence. An endorser, when offered as a witness by the maker, is competent, because, although his testimony may defeat the action, and discharge the defendant, he might, nevertheless, be liable on the endorsement, and would lose the benefit of the judgment against the maker, to whom he would have a right to look for reimbursement. And, as to his supposed interest in the trust funds, it must be remembered, that the deed conveys the property of Harrison, and although Munroe may escape this liability, it does not follow that the fund would be released from these notes as debts of Harrison.
We also concur with the court below in rejecting the prayers of the appellant in the sixth and seventh exceptions, there being no evidence to show the complicity of the appellee in placing the name of Benton, as endorser on the notes, in this suit.
The prayer in the eighth exception was, in our opinion, properly overruled. This part of the case was argued as if it presented a question of implied authority; but that is not the point of the prayer. A party cannot be held liable upon paper, on which his [**25]  name has been forged, merely because he may have paid other forged notes without objection.
Judgment affirmed. 

64 of 196 DOCUMENTS 

TALLMADGE F. CHERRY vs. DANIEL IRA BAKER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

17 Md. 75; 1861 Md. LEXIS 19 

March 26, 1861, Decided 

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

Action, brought on the 12th of July 1859, by the appellee against the appellant, to recover money paid and for professional services as a lawyer, rendered by the plaintiff to the defendant. The suit was originally brought in the Superior court of Baltimore city. The defendant appeared by counsel in that court, and the record shows that a commission to take testimony was issued, by consent, to H. C. Wright, of New York city, on the 13th of January 1858. The interrogatories of the plaintiff were sent with the commission, with the endorsement thereon by the defendant's attorneys, acknowledging service. This endorsement, as it appears in the record, is dated July 28th, 1858, but the commission was returned executed on the 31st of March 1858, and the interrogatories, with the endorsement, "service admitted," were returned with it.

The cause was then, upon suggestion of the defendant, removed for trial to the circuit court for Baltimore county, and thence to the circuit court for Howard county, where it was tried upon issue joined, on the plea of not indebted as alleged.

Several exceptions were taken in the course of the trial,  [**2]  none of which need be stated except the 3rd and 5th, from which it appears the defendant objected to the execution and return of the commission above referred to, and to the testimony taken thereunder, upon the grounds: 1st. That the said commission does not appear to have been issued in conformity with rule 29 of the Superior court of Baltimore city. 2nd. That it appears that the defendant was not served with a copy of the interrogatories to the plaintiff's witnesses before the issuing of the commission. These objections the court (BREWER, J.) overruled, and to these rulings the defendant excepted, and the verdict and judgment being against him appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

This court cannot take judicial notice of the rules regulating the course of proceedings in the inferior courts; in the absence of proof the presumption is that the proceedings had in the court below were in conformity with its own rules.

Where the record shows that the defendant consented to the issuing of a commission to take testimony, and admitted service of the plaintiff's interrogatories before the commission was issued, he cannot be heard to object that it issued irregularly and without notice. 

COUNSEL:
John H. Ing, for the appellant:

The testimony taken under the commission should not have been allowed to go to the jury. This testimony was taken without notice to the appellant and no opportunity was afforded him to cross-examine the witnesses. No part of the record discloses notice, and the maxim of law is, that that which does not appear should be considered as not existing. But another ground of objection is, non-compliance with the 29th rule of the Superior court. It is true this rule is not made [**3]  part of the record, but such omission, it is apprehended, can make but little difference in view of the decision of this court in Contee vs. Pratt, 9 Md. 73, where it is said in reference to the rules of the court of chancery, "although the rules of court are not in the record, we are, nevertheless, bound, judicially, to know what they are." An examination of this 29th rule will show non-compliance with its requisitions. The appellee did not first file a copy of interrogatories with the name of the commissioner, at least fifteen days before applying to have the commission, and did not serve the opposite party with a copy, and did not afford fifteen days to such opposite party for cross-interrogatories.

B. F. Horwitz and Thos. Donaldson, for the appellee:

The commission having been issued by consent was properly issued and returned, according to the well settled practice in this State. The interrogatories are shown by the record to have been filed before the issuing of the commission, and the word "July," in the admission of service, is evidently a mistake, and intended for "January." Nor is the objection of non-compliance with the rule of court of any avail, for that [**4]  rule is not embodied in the exception, nor does it any where appear in the record, and this court cannot take judicial knowledge of its existence and terms. 15 Md. 581, Rutherford vs. Pope.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*77]  BARTOL, J., delivered the opinion of this court.
In the progress of this cause a great many points were made and exceptions taken, all of which are set out in the record and bills of exception. But in the argument in this court, most of them were abandoned, and are not, therefore, necessary to be noticed.
The only questions discussed before us, and upon which we are asked to reverse the judgment, arise upon the third and fifth bills of exception, and involve the question of the admissibility of the evidence taken and returned under the commission executed in New York. The appellant contends that the commission issued irregularly, and not in conformity with the 29th rule of the Superior court for Baltimore city. But the record nowhere informs us what the 29th rule of that court is; and as we cannot take judicial notice of the rules regulating the course of proceedings in the [**5]  inferior courts, this objection has nothing to sustain it. In the absence of proof, the presumption is, that the proceedings had in the court below were in conformity with its own rules.
The record does not sustain the other objection made by the appellant to the commission. The commission was issued, by the consent of parties, on the 13th day of January 1858. The interrogatories of the plaintiff were sent with the commission, with the endorsement thereon by the defendant's attorney, acknowledging service.
This endorsement, as it appears in the record, is dated July 28th, 1858. But it is manifest that the date is erroneous. The commission was returned executed on the 31st of March 1858, and the interrogatories, with the endorsement of "service admitted," were returned with it. In the face of this evidence, apparent on the record, that the defendant consented to the issuing of the commission, and admitted service of 

 [*78]  the interrogatories before the commission was issued, he cannot be heard to object that the commission issued irregularly and without notice.
Judgment affirmed. 

65 of 196 DOCUMENTS 

HENRY A. PUMPHREY, and others, surviving obligors of PHILIP J. CONNELL, vs. THE STATE OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

17 Md. 57; 1861 Md. LEXIS 15 

March 6, 1861, Decided 

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

Debt, brought on the 2nd of February 1855, by the State against the appellants, as sureties on the collector's bond of Philip J. Connell. The case was submitted to the court below upon the following agreed statement of facts, with the right of appeal to either party:

It is admitted that the county commissioners for Montgomery county, at a meeting held on the 29th of July 1853, appointed Connell collector of the State tax for the 4th election district of that county, that having failed to give bond within the time limited by law, the said commissioners, at a subsequent meeting, held on the 22nd of August 1853, reappointed him collector as aforesaid, that he failed to bond within twenty days from the said 22nd of August 1853, and the said commissioners, at a subsequent meeting held on the 13th of September 1853, again reappointed him collector as aforesaid, and on the 24th of that month he gave the bond on which this suit was brought, which was approved by the said commissioners on that day, (24th of September 1853.) The defendants contend that the commissioners had no power to reappoint Connell as collector, after he had [**2]  failed to bond within the time limited by law, and that his reappointment was illegal, and that the defendants, as his sureties, are not legally bound for his acts. If the court shall be of opinion that the said commissioners transcended their authority in reappointing said Connell collector as aforesaid, and that he was not legally appointed a collector at the time the defendants entered into his bond as his sureties, viz., on the 24th of September 1853, then judgment shall be entered for the defendants; but if the court shall be of opinion that said Connell was legally appointed collector at the time the bond was given and approved, and that said commissioners did not exceed their authority in his reappointment, then judgment shall be entered for the State for the amount of the penalty of the bond, to be released on payment of such sum as the State's Attorney for Montgomery county shall say is due.

Upon this statement of facts, the court (BREWER, J.) gave judgment for the State for the penalty of the bond, to be released on payment of costs, and from this judgment the defendants appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The Act of 1842, ch. 269, sec. 5, does not, in terms, nor by implication, negative the authority of the county commissioners to reappoint a person as collector who may have failed to qualify under a previous appointment.  

COUNSEL:
John F. Vinson, for the appellants, argued:

1st. That the [**3]  statement of facts on which the cause was submitted and decided, does not show a sufficient cause of action to entitle the State to recover. It does not appear from the agreed statement of facts on which the case comes up to this court for decision, that the commissioners for Montgomery county imposed an assessment or tax for the use of the State on the assessable property within the 4th election district of that county, for the year 1853, as the Act of 1841, ch. 23, sec. 52, imperatively requires, and having failed to show this, the State cannot maintain its action.

2nd. That the reappointment of Connell as collector, after he had twice failed to give bond within the time required by law, was in contravention of the Act of 1842, ch. 269, sec. 5, and void, so far as the appellants are concerned. This section provides: "That if any collector, appointed under the authority of this law, or of the Act of March session 1841, ch. 23, and its supplements, shall fail to give bond as required by law, within twenty days after his appointment, the said levy court, commissioners, or mayor and city council of Baltimore, as the case may be, shall immediately again assemble and make other appointments [**4]  in place of those so failing to bond, and if the collectors so last appointed shall fail to bond, as required by law, within twenty days after their appointment, the levy courts, commissioners, or mayor and city council of Baltimore, as aforesaid, shall make new appointments in place of those so failing to bond, and continue, after every twenty days, to fill up said appointments until collectors shall have given bonds for all collection districts in the State."

Here is a power specially delegated, and must be strictly pursued. The county commissioners possess no general jurisdiction, and can exercise no power or authority except that conferred on them by Acts of Assembly, and only in the mode therein prescribed. 1 H. & J., 36, Quynn vs. State. Ibid., 359, Ellicott vs. Levy Court, &c. 3 H. & J., 560, Kerr vs. The State. The commissioners for Montgomery county having appointed Connell, on the 29th of July 1853, collector for the State tax for the 4th election district of that county, and he having failed to give bond within twenty days, as required by law, it became the duty of said commissioners to make other appointment in place of said Connell, so failing to give bond. The Act [**5]  of Assembly is imperative, that they shall make other appointments in place of those failing to bond. It can scarcely be contended that the reappointment of the same person, after he had failed to give bond, is the making of other appointments in the place of those so failing to bond, as required by this Act. Were it so, this strange anomaly would occur, that the same person would be other and different from himself. What other appointment have these commissioners made? They appointed the same person. In place of whom? Of himself. The mere statement of the proposition seems to show its absurdity, and constitutes its best refutation.

W. Veirs Bouic, State's Attorney for Montgomery county, for the appellee, argued:

1st. The object of the Act of 1842, ch. 269, sec. 5, is to secure a competent person, who will duly bond, to collect the State's revenue, and to that end the Act authorises the levy courts, &c., to make new appointments as often as failures in the appointees to qualify occur, until the object is attained. 9 Gill, 103, State vs. Milburn. The intention of the lawmakers must be kept in view. 8 Md. 95, Mayor & C. C. of Balt. vs. Root. And such laws must be liberally [**6]  construed. 1 Gill, 66, Mitchell vs. Mitchell. The Act does not say, upon failure of one appointee, the levy court, &c., shall appoint another person, but the language is, the levy court, &c., "shall make other appointments," &c., "new appointments," &c. The reappointment of the same person, is another appointment--a new appointment. So the reappointment of Connell, after his having twice failed to bond, under previous appointments, is within the object, and even language, of the law, and his bond is valid, and his securities liable thereon for his acts as such collector.

2nd. The bond being legal, is a sufficient cause of action to sustain this suit; the release or extent of damages is to be determined by the State's Attorney. The statement of facts admits that the tax had been duly levied for the use of the State when the bond was given, or at least such is a "clear, undeniable deduction" which the court ought to make "from the statements there agreed on." 3 G. & J., 162, Hysinger vs. Baltzell. The only question submitted to the court below, was the authority of the commissioners to reappoint Connell, who had failed to give bond, as required by law, under former appointments.  [**7]  The decision was in favor of the plaintiff, and from this decision the appeal was taken. The defendants will not be permitted now to raise new questions, but must be confined to the question submitted to the court below. 1 G. & J., 392, Miller vs. Negro Charles.  

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

OPINIONBY:
TUCK 

OPINION:

 [*61]  TUCK, J., delivered the opinion of this court.
The agreement on which this case was submitted to the court below, contains nothing about the assessment of taxes; nor was such statement necessary to the decision of the only question presented by the record, to wit: the validity of Connell's appointment, on the 13th day of September 1853.
We have no doubt of the correctness of the judgment. The Act of 1842, ch. 269, does not, in terms or by implication, negative the authority of the commissioners to reappoint a person as collector who may have failed to qualify under a previous appointment. Such neglect or omission might, in many cases, furnish a very good reason why he should not be reappointed; but, in others, there might be satisfactory cause shown for the failure, and the public might be deprived of the services [**8]  of good officers, if the appellants' interpretation 

 [*62]  of the law were accepted. The matter is confided to the judgment and discretion of the appointing power, to be exercised according to the circumstances of cases as they may arise.
Judgment affirmed. 

66 of 196 DOCUMENTS 

MEYER STEIGERWALD vs. THOMAS WINANS, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

17 Md. 62; 1861 Md. LEXIS 16 

March 6, 1861, Decided 

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

In this case, a bill was filed by the appellant against the appellees, for an injunction to restrain them from proceeding to open, grade and pave a certain street, with a view of laying down railway tracks.

Instead of granting or refusing the injunction, on the ex parte application, the court (KREBS, J.) appointed a day for the hearing of the motion, and the defendants' answer being immediately filed, testimony was taken on both sides, by consent, before one of the regular commissioners. When the motion came up for argument, it was fully argued in December 1860, upon bill, answer, exhibits, testimony, and all the papers then in the cause, and in January 1861, the court refused the injunction, and filed its opinion, and from such refusal the complainant appealed, and all the original papers in the cause were brought up to this court.  

DISPOSITION:
Appeal dismissed.  

HEADNOTES:

No appeal lies, under section 25, Art. 5, of the Code, from an order refusing an injunction, in a case where such order was passed after answer filed and evidence taken by consent in the cause.

A complainant has the right to demand a decision on his bill, and, if the judgment refuses the injunction asked for, to appeal directly to this court, but if he elects to postpone his appeal till proof is taken, and the cause decided on it, his right of appeal is gone, under this section of the Code; in such a case, no appeal lies till final hearing.

Though the Act of 1835, ch. 380, is no longer in force, yet, by consent, proof may be taken, before any one agreed upon, to be used at the hearing in cases of injunction. 

COUNSEL:
Cornelius McLean and Orville Horwitz, for the appellant:

It is submitted that the Code, by sec. 25, Art. 5, provides that, "in all cases," where a judge refuses to grant an injunction "the party applying for the injunction shall have a right to appeal," &c., and to [**2]  have his said appeal heard immediately. Now it is insisted, that if the view taken on the other side be correct, viz: that the filing of an answer on the part of the defendants, had advanced this case so far that the court cannot now look at the appeal, then the party applying for an injunction will not have "in all cases," the right of appeal, but only in those cases in which an answer should not be filed, before the passage of the order refusing the injunction. It will at once be seen that this right of appeal from the order refusing the injunction might easily be taken from the party applying for it, by the activity of the defendant in filing an answer, before the court should deliver its opinion, or pass its order, and the right of appeal would depend on a race of diligence between the defendant in swearing away the equities of the bill, and the judge in deciding to refuse the injunction. It could not have been designed that the right of appeal provided for "in all cases," should depend on any such accident. That the right of appeal is not lost by a privilege granted to the defendant, or by his activity in filing an answer, must be clear. How then is the appeal to be considered?  [**3]  A strict and very technical construction might limit this court to an investigation of the bill and exhibits alone. Justice, the manifest intent of the Legislature, and the establishment of an intelligent and desirable practice, would induce a different construction. The court would determine that the word "comprising," does not mean to limit the court's inquiries to those papers alone, but means to exclude the idea that the "exhibits" were to be omitted. By this construction a reasonable interpretation of the section would be given and the objects of the law accomplished. The word itself signifies "to include," but not of necessity to include only.

John H. B. Latrobe, for the appellees:

This appeal is taken under Art. 5, sec. 25, of the Code. But this would seem to provide for but one case:--that is, when the only papers before the court below were the bill or petition and exhibits; for these are the only papers which the clerk is required to send up. It is well established, however, in Maryland, that the defendant may file his answer, if he has the opportunity, cotemporaneously with the bill; and the action of the court below must be upon both bill and answer. 1 Bland,  [**4]  183, McMechen vs. Story. 3 Bland 532, Hall vs. McPherson. 15 Md. 23, Bell vs. Purvis et al. In the last case the Court of Appeals reversed the court below, because the answer, which came up with the bill, and which had been filed before the court passed its order, swore away the equity, and should have been acted upon by it. But this was a case prior to the Code, and a case in which, doubtless, in accordance with the practice referred to in 1st and 3rd Bland, the answer went up along with the bill under the provisions of the then Acts of Assembly. The Code being the substitute for all such previous legislation, the question now is, whether an answer having been filed, in accordance with the practice of courts of equity, it is not too late for the complainant to exercise the right of appeal given by the Code, relating as this would seem to do to those cases only in which the bill and exhibits alone have been submitted to the court below.

But admitting, argumenti gratia, that the bill necessarily brought up the answer, and that the two are now before the court, the question arises, did it bring up any thing else? did it bring up to the consideration of this court the testimony [**5]  which, in point of fact, accompanies it? Now the right to take testimony in support of the allegations of the bill, in injunction cases, no longer exists. The Act of 1835, ch. 380, which at one time gave it, is not in the Code. The case presents itself, therefore, as it would have done prior to this Act, on bill and answer only; unless, indeed, the consent of parties may make the testimony available at this time. But it is respectfully submitted that, while the consent of parties might make the testimony available at the final hearing, hereafter, as part of that which had been collected in the progress of the cause, yet the fact that it has been taken, carries forward the case to a point at which no appeal is authorised by law, as it now stands. Should this court, however, hold the appeal to be properly taken, the question still presents itself, as to what is before the court? If the bill and answer are alone before it, the court will see that the answer completely swears away the equity. Should the court, however, under the circumstances, determine that all the papers which have been sent up are properly before it, then the whole matter will be open.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*65]  LE GRAND, C. J., delivered the opinion of this court.
This appeal has been brought before the court under the 25th section of the 5th Article of the Code. We do not think the true construction of this section authorises an appeal in a case predicamented as is this one. That section was intended, with a slight modification, as a codification of the Act of 1832, ch. 197, which authorised an application to the judges of the Court of Appeals, or one of them, when an injunction should have been refused by the county court. Under that Act nothing but the bill and its exhibits were to be submitted to the judge of the Court of Appeals. By this section of the Code it is provided, that whenever an injunction shall have been refused by a "judge of a court of equity," the clerk of the court "shall forthwith transmit the original papers, comprising the bill or petition and exhibits, and the said court's order of refusal, to the Court of Appeals, and the said court shall hear and determine the appeal," &c., &c.

 [*66]  The refusal of the court to grant an injunction was not made on the presentation of the bill and exhibits,  [**7]  but upon these and the answer of the defendants and proof. Such a proceeding we do not think within the remedy provided by the 25th section of the 5th Article of the Code. The complainant had the right to demand a decision on his bill, and if the judge refused to grant the injunction asked for, to appeal directly to this court; but, as in this case, if he elect to postpone his appeal until proof is taken and the case decided on it, his right of appeal is gone under the section of the Code to which we have referred. Where such postponement and proceedings are had in the case, it must go on to final hearing, before an appeal will lie. The Code, like the Act of 1832, was intended to apply to a class of special cases, and not to all cases in which an injunction is part of the relief sought. Although the word "comprising," does not under all circumstances, imply including only the things enumerated, yet, in the connection in which it is employed in the Code, we understand it as being used as determining what are the "original papers," which are only to be transmitted, and on which the decision of the court is to be given. Under the Act of 1832, a case, in the condition of this one,  [**8]  could not be brought before a judge of the Court of Appeals, and we regard the Code as giving, in lieu of the application to a single judge, an appeal to the court, but only in such case as an application to a judge of the Court of Appeals would be allowed under the Act of 1832. This is the only substantial difference between the provision of the Code and the Act of 1832. This being our view of the matter the appeal must be dismissed. Inasmuch as there were other matters argued at the bar by the respective counsel, of sufficient importance to require of us to say something in regard to them, we do so briefly.
Although the Act of 1835, ch. 380, is no longer in force, we are yet of the opinion that, by consent, as in this case, proof may be taken before any one agreed upon. Before the passage of the Act of 1835, the practice prevailed in several, if not in all, the judicial districts of this State, of taking testimony 

 [*67]  to be used at the hearing in cases of injunction, and we see no good reason why it should not be continued.
Looking to the public character of the improvement contemplated by the defendants, and the importance of an early settlement of the question whether [**9]  the complainant be entitled to an injunction, we think proper to say, that on the bill, answer and proof, as laid before us, and on which the judge of the circuit court acted, we are of the opinion the injunction ought not to have been granted. The bill made a fit case for injunction, but it was changed by the answer and proof. As other proof may be taken, or an action instituted at law, it is proper we should abstain from the discussion of the facts and law of the case, as it now stands.
Appeal dismissed. 

DISSENTBY:
BARTOL 

DISSENT:

BARTOL, J.
I dissent from my brothers upon the construction of the 25th section of the 5th Article of the Code, and think the appeal was properly taken; but agree with them in the opinion that, upon the bill, answer and proof, the injunction was properly refused.  

67 of 196 DOCUMENTS 

CALEB S. KEECH vs. THE BALTIMORE & WASHINGTON RAIL ROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

17 Md. 32; 1861 Md. LEXIS 13 

March 1, 1861, Decided 

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

Trespass on the case, brought on the 9th of March 1858, by the appellant against the appellee, to recover the value of two horses and one mule, killed on the Washington Branch of the Baltimore and Ohio Rail Road.

The writ was served upon the agents of the Baltimore and Ohio Rail Road company, and that company appeared by counsel, filed pleas, and executed releases to witnesses sworn for the defendant.

The pleas were 1st. That the defendant did not commit the wrong alleged. 2nd. That the mule and horses were on the track of the defendant's road by the negligence and default of the plaintiff, and that such negligence and default contributed to the collision set forth in the declaration. 3rd. That the defendant used proper care and diligence, but that the plaintiff was negligent. 4th. That the said mule and horses were unlawfully on the track of the defendant, and that the defendant was conducting its business in a lawful manner. The plaintiff, by his replication, joined issue on all these pleas.

Exception. At the trial of the cause, the plaintiff, to maintain the issues on his part joined, offered evidence showing [**2]  that the defendants, as charged in the plaintiff's declaration, killed the mule and horses in said declaration specified, by the collision of the cars on the track of said defendants, and the value of said property, and further offered evidence tending to show that the said property of the plaintiff was upon the road without the fault of the plaintiff or his agents, and also tending to show that the said property was destroyed by the defendants, through the negligence of their agents, the conductor and engineer having charge of the train which caused the loss, and then rested his cause. The defendant then offered evidence, tending to show the use of the greatest care and diligence on the part of its agents, and asked the following instructions to the jury:

1st. That if the jury shall find from the evidence that two horses and a mule, the property of the plaintiff, were killed on the Baltimore and Washington Rail Road, and shall further find that said killing was not caused by any negligence on the part of the defendant, or any of its agents, then the plaintiff is not entitled to recover.

2nd. That if the jury shall find from the evidence that two horses and a mule, the property [**3]  of the plaintiff in this case, were killed on the Baltimore and Washington Rail Road, by the collision of a locomotive, the property of said defendant, and under charge of its agents, and shall at the same time find that said horses and mule were upon the track of the said railroad, through any negligence on the part of the plaintiff, or any of his agents, to keep the said horses and mule within his close, then the plaintiff is not entitled to recover, even if the jury should find that there was negligence on the part of the defendant or some of its agents.

3rd. If the jury shall believe from the evidence that the horses and mule, the property of the said plaintiff, were killed by a locomotive belonging to the defendant, and under the control and management of its agents, and shall at the same time find that said horses and mule had strayed upon the track, through any defect in the fences or enclosure of the plaintiff, or by reason of the gate of the said plaintiff having been left open by the negligence of the said plaintiff, or some of his agents, the plaintiff is not entitled to recover.

4th, That if the jury shall believe from the evidence, that two horses and a mule,  [**4]  the property of the plaintiff in this case, were killed on the defendant's railroad, by the collision of a locomotive belonging to the said defendant, under the control and management of the agents of the said defendant, and shall further find that said horses and mule were, at the time of said killing, upon the track of the said railroad, without any fault or negligence of the defendant, or any of its agents, that then the said plaintiff is not entitled to recover, even though the jury should find, that at the immediate time of said killing, the said company was guilty of actual negligence, the said plaintiff being bound to keep said horses and mule on his own premises, or within his enclosure, or in custody, at his peril.

The plaintiff then asked the following instruction:

That if the jury find from the evidence that the horses and mule mentioned in the plaintiff's declaration, were upon the line of the railroad of the defendant without any fault of the plaintiff, or his agent or agents, and were killed by the railroad cars or engine of the defendant, and that they, at the time, were the property of the plaintiff, then the plaintiff is entitled to recover whatever sum the [**5]  jury may find from the evidence the said property was worth, unless they are satisfied that such killing was the result of unavoidable accident on the part of the said defendant.

The court (CRAIN, J.,) refused to grant the instructions asked for, either by the plaintiff or defendant, and gave the following instructions to the jury.

1st. That if the jury shall believe that the horses and mule, the property of the plaintiff in this cause, were killed on the Washington Branch of the Baltimore and Ohio Railroad, by the collision of a locomotive, the property of the said railroad company, and under charge of its agents, and shall at the same time find that said horses and mule, the property of the said plaintiff, were upon the track of the said railroad through any negligence on the part of the plaintiff, or his agents, to keep said horses and mule within his close, that then the plaintiff is not entitled to recover.

2nd. That if the jury shall find and believe, from the evidence in this cause, that the horses and mule, the property of said plaintiff, were killed by a locomotive belonging to the defendant, and under the control and management of its agents, and shall at the [**6]  same time find that said horses and mule had strayed upon the track through any defect in the fences or enclosures of the said plaintiff, or by reason of the gate of the said plaintiff having been left open by the negligence of the said plaintiff, or some of his agents, the plaintiff is not entitled to recover.

3rd. That if the jury shall believe, from the evidence, that the horses and mule, the property of the plaintiff in this case, were killed on the Baltimore and Ohio Railroad, by being run over by a locomotive, under the control and management of the agents of said railroad company, and shall further find that said horses and mule were upon the track of said railroad without any fault or negligence of the defendant, or any of its agents, that then said plaintiff is not entitled to recover, said plaintiff being bound to keep said horses and mule upon his premises, and within his enclosures.

4th. That if the jury shall find, from the evidence in this cause, that the horses and mule, the property of the plaintiff, were killed by the Baltimore and Ohio Railroad, and shall further find that said horses and mule were on the railroad without the fault and negligence of the [**7]  plaintiff, or his agents, then the said railroad is responsible, and the plaintiff is entitled to recover the value of said property, unless they are satisfied the killing was the result of an unavoidable accident.

The plaintiff excepted to the instructions of the court as given, and to the refusal of the court to grant the instruction prayed for by him, and the verdict and judgment being in favor of the defendant, appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

Statutes are to be construed in reference to the principles of the common law, for it is not to be presumed that the Legislature intended to make any innovation further than the case absolutely requires; the law rather infers that the Act did not intend to make any alteration, other than what is specified, and besides what has been plainly pronounced.

The well settled principle of the common law, that a plaintiff is not entitled to recover for injuries to which his own fault or negligence has directly contributed, is not abrogated by the several Acts of Assembly, regulating the liability of railroad companies in this State, for stock killed or injured by their trains.

These Acts leave the question of negligence on the part of the plaintiff where it was at the common law, and do not confer upon a party, who is himself a wrong doer, the right to obtain redress for the consequences of his own negligence or misconduct.

By the common law, in order to maintain an action against a railroad company for injury to stock, it was incumbent on the plaintiff to prove that the damage resulted from the fault or negligence of the defendant or its agents; this has been changed by the Acts of Assembly, which cast the onus of proof on the defendant.

When stock is killed by a railroad train, the law imputes negligence to the agents of the company, and in order to exempt itself from liability it must be shown, that the damage complained of was the result of unavoidable accident.

By this law the Legislature did not intend to interfere with the time-tables of the company, or to limit the rate of speed for the trains; while the Act leaves the company in the full exercise of its rights in this respect, it imposes upon them the duty of exercising the highest degree of care and caution.

In the absence of fault or negligence on the part of the plaintiff, the exemption of the company depends upon its being proved, that the collision took place without any fault or negligence on the part of its agents.

A prayer, that if the jury find that the stock was upon the road without any fault of the plaintiff or his agents, and was killed by the defendant's cars, then the plaintiff is entitled to recover its value, unless the jury are satisfied such killing was the result of unavoidable accident, is correct, there being evidence on which to base it.

A judgment will not be reversed on account of the rejection of a prayer, correct in itself, if the same proposition be embraced in another instruction which was granted.

The question of negligence on the part of the plaintiff, as well as on the part of the defendant, is a proper subject for the jury to pass upon.

It is error to grant an instruction where there is no evidence in the cause upon which it could be based.

Where a corporation was sued by a wrong name, but process was served on its agents, and it appeared by counsel and executed releases to witnesses sworn for the defendant, and no objection was made in the court below on account of the misnomer, the objection cannot be availed of in this court.  

COUNSEL:
Daniel Clarke and Thos. G. Pratt, for the appellant:

The objection, that the suit was brought against the company by the wrong name, cannot be maintained. The Baltimore & Ohio Railroad Co. was summoned, appeared, pleaded, and executed releases to make their agents, the conductor and engineer, witnesses. They could have taken advantage of the misnomer by plea, or by raising the question of variance at the trial, but as they did neither, they cannot now take advantage of it. 8 Gill, 240, Alexander vs. Walter. A misnomer cannot be pleaded in this court.

A prayer which leaves to the jury the finding of a fact of which there is no evidence, is erroneous. 4 Md. 454, Long vs. Eakle. The first and second [**8]  instructions granted by the court, are liable to this objection. There is no evidence that the horses and mule were on the track of the road through any negligence on the part of the plaintiff, or that they had stayed on the road through any defect in fences, or leaving gates open. Again, where the court grants inconsistent instructions, it is error. The fourth instruction is utterly inconsistent with the others, and where the instructions are inconsistent, or if some are wrong and some right, or if any one be wrong, there must be a reversal.

But the first, second and third instructions are clearly wrong. They announce the propositions that if the stock was on the road through any negligence of the plaintiff, or without the fault or negligence of the defendants, then the plaintiff is not entitled to recover, though the jury may believe that the stock was on the road without any fault or negligence of the plaintiff, and that it was killed willfully and intentionally by the company, for the reason (assigned by the court) that the plaintiff was bound to keep his stock upon his own premises, and within his enclosures. Now, even at common law, the defendants had no right to kill stock [**9]  trespassing upon their premises. They had the right to impound them, or sue for damages, but not willfully and wrongfully to kill them. 3 Bl. Conn., 211. 4 Texas, 492, Ford vs. Taggart. 14 Conn., 1, Johnson vs. Patterson. Not every default on the part of the plaintiff will justify a defendant in his acts of trespass. Where there is a mixture of negligence, so that the line of distinction cannot be drawn as to whose negligence directly contributed to the injury, the plaintiff cannot recover, but where the negligence of the defendant is proximate, and that of the plaintiff remotely, the cause of the injury, he can recover. 11 East., 60, Butterfield vs. Forrester. 3 Mees. & Wels., 244, Bridge vs. Railway Co. 10 Mees. & Wels., 546, Davies vs. Mann. 4 Bing., 628, Bird vs. Holbrook. 1 Adol. & Ellis N. S., 30, Lynch vs. Nurdin. Applying the rules of these authorities to railroad cases, the mere fact of trespassing is not such a direct contribution to the injury as will prevent a recovery on the part of the plaintiff. 19 Conn., 566, Beers vs. Housatonuc R. R. Co. 24 Verm., 487, Trow vs. Vermont Central R. R. Co. 25 Verm., 150, Jackson vs. Rutland & Burlington R. R. Co. 25 Ala., 229, Nashville [**10]  & Chattanooga R. R. Co. vs. Peacock. 3 Ohio State Rep., 172, Kerwhacker vs. Railroad Co.

Again, the law of these instructions is wrong, under the statute laws of this State. Where injury to property occurs by fire, caused by a railroad train, the Act of 1837, ch. 309, declares that the railroad company "shall pay damages to the owner of the property equal to the injury to his property." The obligation of the company is absolute, and entirely independent of all questions of care and diligence on their part, or the want of care on the part of the owner of the property. By this statute, the common law rules upon the subject are entirely abrogated, and whilst it remained in full force, a plaintiff, upon proof of loss by fire, caused by the company, and the amount of such loss is ex vi statuti entitled to recover that amount.

Prior to the Act of 1838, ch. 244, for all injuries to property by railroad companies, except those caused by fire, the parties injured were left to their common law remedy. By this Act it is declared, "that the several railroad companies in this State shall be responsible for injuries inflicted upon any stock, as cattle, horses, &c., or by fire occasioned [**11]  by their engines upon any of their roads, or the branches thereof." If the law had stopped here, the liability of these companies for all injuries to the descriptions of property embraced in the Act, would have been absolute, and the party in a suit for stock killed, upon proof of the injury, would necessarily recover the value of the stock. The only questions open would be, was the stock killed by the railroad? and secondly, what was its value? This absolute responsibility of the company is restricted alone by the limitation of that responsibility, declared by the succeeding clause of the Act. The clause already adverted to, makes the company absolutely responsible; the restriction is, that this absolute responsibility shall continue, "unless said company can prove that the injury complained of, has been committed without any negligence on the part of said company, or their agents." This statutory exemption from the responsibility imposed by the Act, is not as assumed in the instructions of the court, that the railroad company is responsible, unless the owner can prove that his stock was on the road without fault on his part, by reason of defective fences, or open gates, or his omission [**12]  to keep his stock on his own premises; but it is on the contrary, that the company shall be responsible, "unless the company can prove that the injury has been committed without any negligence of the company, or its agents."

At common law, to enable a party to recover for the killing of stock by a railroad, he must prove that the stock was killed by the negligence of the company, or its agents. The burden of proof rests upon the plaintiff, and unless he can establish that the killing was the result of negligence on the part of the company, he cannot sustain his action. By the Acts of 1838, ch. 244, and 1846, ch. 346, the common law rule is repealed, and the burden of proof is changed. The railroad company shall be responsible, "unless the said company can prove that the injury complained of has been committed without any negligence on the part of the company, or its agents." By these provisions of the statute law, the sole thing which will exempt the company from liability, is: 1st, proof that the injury was committed without any negligence on the part of the said company, or its agents; or, 2nd, proof that the killing was the "result of unavoidable accident." To adopt the instructions [**13]  of the court below as law, operates a total repeal of the statute. The statute establishes the only mode by which the company can be relieved from this responsibility. The law, as announced by the court below, fixes a new test of the liability of the railroad company, and exempts it from responsibility, "if the stock were upon the track through any negligence on the part of the plaintiff, or his agents, to keep them within his close, or if the stock were on the railroad without the fault or negligence of the company, or its agents." If this construction be right, it amounts to a total exemption of railroad companies in this State from liability for injuries to stock. Because the stock can only be killed on the track of the railroad, and the only cases in which they could be there without the fault or negligence of the owner or his agents, upon the hypothesis of the law as announced by the court, are, 1st, where the stock are caught and held or driven upon the track, by the authority and direction of the railroad company; or, 2nd, where they stray upon the track through the negligence of some agent of the company, in leaving open a gate, or pulling down a fence, while engaged in the [**14]  employment of the company. If stock are upon the track in any other manner, they are trespassers, according to the ruling of the court below, and it is the fault of the owner or his agent, because he is bound to keep them within his close. Now the first case is scarcely supposable, and the second would be of such rare occurrence, that to limit the responsibility of railroad companies in this manner, would amount to their total exemption from responsibility; and the Acts of Assembly passed with the express view of increasing the responsibility of railroad companies thus construed, become the means of restricting their liability, and, in fact, of destroying it for any practical purpose.

The cases of 19 Pa. State Rep., 302; 11 Barb., 112; and 14 Barb., 364, and other cases holding a similar doctrine, were decided in those States where no statutes on the subject exist, and where the common law rule still obtains. They are, therefore, no authority in determining the construction to be given to the Acts of Assembly of this State. The principle and policy on which these decisions rest, are "the protection of the lives of the passengers from the most constant and imminent peril." But [**15]  even this object is defeated by the construction placed upon our Acts of Assembly by the court. If railroad companies are not responsible for injuries to stock, where they stray upon the track through the negligence of the owner, or without the fault of the company, then they may be guilty of any degree of negligence, however great, endanger the lives of passengers by running over stock, and still escape all liability for their acts. And thus the lives of the passengers are ever exposed to the "most imminent peril," because no responsibility attaches to the company to enforce, on their part, the exercise of reasonable care and diligence. The true rule, looking both to the interests of landholders adjoining railroads, and the protection of the travelling community, is that prescribed by our Acts of Assembly, which compels the company, in order to avoid liability, to prove that the injury was committed "without any negligence on the part of the company or its agents," or that "the damage sustained was the result of unavoidable accident."

The case of Lamborn, in 12 Md. 257, though seemingly in conflict with these views, will not, it is believed, upon a careful examination of [**16]  the facts upon which that decision rests, as disclosed in the bills of exception, be found to be inconsistent with them.

C. J. M. Gwinn, for the appellee:

It matters not whether a rail road company has title by grant, purchase or condemnation, in the bed of the road which it occupies. If it be in possession of the land by sufferance even, it has that degree of title which would enable it to maintain trespass against a stranger, (Viner's Abr. Trespass, No. 1,) and if that stranger owns cattle and suffers them, by his negligent keeping, to stray upon the land of another, (3 Bl. Comm., 211,) and that other be a railroad company, such man is a wrong-doer, and has committed an act of trespass. For every unauthorised intrusion into the land of another is a sufficient trespass to support an action for breaking the close, whether the land be actually enclosed or not, Bac. Abr., Trespass, F. There is no statutory obligation imposed on the Baltimore and Ohio Railroad Company to maintain fences upon the line of its track, and in such a case the rule of the common law is, "that I am bound to take care that my beasts do not trespass on the land of my neighbor, and he is only bound to [**17]  take care that his cattle do not wander from his land and trespass on mine." 1 Wms. Sand, 321, Pomfret vs. Ricroft. 12 Eng. Law & Eq. Rep., 524, Ricketts vs. Railroad Co., and same case in 74 Eng. C. L. Rep., 172. 93 Eng. C. L. Rep., 519, Roberts vs. Great Western Railway Co. 4 Excheq., 586, Sharrod vs. Railway Co. 71 Eng. C. L. Rep., 617, Fawcett vs. Railway Co. 6 Barn. & Cress., 329, Boyle vs. Tamlyn. This obligation on the proprietor of lands adjoining a railroad, to keep his cattle within his own enclosure, is also recognized in 29 Maine, 307, Perkins vs. Eastern Railroad Co. 5 Denio 255, Tonawanda Railroad Co. vs. Munger; and same case in 4 Comstock, 349. 11 Barb., 112, Clark vs. Syracuse & Utica Railroad. And the same rule has been conclusively recognized in this State in the case of the Balt. & Ohio R. R. Co. vs. Lamborn, 12 Md. 262.

With this law thus laid down, let us examine the exceptions in this case, although it will be necessary to consider also the difficulties which have arisen from the misnomer of the defendant.

The court knew, judicially, that there was no such public corporation as the "Baltimore and Washington Railroad Company," and that there could [**18]  not, therefore, be any evidence in this cause that the cattle were on the line of the road of such a company. It knew judicially that there was such a corporation as the "Baltimore and Ohio Railroad Company," because its charter is regarded as a public law, (6 Gill, 296,) and knowing its charter to be such public law, the court was bound to take notice of the existence and limits of the corporation created by such public law. 5 H. & J., 493, 499, Whittington vs. Farmers Bank. 2 H. & G., 493, Agnew vs. Bank of Gettysburg. Having this judicial knowledge of the non-existence of such a corporation as was named in the declaration, and such judicial knowledge of the existence and corporate limits of another company, as was sufficient to satisfy the court that it, in reality, was intended to be the defendant in the action, it could not grant the prayer of the plaintiff. Nor can it be urged that the court was prevented from exercising this judicial knowledge by the fact, that there was an appearance to the action and no plea of misnomer in abatement. It is conceded that under the old rules of pleading such a plea would have been necessary, but the Act of 1856, ch. 112, sec. 110, has altered [**19]  the law on this subject. For though sec. 109 of this Act authorises the court to amend the proceedings in the cause where the misnomer is pleaded, upon proof that the party summoned is the party against whom the suit was brought, yet sec. 110 leaves it discretionary with the defendant to determine whether he will or not plead the misnomer in abatement, and enables him to take advantage of the variance at the trial. The court possesses the same power at the trial as a party to the action, and when the court perceived that there was no evidence to show that the Baltimore and Washington Railroad Company had any thing to do with the act complained of in the declaration, but that the Baltimore and Ohio Railroad Company was, in reality, the aggressor, if any tort had been committed, it rejected the prayer of the plaintiff because of the variance between the pleading and the proof, and because, by reason of such variance, there was no evidence to sustain the prayer of the plaintiff. But while the court rejected this prayer, as framed, it gave the plaintiff the benefit of it in its application to the real defendant; for the fourth instruction given by the court is substantially the instruction [**20]  prayed for by the plaintiff, only it is embodied in terms more favorable to the plaintiff than his own prayer.

The first and third instructions of the court embody the opinion, heretofore shown to be fully sanctioned by the law of this State, that the cattle of the plaintiff were trespassers the moment they entered upon the railroad track of the defendant. Attention is, however, again called to the particular language of the decision in 12 Md. 262: "By the common law, an owner of cattle is bound to keep them in an enclosure, or in custody, at his peril, for every entry by them on another's possession is a trespass; and this is the law of Maryland, and applies as well to the intrusion of cattle and horses on the land over which a railroad company is entitled to its franchise, as to the property of a private owner." Where cattle are thus suffered to stray beyond the control or enclosure of the owner, his negligence is first in date; and if the cattle are killed while trespassing on a railroad track, even if the negligence of the servants of the railroad company contribute to the disaster, there can be no recovery by the owner of such cattle. For, independently of the special [**21]  rules applied to the case of cattle, there is a broad general rule, that no person can recover for injury done to his person or property, to which his own negligence has directly contributed. 1 Eng. Railway Cases, 611, Bridge vs. Railway Co. 8 Carr & Payne, 373, Woolf vs Beard. Ibid., 473, Hawkins vs. Cooper. 6 Whart., 321, Simpson vs. Hand. 19 Wend., 401, Rathburn vs. Payne. 21 Wend., 189, Barnes vs. Cole. Ibid., 619, Hartfield vs. Roper. 5 Hill, 282, Brownell vs. Flagler. 19 Conn., 566, Beers vs. Housatonuc Railway Co. 14 Barb., 364, Marsh vs. N. Y. & Erie R. R. Co. 22 Barb., 586, Terry vs. N. Y. Central R. R. Co. 9 Fost., 9, Murch vs. Concord R. R. Co. 19 Penn., 302, N. Y. & Erie R. R. Co. vs. Skinner. 23 Penn., 147, Railroad Co. vs. Aspell. 30 Penn., 454, Reeves vs. Del. & Lackawanna R. R. Co.

The second instruction differs from the first only in this, that it indicates to the jury the particular duty in regard to enclosures, which the law imposes on a proprietor of land owning cattle, in order to exonerate him from the blame of prior and contributing negligence, if any disaster happen to his cattle.

Whatever may be said of the fourth instruction, it certainly cannot [**22]  be complained of by the appellant. It tells the jury, in effect, that if they are satisfied the Baltimore and Ohio Railroad Company was the cause of the death of these cattle, that their negligence is a presumption of law, and if they are satisfied that no negligence has been proved against the plaintiff, the plaintiff was entitled to recover in that action, though brought prima facie against a different defendant, unless they are satisfied that the killing was the result of an unavoidable accident. A ruling more likely to operate against the defendant, could not well be imagined. It, in fact, gave the instruction asked for by the plaintiff, with a wider scope of application. With such an instruction, the plaintiff had no cause to be dissatisfied. It placed his rights in a more favorable aspect before the jury than he was entitled to, and he cannot ask a reversal for any such error in this ruling of the court below. 11 Md. 451, Pettigrew vs. Barnum. 2 Md. 73, Keener vs. Harrod & Brooke. 4 Md. 306, Greenway vs. Turner. 10 G. & J., 354, Planters Bank vs. Bank of Alexandria. 14 Md. 424, Balt. & Ohio R. R. Co. vs. Resley.  

JUDGES:
The cause was argued before LE GRAND, C. J.  [**23]  , TUCK, BARTOL and GOLDSBOROUGH, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*45]  BARTOL, J., delivered the opinion of this court:
The several Acts of Assembly, regulating the liability of railroad companies in this State, for stock killed or injured by their trains, have been before this court on former occasions, when considerations of public policy and private right were duly weighed and determined. We see no reason for disturbing what was then deliberately settled.
In the case of The Balt. & Ohio R. R. Co. vs. Lamborn, 12 Md. 257, we adverted to the well settled principle of the common law, that a plaintiff is not entitled to recover for injuries to which his own fault or negligence has directly contributed, and we said that this rule applies as well to suits against railroad companies as private individuals, and is not abrogated by the Acts of 1838, ch. 244, and 1846, ch. 346. To adopt the construction of these Acts, contended for by the appellant, would entitle a party to recover damages for stock killed by a railroad train, although it should be shown that the accident resulted from the grossest carelessness on his part, or that he voluntarily turned them loose upon the [**24]  railroad track when a train was passing. We cannot impute such intention to the Legislature, nor can it be found in any reasonable construction of the Acts of Assembly. It is a cardinal rule of interpretation, that "Statutes are to be construed in reference to the principles of the common law, for it is not to be presumed that the Legislature intended to make any innovation upon the common law, further than the case absolutely required. The law rather infers that the Act did not intend to make any alteration, other than what is specified, 

 [*46]  and besides what has been plainly pronounced." Dwarris, 695. See, also, 1 Kent's Com., 464, m., (7th Ed.) Hooper vs. Mayor & City Council of Baltimore, 12 Md. 464.
Guided by this rule of interpretation, we can give no other construction to these Acts of Assembly than that which we have heretofore declared. They leave the question of negligence, on the part of the plaintiff, where it was at the common law, and do not confer upon a party, who is himself a wrong-doer, the right to obtain redress for the consequences of his own negligence or misconduct. By the common law, in order to maintain an action [**25]  like the present, it was incumbent on the plaintiff to prove that the damage complained of resulted from the fault or negligence of the defendant, or its agents. This has been changed by the Acts of Assembly. They cast the onus of proof on the defendant. When stock is killed by a railroad train, the law imputes negligence to the agents of the company, and in order to exempt itself from liability, it must be shown that the damage complained of was "the result of unavoidable accident." In construing these words of the Act, we will remark, that we do not understand the Legislature as intending to interfere with the time-tables of the company, or to limit the rate of speed for the trains. While the Act leaves to the company the full exercise of its rights in this respect, it imposes upon them the duty of exercising the highest degree of care and caution. These principles were announced in Lamborn's case, in which this court said, the question of the fault or negligence of the plaintiff, was a subject proper to be passed upon by the jury.
As some erroneous impressions appear to have grown out of the decision of that case, it may not be amiss to advert to some of its facts, which [**26]  distinguish it from the case now under consideration. The record disclosed that Lamborn was the owner of land adjoining the railroad, that the horse was standing on the line of the road, near the track, and as the cars approached, he ran upon the track, and was overtaken and killed by the locomotive. No explanation was given of 

 [*47]  the circumstance, or any evidence to show that the horse was in charge of any one, or to relieve the plaintiff from the imputation of negligence, which might be presumed from the facts of the case.
The facts contained in the bill of exceptions before us, on which the rulings of the circuit court were made, are as follows: "The plaintiff proved that his horses and mule (mentioned in the declaration) were killed by the collision of the cars on the railroad, and the value of the property, and further offered evidence tending to show that they were upon the road without the fault of the plaintiff, or his agents, and also tending to show that they were killed by the defendants, through the negligence of their agents, the conductor and engineer, having charge of the train which caused the loss. The defendants then offered evidence tending to show the use [**27]  of the greatest care and diligence on the part of its agents."
Upon this evidence, we think the prayer asked by the plaintiff correctly stated the law, and ought to have been granted; but the judgment would not be reversed on account of its rejection, because the same proposition was embraced in the fourth instruction given to the jury. We find no error in the first instruction given by the circuit court. These instructions (the 1st and 4th) submitted to the jury the question of negligence on the part of the plaintiff, as well as on the part of the defendant, which was a proper subject for them to pass upon.
We think there was error in the second instruction, there being no evidence in the cause upon which it could be based. A similar prayer in Lamborn's case was ruled good, because there was evidence to support it.
The third instruction was also erroneous, because, as interpreted by the appellant, it directed the jury that the defendant was not responsible, if the horses and mule were on the track of the railroad without any fault or negligence of the defendant, or its agents: whereas, in the absence of fault or negligence on the part of the plaintiff, the exemption of the [**28]  company depends upon its being proved that the collision 

 [*48]  took place without any fault or negligence on the part of its agents. This third instruction appears to have been copied from the fourth prayer in Lamborn's case. But when that case was under consideration, the 4th prayer did not receive, either from the counsel who argued the cause, or from the court, the construction which has been given to it by the appellant, in his argument here. It was construed as if the words "without the fault or negligence of the defendant," were meant to apply to the killing, and not to the horse being on the track; by transposing those words, or by a change in the punctuation, they might be so construed, and then the prayer would be free from objection.
It is plain, however, that the phraseology of the third instruction in the record before us, is susceptible of the interpretation put on it by the appellant, and calculated to mislead the jury.
Our attention has been called by the appellee, in his argument, to the fact, that this suit was instituted against the Baltimore and Washington Railroad Company, and that there is no corporation in this State of the name of the defendant.  [**29]  The real name of the corporation intended to be sued, is the Baltimore and Ohio Railroad Company. The record shows that the service of process was on the agents of this company, that it appeared by counsel, and executed releases to witnesses sworn for the defendant, and that no objection was made in the court below on account of the misnomer of the defendant. Under these circumstances, we are of opinion that the objection cannot be availed of in this court. Although the defendant is precluded from the benefit of this objection on this appeal, yet it is manifest that a judgment recovered against the defendant named in the record, would be of no avail, and could not entitle the plaintiff to enforce payment by execution against the Baltimore & Ohio Railroad Company. This difficulty, however, could be obviated by an amendment, upon a retrial of the cause.
Judgment reversed and procedendo ordered. 

68 of 196 DOCUMENTS 

NORTHERN CENTRAL RAILWAY COMPANY vs. THE STATE OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

17 Md. 8; 1861 Md. LEXIS 10 

February 25, 1861, Decided 

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

Action brought on the 10th of November 1860, by the appellee against the appellant, to recover arrears of an annuity of $ 90,000, which the company stipulated to pay to the State by its mortgage of the 27th of January 1855, executed under the provisions of the Act of 1854, ch. 260.

The covenant declared on, and the stipulations of the mortgage, as well as the pleadings in the case, are fully stated in the opinion of this court. The account filed with the mortgage claims quarterly instalments of $ 22,500 each, due respectively on the 27th of October 1859, and the 27th of January, April and July, 1860, reduced by a payment of $ 10,000 made on the 23rd of August 1860. During the progress of the suit there was a further credit directed to be allowed of $ 10,000, paid on the 22nd of October 1860.

The court below (MARTIN, J.) sustained the plaintiff's demurrer to the defendant's plea, and gave judgment for $ 70,701.68 in favor of the plaintiff, from which the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The Northern Central Railway Co. executed a mortgage of its road to the State, under the provisions of the Act of 1854, ch. 260, which contains a covenant to pay the State an annuity of $ 90,000, payable in quarterly instalments, commencing from the date of the mortgage, in the manner required by the provisions of that Act. This mortgage also contains a proviso, that until default is made in the payment of said annuity or some part thereof, "and until three months subsequent to a default of the company to pay the whole amount of said annuity which may fall due in any one year," the company shall quietly enjoy the road, &c., "without any lawful let, suit, interruption, disturbance, claim or demand whatsoever," by the State or any one lawfully claiming under it. HELD:

1st. That the failure to pay any quarterly instalment is a breach of the covenant, which gives the State an immediate right of action therefor, unless that right is limited or controlled by the subsequent proviso.

2nd. The Act of 1854, ch. 260, though it may not avoid the proviso, may yet be properly referred to, to aid in the construction of the meaning of the mortgage where its terms are equivocal in their import.

3rd. But by the mortgage itself, and construing its terms according to their fair and reasonable import, the default in paying the whole amount, &c., is equivalent to saying, if the whole amount be not paid in any one year, and does not import that a whole year's annuity must be in arrear for three months before the State can sue.  

COUNSEL:
J. Mason Campbell, for the appellant:

The defence set up in the plea was good and sufficient to defeat the action, The [**2]  plaintiff's claim is based solely on the mortgage filed with the declaration, and upon its terms the plaintiff's case must stand or fall. Among others that mortgage contains this proviso: "Provided always, that until default is made in the payment of the said annuity of $ 90,000 a year, or some part thereof, and until three months subsequent to a default of the company to pay the whole amount of said annuity which may fall due in any one year, it shall and may be lawful to and for the Northern Central Railway Company aforesaid, to hold and enjoy the said railroad and other the premises hereby granted and sold, or intended and meant so to be, and the income, profits and produce thereof, to receive and to take to its own use, without any lawful let, suit, interruption, disturbance, claim or demand whatsoever, of, from or by the State of Maryland aforesaid, or any person or persons lawfully claiming or to claim by, from or under the said State."

This provision, it is insisted, prevented the State from instituting any suit upon the covenant to pay in the mortgage, until a whole year's annuity had been in arrear three months. The plaintiff's claim as stated will show that this period [**3]  had not arrived when the suit was brought. By that statement only $ 80,000 was due, being $ 10,000 short of the amount of whole year's annuity; and after this statement was made, but before the suit was instituted, a further payment of $ 10,000 was made by the defendant, so that the amount actually due when the suit was brought, was $ 20,000 less than the amount required by the terms of the mortgage to be in arrear, to warrant a suit by the plaintiff. For this reason the judgment ought to be reversed and the plaintiff's action defeated.

Thos. S. Alexander, for the appellee, argued:

1st. That the State may sue for the recovery of a quarterly instalment of the annuity covenanted to be paid immediately after default made in payment thereof, on the day appointed for payment.

2nd. That immediately after the expiration of any year, that is, the 27th of January in any year, the State may sue for any arrear of annuity which accrued due in the year and remains unpaid.

3rd. That on either hypothesis the judgment must be affirmed, since the plea goes to the entire cause of action.  

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

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [**4]  
 [*11]  GOLDSBOROUGH, J., delivered the opinion of this court:
The action in the above case is brought to recover the arrears of an annuity of $ 90,000, which the company stipulated to pay to the State, by its mortgage, executed on the 27th of January 1855.
The covenant declared on is in these words: "And the Northern Central Railway Company aforesaid, doth hereby covenant, promise and agree, to and with the State of Maryland aforesaid, by these presents, that it, the said company, shall and will well and truly pay or cause to be paid unto the State of Maryland, an annuity of ninety thousand dollars a year, payable into the treasury of the said State, in quarterly payments, commencing from the date of the execution of this indenture or mortgage, in the manner provided and required by the provisions of the said Act of January session 1854, ch. 260." The defendant pleaded "that by the true construction of the said mortgage, the State of Maryland is precluded from instituting suit for any default, except when the whole amount of the annuity due in any one year has been due and unpaid by the space of three months, and that such amount was not so due at the time of the institution [**5]  of this suit."
To this plea the plaintiff demurred. The defendant joined in demurrer, and the plaintiff obtained judgment thereon. Upon this judgment the defendant appealed to this court.
We approve of the judgment of the court below. The State of Maryland being a large creditor of the Baltimore and Susquehanna Railroad Company, and having its rights secured by liens, consented to abandon those liens at the instance of the appellants, upon the condition that the appellants would execute the mortgage mentioned in the record. This arrangement was doubtless resorted to by both parties, in view of mutual benefits arising to them respectively:--to the appellants, by the consolidation sought to be effected, and to the appellee, by the punctual payment of the annuity agreed upon, according to the terms of the mortgage.
The mortgage contains a stipulation "that until default is made in the payment of the said annuity of ninety thousand dollars a year, or some part thereof, and until three months 

 [*12]  subsequent to a default of the company to pay the whole amount of said annuity which may fall due in any one year, it shall and may be lawful to and for the Northern Central Railway Company [**6]  aforesaid, to hold and enjoy the said railroad and other the premises hereby granted and sold, or intended and meant so to be, and the income, profits and produce thereof, to receive and take to its own use, without any lawful let, suit, interruption, disturbance, claim or demand whatsoever, of, from or by the State of Maryland aforesaid, or any other person or persons lawfully claiming or to claim by, from or under the State."
We have set out at large this provision of the mortgage, because upon it has been based the whole argument of the appellant, who insists that by its terms "the State was prevented from instituting any suit upon the covenant to pay in the mortgage, until a whole year's annuity had been in arrear three months."
By adverting to the covenant upon which the suit is brought, it will be seen that the obligation upon the company is to pay into the treasury $ 90,000 a year, in quarterly payments, from the date of the mortgage. The failure to pay any quarterly instalment, is a breach of the covenant, which entitles the covenantee to maintain a suit upon the covenant. In support of so plain a proposition we need cite no authority; nor do we understand it [**7]  to be denied by the appellant. But this right of action is supposed to be controlled or taken away by the terms of the stipulation for quiet enjoyment by the mortgagor, in the mortgage recited.
In the opinion of this court, the construction put upon this last clause in the mortgage, cannot be supported. If we advert to the provisions of the Act of Assembly referred to in the mortgage, and in conformity with which it purports to have been executed, it is clear that such a construction of the instrument finds no sanction in the Act of Assembly. While the power of sale is not to be exercised until after the lapse of three months subsequent to default made in paying the whole of the annuity falling due in any one year, it is plain, from the Act of Assembly, that the intention of the Legislature 

 [*13]  was to require a mortgage containing such covenants and provisions as would compel the payment of the annuity in quarterly payments; and a covenant to that effect is contained in the mortgage. That is a distinct and independent covenant, a breach of which, as we have said, would give an immediate right of action to the mortgagee; unless that is limited and controlled by the subsequent [**8]  stipulation relied on by the appellant.
This last provision was not prescribed by the Act of Assembly; and although we may not, for that reason, pronounce it void, or disregard its legal effect in a proceeding like this, (but upon this question we pronounce no opinion,) yet we may properly refer to the Act of Assembly, to aid us in construing its meaning, when its terms are equivocal in their import.
But confining ourselves to the mortgage, and construing its terms according to their fair and reasonable import, we are of opinion that they do not justify the interpretation which the appellant has put upon them. The words are: "Provided always, that until default is made in the payment of the said annuity of $ 90,000 a year, or some part thereof, and until three months subsequent to a default of the company to pay the whole amount of said annuity which may fall due in any one year," &c.
Now a default in paying the whole amount, &c., is equivalent to saying, if the whole amount be not paid in any one year, and does not import that a whole year's annuity must be in arrear for three months. According to the account filed in the record, it is manifest that all the instalments claimed [**9]  were due and in arrear for three months before suit brought; so that in any view of the case, the plea could not be sustained.
In the argument of the case, the appellant waived the other grounds of defence in his brief, and relied solely on the matter presented by the plea.
We have, therefore, confined ourselves to the examination of that single question; and concurring with the ruling of the Superior Court upon the demurrer, the judgment is affirmed.
Judgment affirmed. 

69 of 196 DOCUMENTS 

MATILDA E. GREEN vs. DANIEL CAULK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 556; 1861 Md. LEXIS 7 

February 20, 1861, Decided 

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

Action, brought on the 28th of October 1857, by the appellee against the appellant to recover for work and materials done and furnished by the plaintiff to the defendant, in the repair of her house in Annapolis, during the years 1854 and 1855. Three several bills of particulars of various items were filed by the plaintiff, No. 1 for carpenter's work, amounting to $ 2195.65, No. 2 for lumber and materials, amounting to $ 1058.31, and No. 3 for tin roofing, amounting to $ 341.14, and No. 4 for hardware and hauling, amounting to $ 154.91. These bills state that they were "measured, estimated and valued, Oct. 11th, 1858, by William Q. Caldwell." The case was tried in January 1859.

1st Exception. The plaintiff proved by John Wiggins, a journeyman carpenter employed on the work, that in 1854 and 1855, the plaintiff repaired defendant's house from cellar to garret, and did work on additional buildings erected for her, and supplied the materials therefor, and in witness' opinion the carpenter's work was worth about $ 2000, and the materials about $ 1000 exclusive of the tin work. The plaintiff then further offered to prove by [**2]  Thomas A. Mitchell, that he was employed by plaintiff to do, and did, the tin roofing and spouting to the house, and furnished materials therefor, and that said work was worth more than $ 300. The defendant objected to witness' speaking of the value of all the tin work done, insisting that, as the plaintiff had filed a bill of particulars, he must confine his proof of value to the work described in such bill, and could not offer proof of the value of any work not specified therein. The plaintiff thereupon waived this evidence of value, and then handed to witness bill of particulars No. 3. Witness stated that the paper was not in his handwriting but in that of Caldwell, and that he identifies the work there charged as the work done by him, and measured by Caldwell, under his supervision, and being asked by plaintiff's counsel whether in his opinion the charges in that bill are fair, and what is the amount thereof, the defendant objected to the question, and, the witness, in answer to another, having said that he cannot state from his recollection, even after looking at said bill, that all the articles charged therein were furnished and the work done as charged, the defendant thereupon [**3]  insisting upon her aforesaid objection, the court (BREWER, J.) decided that the question was proper and permitted it to be put, and witness, in answer thereto, stated that the charges in said bill were, in his opinion, fair, and that they amounted to $ 341.14. To this ruling of the court, and the evidence given under the same, the defendant excepted, and prayed the court to sign this, her first bill of exceptions, which is done, though said bill of particulars was afterwards read to the jury by defendant, as will appear by the subsequent exceptions.

2nd Exception. The plaintiff then called Wm. Q. Caldwell, and proved by him that he is a measurer of all kinds of mechanical work; that he came to Annapolis from Baltimore last fall at the instance of Daniel M. Sprogle, to measure all the work done on defendant's house; that he found it was an old house which had been repaired, and proceeded to measure the carpenter's work in presence of plaintiff, Wiggins, and defendant, that Wiggins and plaintiff pointed out the work which had been done, and defendant objected to some portions pointed out, as not being part of the work done; witness then said he would put such work down as disputed [**4]  work, but defendant objected to his putting it down at all, as it had not been done by plaintiff, and witness then said he would omit such disputed items altogether, and that said bill of particulars was not made by defendant's agreement or consent. Plaintiff's counsel then offered to witness bill of particulars No. 1, and asked him to say whether the same was a statement of his measurements and valuations of said work? Witness, having first stated that this bill was in the handwriting of his son, made out several days after witness completed the measurements, that the measurements were all set down in his "Dimension Book," which was then in his possession, and handed by him to the defendant's counsel, at their request, that said bill No. 1 was made by his son from the Abstract which was made out partly by witness and partly by his son under his superintendence, from the "Dimension Book," that he could not say that this bill was an exact copy from the "Abstract," or corresponded in all particulars therewith, as the "Abstract" might contain errors and discrepancies, that the "Abstract" is now at his house in Baltimore, made out in bill form in a book, that he thinks that the footings [**5]  in said "Abstract," of the dollars and cents, were taken from the said bill of particulars, No. 1, and transferred to the "Abstract," and afterwards said, he believed he compared said bill of particulars with the "Abstract," before he left Baltimore, and found it to agree with it in substance, the defendant thereupon objected to said question being put or answered by the witness, but the court overruled this objection, and was of opinion, and so ruled, that said question might be put and answered by the witness, and it was accordingly answered by him in the affirmative. The witness further stated that the bill of particulars was the only perfect paper made out, and that he regarded it as the original statement; that the "Dimension Book" was a loose paper, requiring many calculations, which were in part made by his son, who was his clerk, and partly by himself, and all examined by him, and the results transferred to the "Abstract," which was also examined by him, and copied by his son, which copy is the bill of particulars No. 1, which was also examined by him, compared with the "Abstract," and found to be correct. To which rulings of the court, and evidence so given, the defendant [**6]  excepted, and prayed the court to sign this, her second bill of exceptions, which is done, although the said bill of particulars No. 1 was afterwards read to the jury by defendant, as will appear by a subsequent exception.

3rd Exception. Plaintiff's counsel then handed to the witness, Caldwell, bill of particulars No. 4, and witness proved that plaintiff, in presence of defendant, stated he had furnished all the hardware for the repairs of her house, which was not denied by her, and witness made a valuatian of the hardware shown to him by the plaintiff as having been so furnished, that the paper now shown witness, is in the handwriting of his son, and was made out in like manner and under like circumstances, as bill of particulars No. 1, already given in evidence, and said evidence was permitted to go to the jury, subject to the exceptions already taken to the admissibility of bill No. 1. The plaintiff's counsel then desired witness to state, from said paper, such items therein mentioned as he remembered, but defendant objected to the question, which objection the court overruled and allowed the paper to be used by the witness to refresh his memory as to the character and quality [**7]  of such items of hardware so furnished, as he remembered having measured, and the same were stated by him accordingly, to which ruling and evidence the defendant excepted, and thereupon plaintiff's counsel desired witness to look at the valuation of the several items of hardware, as stated in said paper, and to say what were the reasonable values of the several particulars included in said bill from his own knowledge and not from said paper alone, the defendant thereupon objected, but the court overruled the objection and permitted the witness to inspect the several values of said particulars as stated in said bill, to which ruling the defendant excepted, and thereupon the witness, having inspected said paper, proceeded to state what were the values of the several articles of hardware so furnished, and, amongst others, stated that nails in 1854 and 1855, were worth about $ 6 per hundred. The witness stated further, that it was his habit, at the time of making his measurements and valuations, to make inquiries as to the value of the materials furnished which he was required to measure and value, of persons supposed by him to be competent to give him information on the subject, and who [**8]  were in the habit of buying and selling the same, and that at the time of making the appraisement in question, he did make inquiries as to what was the value of nails at the time they were so furnished, and that his valuation thereof, and his present evidence, are based upon information so obtained. To the admissibility of which evidence the defendant objected, but the court overruled the objection and permitted the said evidence to be given to the jury, and it was given accordingly. To which ruling and evidence the defendant excepted, and prayed the court to sign and seal this her third bill or exceptions, which was accordingly done.

4th Exception. The plaintiff then placed in the hands of the witness, Caldwell, a book, which witness then identified as his "Abstract Book," of which he had spoken in his evidence already given, and asked witness whether the entries in that book, in reference to his measurements, made at defendant's house, correspond with the entries thereof in the bill of particulars No. 1, to which question the defendant objected, but the court overruled the objection and allowed the question to be put, and witness answered that they did correspond in their results [**9]  and in the carrying out or result. To which ruling of the court and evidence, offered as aforesaid, the defendant excepted, and prayed the court to sign and seal this her fourth bill of exceptions, which is done, although the said abstracts and paper were afterwards read to the jury by the defendant, as will appear by subsequent exceptions.

5th Exception. The witness, Caldwell, then examined his "Abstract Book," as desired, and compared the entries therein of his measurements and valuations of the work done by the plaintiff on the defendant's house, as already given in evidence, with the bills of particulars, filed by the plaintiff in this cause, and which bills had already been used by the witness in his examinations aforesaid, and after such examination and comparison, in answer to the plaintiff's inquiries, proved that the entries in the "Abstract Book" agreed in the results with the corresponding items in the bills of particulars. The witness then being cross-examined in relation to the matters, the subject of his examination-in-chief, stated that, even after his inspection of the said bills of particulars, his recollection of the measurements made by him was not so distinct [**10]  as to enable him, without the aid of said bills, to say what were the descriptions and particulars of the work measured by him, and that his evidence in relation to said measurements was given, as before stated, upon his general recollection of the work, and his confidence in the accuracy of his aforesaid bills, made out by him and referred to by him as aforesaid, and that in his evidence as aforesaid, he stated the quantities and descriptions of the work measured from said bills. He was then asked to turn again to the entries in his "Abstract Book" of his aforesaid measurements, to which he had already referred at the instance of the plaintiff, and to the headings thereof, and to read the said entries of measurements and the headings thereof to the jury, and did read the same to the jury. [The headings upon the several pages of the book, so read, are: "Mrs. Matilda E. Green, Dr. to Sprogle & Caulk," except in one instance, where such heading was erased and reference made to another page, where it was entered, "Matilda E. Green, Dr. to Daniel M. Sprogle."] And the witness further proved, that some of the entries and headings are in the handwriting of his son, and that one of the [**11]  headings was first made by his son and afterwards corrected and altered by witness, and other of the headings and entries were made by witness, and that other entries of his son were also corrected by witness, and that some of the original entries were made by witness, and that it is a book of the witness. The plaintiff, then further examining the witness in chief, proved that a reasonable deduction from the bills prepared by him would be 33 1/3 per cent., and that in Baltimore the deduction would be 40 per cent., and further proved, that witness had measured work in Annapolis for four several persons, and the plaintiff then asked him what reduction was made from his valuation for the work done for one of said persons, viz., James Iglehart, to which question the defendant objected and the court sustained the objection. The plaintiff then asked the witness to explain his reason for making the headings in his "Abstract Book," as for work done for defendant by Sprogle and Caulk, to which question defendant objected, and the question being submitted to the court, the judge inquired of defendant's counsel whether they offered to read the heading of the "abstract" to the jury as part of [**12]  the cross-examination, and said, if offered as part of the cross-examination the court did not consider it admissible, and defendant's counsel replied that they would offer it in chief. The judge then asked for what purpose it was so offered, if it was offered to prove partnership between the plaintiff and Sprogle, and they replied it was offered for that purpose. The plaintiff then (a few moments only having elapsed since the headings and entries were read to the jury) objected to the admissibility of the headings for that purpose, which objection the court sustained, and thereupon the defendant excepted, and prayed the court to sign and seal this her fifth bill of exceptions which was accordingly done.

6th Exception. The counsel for the defendant then stated that it had not been, and was not their intention to waive their right to rely on these headings and other entries in the "Abstract Book," as evidence offered on the part of the plaintiff, and their right to cross-examine the witness in reference to said matters for all the purposes of the defence, and in order to avoid all misapprehension on the subject, they proposed to recall the witness, and to place the "Abstract Book"  [**13]  in his hands, and to cross-examine him generally as to the headings and other entries therein, and to read said headings and other entries as parcel of their cross-examination, but the court refused to permit the witness to be recalled for the purposes aforesaid, adhering to the opinion already expressed, that the defendant was not at liberty, as part of her cross-examination, to read these headings to the jury, but permitted the entries with reference to which the plaintiff had examined the witness in chief to be read to the jury, to which ruling the defendant excepted, and prayed the court to sign and seal this her sixth bill of exceptions, which was accordingly done.

7th Exception. The defendant then, further to maintain the issues on her part joined, offered to read to the jury the entries in the "Abstract Book" aforesaid, relating to the measurements and valuations of the work done by the plaintiff on the defendant's house, with the headings thereof, stating that she intended to rely thereon, with other testimony in the cause, as evidence that said work was done by the plaintiff in execution of a contract for that purpose, between the defendant, on the one part, and the plaintiff [**14]  and Sprogle, on the other, as partners, but, on objection taken by the plaintiff, the court refused to permit said headings to go to the jury, to which refusal the defendant excepted, and prayed the court to sign and seal this her seventh bill of exceptions, which was accordingly done.

8th Exception. The defendant then, for the purpose of sustaining the issues joined on her part, and proving that the work done and materials furnished, for defendant as aforesaid, was so done under a joint contract, between defendant on the one side and plaintiff and Sprogle, as partners, on the other, offered to prove to the jury, that the witness, Caldwell, already examined on the part of the plaintiff, was requested, by Sprogle, to visit Annapolis, for the purpose of measuring all the work done on defendant's house in 1854 and 1855, by the plaintiff and others, and that he came down understanding that he was to measure all the work done at defendant's house by plaintiff and by Sprogle and others, and that on his said visit he went to defendant's house with the plaintiff, and stated to her that he had come to measure said work; that defendant thereupon sent for Mr. Randall, her counsel, and stated [**15]  to him the purpose for which said Caldwell and plaintiff had visited her, and that Mr. Randall having understood the object, stated to the parties that defendant insisted she had made a contract for $ 2000 for the work done, and that she had paid for it, and that she would have nothing to do with any measurement of said work, but that she would permit the said parties, if they pleased, to go through her house and measure said work, and that this statement, of Mr. Randall, was made to plaintiff and Caldwell, and must have been heard by them, and that Caldwell did accordingly proceed to measure all the work done in said house by the plaintiff and Sprogle and others; and also offered in evidence a contract, dated the 24th of June 1856, between the Visitors and Governors of St. John's College, of the one part, and Sprogle and Caulk, of the other part, by which the latter jointly agreed and undertook to erect for the former certain buildings, according to certain specifications, which contract and the accompanying bond and specifications are all signed "Sprogle & Caulk;" and also a contract between H. M. Steele and the same parties, by which they jointly undertook to build a dwelling-house [**16]  for said Steele, which is also signed in the same way, and proved the signatures of Sprogle and Caulk to these contracts, and that they did the work so contracted for by them; and also offered to read to the jury the entries in the "Abstract Book" of said Caldwell, already spoken of, relating to the measurements made by him of the work done on the defendant's house by plaintiff and Sprogle and others, with the headings thereof, with proof of the handwriting thereof. To the admissibility of which testimony, so offered by the defendant, the plaintiff objected, and the court sustained the objection, and refused to allow said testimony to be given as evidence of the said partnership, but permitted the said entries of the valuation and measurement, without the headings, to be read on the question of measurement and value, to which ruling the defendant excepted, and prayed the court to sign and seal this her eighth bill of exceptions, which was accordingly done.

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

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

A witness cannot be asked as to the correctness of the charges in a bill not made out by himself, and which there is no evidence to show that he ever saw before the trial, and as to the time of making out of which there is no evidence, and in regard to all the items of which he has not, after examining it, a recollection.

It is now held that the memorandum need not be made by the witness, but if made at or about the time of the occurrences, and the witness from having then seen and recognized it as containing the truth, of which, at the trial, he is still convinced, he may be examined in regard to it.

But where the witness neither recollects the fact, nor remembers to have recognized the written statement as true, and the writing was not made by him, his testimony, so far as founded on the written paper, is but hearsay, and he can be no more permitted to give evidence of his inference from what a third person has written than from what such person has said.

A witness (a measurer of mechanical work) cannot be permitted to rely upon a bill of particulars, which was a copy from the statements in his abstract book, which latter, with the results of the calculations extended, was taken from his dimension book; such paper is a copy of a copy of an original.

The memorandum is inadmissible even if it be a copy made by the witness himself from his own original memoranda.

A witness, neither a manufacturer of, nor dealer in, hardware, cannot give evidence, of the value of items in a hardware bill, based upon information derived from buyers and sellers of such articles; such evidence is not the best which the nature of the case admitted, and is therefore but hearsay.

In such a case the value of the articles could have been proved by the person who sold them, or, in any event, a manufacturer of, or dealer in, such articles, should have been produced, or it should have been shown that the witness had made, about the time, purchases of articles of the same or a similar character.

A witness cannot be asked whether the entries of measurements and valuations in his abstract book correspond with the entries thereof in the bill of particulars, when it appears that the results of the calculations were not transferred from the abstract book to the bill, but from the latter to the former; in such a case the agreement between the two would be no proof of the accuracy of either, and especially not of the bill of particulars.

The headings in a measurer's Abstract Book, showing that the defendant was charged for the work measured as debtor to the plaintiff and another, are inadmissible as evidence for the defendant for the purpose of proving a technical partnership between the plaintiff and such other party, there being no offer to connect them with other evidence going to show the existence, at any time, of such partnership.

Where a witness has testified for the plaintiff in reference to entries of measurements in his book, the defendant may cross-examine the witness in reference to these entries and the headings of the same, for all the purposes of the defence; the entire account, though composed of many items, is, in the eye of the law, but one memorandum and one entry, and the defendant was entitled to the whole of it.

Evidence offered for a particular purpose may be properly rejected, though admissible generally, or for some other purpose.

Evidence of joint contracts made by the plaintiff and another party with other persons in 1856, is altogether inadmissible for the purpose of showing there was a partnership existing between the plaintiff and such other party in 1854 and 1855.  

COUNSEL:
A. B. Hagner and Thos. S. Alexander, for the appellant, argued:

1st. Conceding that the [**17]  witness was at liberty to refresh his memory by looking at the paper written by the measurer at the time the work was measured, provided such paper was at that time actually submitted to his inspection and approved by him, still the court erred in allowing the question to be put and answered as stated in the first exception, because this paper was not in the handwriting of, or made by, the witness, and there was no proof that it was prepared at the time of the measurement, or was seen by the witness at any time prior to his examination, and because he could not, even with the aid of the paper, prove that it contained a correct particular of the work done, or its value. Powell on Ev., 309. 1 Greenlf's Ev., secs. 436, 437. 6 G. & J., 60, Salmon vs. Feinour. 14 Md. Rep., 399, Martin vs. Good. The question was also objectionable as a leading one. 1 Greenlf's Ev., sec. 440. It was not admissible upon the ground that the witness was an expert, for there was no evidence that he was a tinner, and his answer thereto was the mere opinion of one not competent, as an expert, to give an opinion, and should therefore have been rejected. 1 Greenlf's Ev., sec. 440. Powell on Ev., 54. 1 Phillips' Ev.  [**18]  , (Ed. of 1859,) 778. 10 Md. Rep., 269, Scaggs vs. Balt. & Wash. Rail Road Co.

2nd. The paper placed in the hands of the witness, Caldwell, was in the handwriting of his son. It was taken by the son from the Abstract Book of the witness, which was made up from his Dimension Book, partly by witness and partly by his son. The Dimension Book was the book of original measurements. As the bill of particulars was nothing more than a statement made from a statement which had been prepared from original memoranda, the witness could not prove that the paper in his hands was correctly copied from his Abstract Book, nor that the Abstract Book was correctly made up from the Dimension Book; nor was the paper used for the purpose of refreshing the memory of the witness; and there was no proof that all the work measured had been done by the plaintiff, and no proof offered of the correctness or reasonableness of the prices. For these reasons the court erred in the second exception in allowing the question whether this bill of particulars in his hands was a correct statement of his measurements and valuations, to be put to and answered by the witness. Powell on Ev., 311. 1 Greenlf's Ev., sec. 436.  [**19]  1 Phillips' Ev., 585 to 588, and notes. 3 Md. Rep., 265, Lewis vs. Kramer, et al. 14 Md. Rep., 399. 2 Carr. & Payne, 196, Jones vs. Stroud. Again, the memorandum referred to was made at the recommendation of one of the parties, the plaintiff, and for this reason was inadmissible. 1 Greenlf's Ev., sec. 438, 439. 15 Md. Rep., 54, Spring Garden Mutual Ins. Co. vs. Evans.

3rd. The third exception presents the same questions, in reference to the hardware and hauling bill, as are presented in the second exception, in reference to the carpenter's bill, and also the additional objection that the evidence of Caldwell, as to the value of the hardware, was hearsay merely, and should have been rejected for this reason. 1 Greenlf's Ev., secs. 98, 99, 124. 1 Phillips' Ev., 585. Powell on Ev., 70, 71. 7 Md. Rep., 215, Lee vs. Tinges.

4th. The Abstract Book being produced, as stated in the fourth exception, the court permitted the witness, Caldwell, to compare it with the bill of particulars No. 1, and to say that they corresponded in their results. This evidence was inadmissible in the absence of the original Dimension Book, (Powell on Ev., 36, and authorities cited on the 2nd point,) and [**20]  moreover the correspondence should be shown in regard to the particulars and not the results of the papers.

5th. The headings and entries in the Abstract Book having been read as part of the cross-examination, without objection by the plaintiff, and further examination thereon had, as stated in the fifth exception, it was too late to object to their admissibility. 8 Gill, 120, Shanks vs. Dent. 9 Gill, 314, Baugher vs. Duphorn. Moreover, the examinations on the part of the plaintiffs, in reference to these entries, entitled the defendant to use all the entries in the Abstract Book, concerning this work, as parcel of her cross-examination. Powell on Ev., 379. 1 Greenlf's Ev., secs. 437, 466. 2 Phillips Ev., 917. 8 Md. Rep., 330, 336, Carroll vs. Ridgaway. 3 Term Rep., 749, Doe vs. Perkins. 2 Carr. & Payne, 325, Loyd vs. Freshfield. Ibid., 196, Jones vs. Stroud. Ibid., 603, Rex vs. Ramsden. 6 Carr. & Payne, 280, Gregory vs. Travernor. The same question as to the right of the defendant to read from the Abstract Book, for the purposes of the cross-examination, is raised more distinctly by the seventh exception. The court limited the defendant to the reading of such entries only as [**21]  the plaintiff had used in his examination-in-chief. The objection to the entire rulings is, that if the plaintiff will read one sentence from a paper, he thereby gives in evidence the entire paper, and entitles the defendant to read so much thereof, on cross-examination, as may be pertinent to the defence.

6th. The seventh and eighth, and also the fifth exceptions present the question as to the right of the defendant to read the headings in the Abstract Book, and the other evidence in the eighth exception, as evidence in chief, for the purpose of showing a partnership between the plaintiff and Sprogle. It is submitted that this evidence was admissible to prove a partnership as alleged. It was evidence sufficient to authorize a jury to infer from it the existence of such a partnership. 2 Greenlf's Ev., sec. 483. 1 Lindley on Part., 89, 91. Collyer on Part., secs. 769, 775. 1 Phillips' Ev., 466, 496. 4 Term Rep., 720, Saville vs. Robertson. 2 Starkie, 453, Ellis vs. Watson. 1 Carr. & Payne, 614, Stables vs. Eley. Ibid., 627, Hellings vs. Gregory. 2 How., 263, 283, Matheson vs. Grant. 2 Pet., 186, Le Roy, Bayard & Co., vs. Johnson. 19 New Hamp., 465, Chase vs. Stevens. 39 Maine,  [**22]  157, Holmes vs. Porter. 5 G. & J., 384, Bernard vs. Torrance. 10 Md. Rep., 122, Boyd vs. McCann.

Frank H. Stockett and Cornelius McLean, for the appellee, argued:

1st. The first exception relates merely to the proof of the value of work included in a bill of particulars, before offering proof that the whole of the work was done. If this be the construction of the exception, (and we so understand it,) the point involved has been decided by our courts, because they have constantly refused to control the course of the plaintiff's testimony, allowing him to begin where he pleases. 5 H. & J., 491, Whittington vs. Farmers Bank. 4 Md. Rep., 510, Marshall vs. Haney. The work spoken of was done by the witness himself, and was measured by Caldwell in his presence and under his supervision, and he identified the work done and described in this paper as his work, and why should he not be allowed to give his opinion of its value; he did the work, was in the habit of doing such work, and was, in fact, an expert, competent to give his opinion, at least, of his own work. We think the law as laid down in 1 Greenlf's Ev., secs. 436, 437, and in the case of Salmon vs. Feinour, 6 G. & J., 60,  [**23]  fully sustains the ruling in this exception. The question is not a leading one: how could it have been put in any other form? 1 Greenlf's Ev., sec. 434, 435.

2nd. The question raised by the second exception may be considered as included in the fourth and fifth, because the Abstract Book having been produced, no question could be raised now as to which is the original, and the witness proved that he had compared them. On this point, as conclusive of the question, we refer to the case of Martin vs. Good, 14 Md. Rep., 398, and to 1 Greenlf's Ev., secs. 437, 439, and notes, to prove that the witness had a right to refer to the bill of particulars, as to which he testified that it was the result of his own measurements, although he could not recollect the items of his measurement. It would have been impossible for him to recollect the items, and if such testimony could not be given, there could be no useful measurements in disputed cases. But the ruling in the second exception is correct, because the paper referred to was not a copy, but an original, and made by the witness or under his supervision, directly after the time when the measurement was done.

3rd. In the third exception,  [**24]  the measurer testified as to the value of the hardware, from his knowledge of the market value. That knowledge can only be obtained from buyers and sellers, and he gave, as the source of his knowledge, such reports. He was an expert and gave the source of his knowledge. It was his business, as a measurer, to fix a price, because nobody else could do so without seeing, and nobody could see but an expert.

4th. The sixth and seventh exceptions, and that part of the fifth relating to the headings of the Abstract Book cannot be sustained, because the entries in that book, called the headings, are only entries, and were not read at the request of the plaintiff, as the book was not in evidence, and other entries could not be read, but as the defendant's evidence, and they were, therefore, properly ruled out as cross-examination. 1 Greenlf's Ev., sec. 466. And they were properly ruled out as evidence of partnership, because only the statement of a party, who, if he knew any thing on the subject, could have been examined. It would have been the hearsay of a witness present on the stand. The objection to their admissibility did not come too late; it was raised as soon as the purpose, for [**25]  which they were offered, was disclosed. 5 Gill, 120, Dent vs. Hancock.

5th. The only testimony offered of partnership was the headings, which were properly excluded, because not admissible for any such purpose, and the joint contracts made in 1856, a year after these transactions. The question in this case was, whether a partnership existed at the time this work was done, and certainly one or a half dozen acts, or even direct proof of a partnership afterwards, is no evidence of a partnership at the time the work was done for the recovery of which this suit was brought. The joint contracts, offered in evidence here, were made in 1856, a year after the completion of the work, which was begun as far back as 1854. 2 Greenlf's Ev., sec. 483. Coll. on Part., sec. 769. There was no evidence of general partnership offered or attempted to be offered; there should have been some evidence of acts of partnership, prior to this work, in order to raise the presumption of partnership at the time. Not one of the numerous authorities and cases, cited by counsel on the other side, sustain the admission of this evidence, but on the contrary, the cases in 4 Term Rep., 721, and 2 How., 263, most strongly [**26]  relied on by them, clearly show the utter incompetency of this evidence to prove partnership.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*571]  LE GRAND, C. J., delivered the opinion of this court:
This is an action instituted to recover for work and labor and materials, furnished by the plaintiff in the repair of the house of the defendant, at Annapolis.
The questions which this court are now called upon to decide, relate to the rulings of the Circuit court, touching the admissibility of testimony. The defendant took eight exceptions to the opinions of the court. They will be noticed in the order in which they are presented in the record.
As to the first exception:--The plaintiff after giving general testimony of the work done and materials furnished, and of the value of both, called to the stand Thomas A. Mitchell, and placed in his hands the bill of particulars marked No. 3. The witness stated that the paper was not in his handwriting, but in that of Mr. Caldwell, a measurer, and that he identified the work there charged as the work done by him, and measured by Caldwell under his supervision; thereupon he was asked,  [**27]  by the counsel of the plaintiff, whether, in his opinion, the charges in the bill of particulars were fair, and what was the amount thereof? The defendant objected to the question, and the witness in answer to another question, stated, that he could not state from his recollection, even after looking at the bill of particulars, that all the articles charged therein were furnished and the work done as charged. The defendant insisted on her objection, but the court overruled 

 [*572]  it, and the question was allowed to be put to the witness and answered by him.
If the question was improper, it was so because the paper was not in his handwriting, and because after he had examined it he was unable to say, that all the articles charged in it were furnished, and all the work charged, was done. There is nothing in the testimony of the witness to show that, the particular paper was made at his instance, (although the measurement of the tin-work was under his supervision,) or, that in January 1859, the time when he testified, the paper enabled him then to say from anything he had done in connection with the making out of the paper, that he knew what it declared, was true. The matter then [**28]  stands thus: a witness is asked as to the correctness of the charges in a bill not made out by himself, and as to the time of the making it out of which there is no evidence, and in regard to all the items of which, he has not a recollection. We are of the opinion, that under all the authorities the question ought not to have been allowed to be put to the witness.
There is is a great deal (unnecessary to be recapitulated here) said in the elementary books, and also, in the adjudged cases, on the general subject of the use of memoranda as evidence, and the circumstances under which they can be referred to by a witness to refresh his memory. What was supposed to be the ancient rule has been relaxed by more recent decisions; and now it is held not to be necessary that the memorandum should have been made by the witness, but, if it was made at the time, or about the time, of the occurrence of the fact recorded in it, and the witness from having then seen and recognized it, as containing the truth, of which he is still convinced, at the time of the trial, he may be examined in regard to it. But he must make it an original source of information, otherwise he cannot be allowed to refresh [**29]  his recollection by reference to it. In section 436, of 1 Greenleaf on Evidence, the rule is thus laid down: "Where the witness neither recollects the fact, nor remembers to have recognized the written statements as true, and the writing was not made by him, his testimony, so far as it is founded 

 [*573]  upon the written paper, is but hearsay; and a witness can no more be permitted to give evidence of his inference from what a third person has written, than from what a third person has said."
In the case under consideration, he does not remember (at least he does not so testify) to have recognized the bill of particulars as containing a true statement; indeed, there is nothing, in his evidence, going to show that he ever saw it before the trial; and his evidence is, that he cannot recollect, independently of the paper, all the articles charged in it. See Powell on Evidence, 309, (96 Law Lib.,) Lewis vs. Kramer, 3 Md. 265. In addition to what we have said in regard to this exception, we remark, that we have not understood this exception as it appears from the notes of the counsel of the appellee, to have been understood by them; it does [**30]  not, in our opinion, simply raise the question whether it was competent to prove by the witness, he being a tinner, the price of certain tin and tin-work; but as presenting the question, whether the bill of particulars could be verified in the manner proposed, and the testimony given by the witness, in reply to the question shows, that such was the scope of it.
As to the second exception:--The plaintiff proved by the witness, William Q. Caldwell, that he is a measurer of different kinds of mechanical work, and that he came from Baltimore to Annapolis, at the instance of Daniel M. Sprogle, to measure the work done on Mrs. Green's house; that he proceeded to measure the carpenter's work in the presence of Daniel Caulk, John Wiggins and Mrs. Green; that Wiggins and Caulk pointed out the work done, and that Mrs. Green objected to some of the work pointed out as not having been done; witness said he would put such work down as disputed work, but Mrs. Green objected to its being put down at all, as it had not been done by Caulk; witness then said he would omit such disputed items altogether. It was also proven by the witness, that the bill of particulars was not made by Mrs. Green's [**31]  agreement or consent. The plaintiff then, by his counsel, offered to the witness the bill of particulars No. 1, 

 [*574]  and asked him to state, whether the same was a statement of his measurements and valuations of said work? the witness having first stated, that the bill of particulars No. 1, was in the handwriting of his son, made out several days after the witness had completed the measurements; that the measurements were all set down in his Dimension Book, which book was then in possession of witness, and was handed by him to counsel of defendant at their request; that the bill of particulars was made by his son from the "Abstract;" which was made out partly by the witness and partly by his son, under his superintendence, from the Dimension Book; he could not say the bill of particulars was an exact copy from the Abstract, or corresponded in all particulars with the Abstract, as the Abstract might contain errors and discrepancies; that he thought the footings in the Abstract No. 1, of the dollars and cents, were taken from the bill of particulars; before he had left Baltimore he had compared the bill of particulars with the Abstract, and found them to agree in substance. The [**32]  witness further testified, that he regarded the bill of particulars as the original statement; that the Dimension Book was on loose paper, requiring many calculations which were in part made by his son and partly by himself; he examined them all and transferred the results to the Abstract Book. The court allowed the testimony to go to the jury, to which ruling the defendant's counsel objected.
The interrogatory propounded to the witness raises the question, whether he could properly be permitted to rely upon a copy of a copy of an original? Notwithstanding the witness said he regarded the bill of particulars as the original, his testimony clearly shows, that it was a copy from the statement in the Abstract Book, which latter, with the results of the calculations extended, was taken from the Dimension Book.
The principle governing such a state of case, we find very perspicuously and accurately expressed at page 311, of Powell on the Law of Evidence, and we accordingly adopt what the author says in regard to it, having verified what he states by an examination of the authorities on which he relies. His 

 [*575]  language (and it effectually disposes of the question asked [**33]  on behalf of the plaintiff) is as follows: "The memorandum must have either have been made by the witness, or recognized by him, at or about the time when it was made, as correct. It must not contain any of the elements of hearsay, and it will, therefore, be inadmissible if it appear to be the statement of a third person; as where it had been drawn up by such a person from the witness' own memoranda; or even if it be a copy made by the witness from his own original memoranda. The rule is consistent with the general principles of secondary evidence, by which the copy of a copy, unless in the nature of a duplicate original, is entirely inadmissible; and there appears to be neither principle nor authority to support the personally eminent opinion of Mr. Phillips, that a copy of an original memorandum, made by the witness himself from his own original, would be admissible. It must be remembered, that the original memorandum is itself not an original, but a transcript and copy of the witness' own contemporaneous knowledge, which in its oral form would be the strictly primary and original evidence. Therefore, if the copy of a memorandum were admissible to refresh a witness' memory, there [**34]  would be no reason why the examined copy of an examined copy of an original document should be, as it clearly is, inadmissible."
As to the third exception:--This exception relates to the hardware, and the hauling of it, which was furnished, as alleged, by the plaintiff, in the repairs of the house of the defendant. In regard to the bill of particulars of it, which is marked No. 4, the witness gave the same testimony as he did in reference to the manner and by whom the bill of particulars, mentioned in the last exception, was made out; and the reasoning applied in that instance, is applicable in this. It was further shown by witness, that the plaintiff, in the presence of the defendant, and without denial on her part, said that he had furnished all the hardware, and that he had made a valuation of such of it as had been shown to him by the plaintiff. The witness also testified, that it was his habit, at the time of making his measurements and valuations, to 

 [*576]  make inquiries, as to the value of the materials furnished, of persons supposed by him to be competent to give him information on the subject, and who were in the habit of buying and selling the same, and that at [**35]  the time of making the appraisement in question he made such inquiries, and that his testimony was based on information so obtained. The court allowed the witness to inspect the several values of the said particulars, as stated in the bill of particulars, and to state what were the values of the several articles of hardware charged as having been furnished. The defendant's counsel excepted.
The general rule is, that the best evidence which the nature of the case admits, should be adduced; secondary evidence being admitted only in cases of necessity, or where it is a part of the res gestae, or in corroboration of other and independent evidence going to the establishment of the same fact. All the authorities concur on this subject. In the case before the court, the question is, was the best evidence offered which the nature of the case admitted? If it was not, then the testimony of the witness was merely hearsay, and, for that reason, inadmissible. The witness was neither a manufacturer of, nor dealer in hardware; all his information, as testified to by himself, was derived from others, who did not give it under the solemn sanctions of an oath. It was competent for the [**36]  plaintiff to have proved the value of the articles by the person from whom they were purchased. In any event, we think, if the seller was not produced, that a manufacturer of, or dealer in such articles, should have been, or that it should have been shown that the witness had made, about the time, purchases of articles of the same or similar character. The evidence offered, extended no farther than to place before the jury the declarations of persons, made without any of the usual guards against error and uncertainty. The fundamental rule is, that the credibility of the witness should be tested by his oath, with the privilege of cross-examination preserved to the party against whom his testimony is adduced. From these considerations it follows that, in the opinion of this court, the testimony objected to was improperly admitted. 1 Greenleaf 

 [*577]  on Ev., secs. 98, 99. Lewis vs. Kramer, 3 Md. Rep., 265. 1 Phillips on Ev., 585, (Ed. of 1859,)
As to the fourth exception:--The plaintiff having placed in the hands of the witness the "Abstract Book," to which he had previously referred, inquired of him, whether the entries in the book, in reference [**37]  to his measurements made at the house of the defendant, corresponded with the entries thereof in the bill of particulars No. 1? to which question the defendant objected, but the court overruled the objection, and the witness answered, that they did correspond in their results and "in the carrying out." The defendant excepted to the admission of the testimony. After the first exception taken in the case, each one that followed incorporated in it all the facts embraced in the preceding exceptions. And, according to the testimony of the witness Caldwell, the results of the calculations were not transferred from the Abstract Book to the bill of particulars, but from the latter to the former, and, as a consequence, the agreement between the two could be no proof of the accuracy of either, and especially of the bill of particulars. The results of the admeasurements and valuations involved nothing more than the questions of arithmetic, and if these results were but transferred from one paper to another, they could in neither place, by such process, verify themselves. What is said on this exception is the opinion of a majority of the court.
As to the fifth exception:--In answer to a question [**38]  of the court it was distinctly stated, that the "headings" from the Abstract Book were offered by the defendant, as evidence in chief, to prove partnership between the plaintiff and Sprogle. For the specific purpose for which it was offered, i. e., to show a technical partnership, the testimony, we think, was inadmissible, and properly refused by the court. The offer was unaccompanied by any declaration of intention to connect it with other evidence going to show the existence, at any time, of a partnership between the plaintiff and Sprogle; and the evidence offered, of itself, was clearly inadmissible, for the purpose for which it was offered, although, as will be hereafter shown, it was admissible on other grounds. We 

 [*578]  are also of the opinion that the Circuit court ought to be sustained in its ruling, as stated in the seventh exception.
As to the sixth exception:--The point of this exception is, that the court refused to allow the defendant's counsel to cross-examine the witness, in reference to the entries, in regard to which he had testified, and also in regard to the headings of the same, which he proposed to do, for all the purposes of the defence.  [**39]  We are of the opinion, that the defendant should have been allowed to cross-examine the witness in regard to the entire account, for, although it was composed of many items, it was in reality but one memorandum. The party was entitled to subject the testimony of the witness to every test of accuracy, and it is not for this court to anticipate, or rather to conjecture, what facts might have been disclosed under such an examination. Regarding the memorandum as but one entry, in the eye of the law, we think the defendant was entitled to the whole of it, and agree with Abbott, C. J., (Loyd vs. Freshfield, 2 Carr. & Payne 325,) that "it would be a disgrace to the administration of justice, if half an entry could be read without the rest."
As to the eighth exception:--The court refused to allow the defendant to prove a partnership between the plaintiff and Sprogle, by showing that Sprogle went to Baltimore and employed the witness, Caldwell, to measure and value all the work done on the house of the defendant; that Mr. Randall, as counsel of the defendant, stated in the hearing and presence of the plaintiff, that she said she had contracted to pay $ 2000 [**40]  for all that was done, and that she had paid it; to show the character of the headings of the entries in the Abstract Book, and also contracts entered into by plaintiff and Sprogle, subsequently to the making of the contract with the defendant. We think the ruling of the Circuit court, on this exception, ought to be affirmed: "Evidence offered for a particular purpose may be properly rejected, though admissible generally or for some other purpose." 6 Gill & Johns. 481. 4 Md. 509. We have said, in disposing of the sixth exception, that the defendant was entitled to give in evidence 

 [*579]  the headings of the accounts in the Abstract Book, as part of the same entries offered by the plaintiff, and to cross-examine the witness in relation thereto. But we do not think the headings themselves, unsupported by other proof, were admissible evidence to show a partnership between the plaintiff and Sprogle; nor did the declaration of the defendant tend to prove such partnership, although, being uncontradicted by the plaintiff, it might be admissible for other purposes; and we concur in the propriety of rejecting the evidence of contracts made by the plaintiff [**41]  and Sprogle jointly, with other persons, in the year 1856, as altogether inadmissible for the purpose of showing there was a partnership existing between the parties in 1854 and 1855.
We reverse the Circuit court on the 1st, 2nd, 3rd, 4th and 6th, and affirm it on the 5th, 7th and 8th exceptions.
Judgment reversed and procedendo awarded. 

70 of 196 DOCUMENTS 

MATILDA E. GREEN vs. DANIEL M. SPROGLE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 579; 1861 Md. LEXIS 8 

February 20, 1861, Decided 

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

Action, brought on the 28th of October 1857, by the appellee against the appellant to recover for work and materials, done and furnished by the plaintiff to the defendant, in the repair of her house in Annapolis, during the years 1854 and 1855. The action was instituted in the Circuit court for Anne Arundel county, and was removed, on suggestion and affidavit of the defendant, to the Circuit court for Howard county, where it was tried in March 1860.

1st Exception. The plaintiff produced Daniel Caulk, a competent witness, and proved by him, that, in 1854, he was sent for by the defendant and engaged by her to make certain repairs upon her house in Annapolis; that plaintiff was present at one or more interviews between witness and defendant; that she said she wished certain repairs, which she pointed out, put upon her house, including an addition thereto, that she had a small sum of money (about $ 1500, witness thinks) which she intended to expend in these repairs, that she wished one person only to have charge of the work, pay the bills, &c., and that witness proceeded to undertake the work, he doing the carpenter's work, and [**2]  furnishing materials for it, and the plaintiff doing the plastering and brick work and furnishing materials therefor; that after the work first pointed out by the defendant had been begun and in part completed, larger repairs were projected and other additions made to the house, besides those originally specified, and the witness then proceeded to testify, in detail, to the value and extent of the entire repairs and additions made upon the house of the defendant.

The plaintiff then produced Wm. Q. Caldwell, and proved by him, that he is a practical mechanic and measurer, living in Baltimore city; that he was employed by the plaintiff, about the year 1857, to measure certain carpenter's, bricklayer's, tinner's and painter's work in defendant's house in Annapolis; that he proceeded to make these measurements of work which was shown him as done by the plaintiff; that his habit in making measurements is to set down the measurements, at the time they are made, in a small book, which he calls his "Dimension Book," which does not contain a summing up of the results of the measurement, but that he could make all the calculations at this time before the jury, if he were required and time [**3]  would allow, showing the same results as those contained in the "Abstract Book," that he then extracts from the "Dimension Book" the particular measurements and prices, and calculates the amount of work upon loose pieces of paper, and then transfers this work to a permanent book, which he calls his "Abstract Book," and which contains the aggregate amounts of the particular descriptions of work measured, and the footing up of the values of the work; that he pursued this plan in the present instance and has both the "Dimension Book" and the "Abstract Book" in court at this time. The plaintiff then asked the witness whether he measured any brick work in the house of the defendant, to which he replied that he did, and when asked what quantity of brick and mortar were measured by him, as furnished and laid by the plaintiff, and at what price, he replied that he could not say without referring to his book, and being told by the plaintiff's counsel, that he might refresh his recollection in any way he pleased, he produced the "Abstract Book," and said, "there is written in this book 31300 bricks at $ 12, but that he had no recollection whatever of the amount or price, without referring to [**4]  said book, and that he knew the amount of the several items of work measured by him only from seeing it in his said book." The defendant then demanded to look at the said book for the purpose of examining the same, which was first objected to by the plaintiff, but the objection was afterwards waived, and the book handed to the counsel for the defendant. The witness was then examined by the plaintiff in the same manner as to the other charges mentioned in the bill of particulars, and the witness in the same manner stated from the said "Abstract Book" the amounts of the measurements of the said items as made by him, which correspond with the bill of particulars filed in this cause as to the several items and amounts.

The plaintiff here rested his case, and thereupon the defendant, as introductory to her cross-examination of said witness, desired him to read to the jury from said "Abstract Book" all the entries therein connected with the said measurements which were made, and the headings to said entries, to which the plaintiff objected, and the court, (BREWER, J.,) sustained the objection and refused to permit the witness to read said entries and headings, and to this ruling the [**5]  defendant excepted.

2nd Exception. The defendant, thereupon, and as introductory to her cross-examination of said witness, Caldwell, requested him to state to the jury who is made, in said "Abstract Book," the debtor for the work so measured by him, and who are stated in said book to be the parties by whom the work measured was done, but the plaintiff objected to said question, and the court sustained the objection, and refused to permit the same to be answered by the witness, and to this refusal the defendant excepted.

3rd Exception. The defendant then proposed to read said entries to the jury in advance of her cross-examination of said witness, to avail as part of said cross-examination, insisting that said entries were made evidence in chief by the examination of the plaintiff in reference thereto, and offering further, that if said entries cannot be used in evidence on cross-examination by her as proposed, then to read them as evidence in chief on her part, and she distinctly stated that her offer was to read from said book no more than the entries therein in reference to the measurements spoken of by the said witness, including, as part thereof, the entries of the names [**6]  of the persons by whom and for whom the work so measured was done, to which no objection was made on the part of the plaintiff, and no refusal on the part of the court, to permit the same to be read, except as to the entries of the names of the persons by whom and for whom the said work so measured was done, which was objected to by the plaintiff, and refused by the court, and to this refusal the defendant excepted.

4th Exception. The defendant in the progress of her cross-examination of said witness, Caldwell, offered to prove by him that the plaintiff went to Baltimore and employed witness to go to Annapolis to measure work which had been done by plaintiff, and by the witness Caulk, for the defendant; that witness went to Annapolis and was taken by Caulk to defendant's residence, and there they saw the defendant, and stated to her the object of their visit, that defendant stated that Mr. Randall was her counsel, and she must send for him to advise her what was to be done; that Mr. Randall was sent for, and when he came, he advised for a while with the defendant, and then stated, that defendant insisted that the work was done by contract, and that she had paid all she was bound [**7]  to pay, and would have nothing to do with any measurement of the work done, but as the plaintiff and Caulk thought otherwise, she would not object to their going through the house, and making such measurements as they desired to make; that this conversation took place out of the presence of the plaintiff, and witness thereupon proceeded to measure the work done by Caulk, which occupied more than one day, and then began the measurement of the work pointed out as done by the plaintiff. To the admissibility of which evidence the plaintiff objected, denying expressly any intention of insisting that the defendant agreed to the measurement as a mode of settlement of this case, and the court sustained said objection, and refused to allow the proposed evidence to go to the jury, and to this refusal the defendant excepted.

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

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

Declarations of the defendant or his attorney, not made to the plaintiff or in his presence, are not binding upon him, nor admissible in evidence against him.  

COUNSEL:
A. B. Hagner and Thos. S. Alexander, for the appellant, in so far as the questions presented by the first, second and third exceptions are similar to those in the preceding case, relied upon their argument and authorities in that case,  [**8]  to reverse the rulings here. They also cited upon the point, that the evidence of partnership should have been permitted to go to the jury, the following additional authorities, viz: 1 Rob. Va. Rep., 267, Chapman vs. Wilson & Co.; 3 Watts, 101, Johnston vs. Warden; 11 Humph., 271, Furber vs. Carter, et al.; 20 Johns., 176, Gowan vs. Jackson; 11 Sergt. & Rawle, 372, Allen, et al., vs. Rostain.

The fourth exception shows the circumstances under which the measurements spoken of by the witnesses were made. As these measurements were made at the defendant's house and with her consent and privity, it was a fair inference, in absence of proof to the contrary, that she was a party to such measurements, and as there was no express proof that the work measured was all done by the plaintiff, it was very apparent that he intended to rely on the defendant's acquiescence in the measurements, as evidence of that important fact. Hence it became important that the defendant should show that, in fact, she declined to have anything to do with the measurements in question. The evidence tendered was therefore admissible at the time it was offered, and it was not rendered inadmissible by the plaintiff's [**9]  declaration, that he did not intend to insist the defendant had agreed to the measurement as a mode of settlement of the case.

Frank H. Stockett and Cornelius McLane, for the appellee:

The court below properly refused to permit the defendant to offer to the jury the entries or headings as a part of her cross-examination, because neither the book itself, nor the entries therein, had been made evidence by the plaintiff, nor were they before the jury; they having only been used by the witness as memoranda to refresh his recollection, to enable him to testify as to facts and his own acts. Nor could they be offered in chief by defendant, for, even if the entries were of such a kind as could have been offered by defendant, as her proof to be used against the plaintiff, yet the headings, showing to whom the measurer had, in his book, charged the work, or by whom the same was done, could in no wise avail against the plaintiff, they constituting no part of the measurement of the work done, or the value fixed on the same, and he being no agent for the plaintiff, to make out his accounts or designate to whom he was to charge the work as done. 1 Greenlf's Ev., secs. 51, 52, 448, 449,  [**10]  455, 466. 14 Pet., 448, Trenton Railroad Co. vs. Stimpson. 5 G. & J., 304, Davis vs. Calvert.

The court was certainly right in rejecting the testimony offered in the fourth exception, on the plainest elementary principles of evidence. Under what rule can the statements or admissions of a defendant, in her own favor, be admissible in evidence, when not made in the presence or hearing of the plaintiff? 1 Greenlf's Ev., secs. 197, 199.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*585]  LE GRAND, C. J., delivered the opinion of this court:
This, like the case of Green vs. Caulk, (ante., 556,) is an action instituted to recover the value of certain work done and materials furnished, by the plaintiff, in the repair of the house of the defendant. At the trial below the defendant reserved four exceptions. For the reasons assigned in the opinion filed in the case referred to, we reverse the Circuit court on the first three exceptions. The court is affirmed on the fourth exception. The testimony could not have the effect of binding the plaintiff, inasmuch as the declarations of Mr. Randall were not made to him, nor in his presence.  [**11]  
Judgment reversed and procedendo awarded. 

71 of 196 DOCUMENTS 

GEORGE S. KOONTZ vs. ELIZABETH D. NABB.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 549; 1861 Md. LEXIS 6 

February 5, 1861, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Equity side of the Circuit Court for Howard County.

This bill was filed, on the 9th of October 1857, by the appellant against the appellee, to make the separate estate of the defendant, who was a married woman, responsible for a promissory note for $ 175, signed by her, payable to the order of the complainant, at six months, dated the 11th of March 1857, and delivered to the complainant.

The facts of the case, as disclosed by the bill, answer and evidence, are, in brief, these:--The defendant, Mrs. Nabb, was possessed of about 371 acres of land, conveyed to her by two deeds, in 1855 and 1856, in one of which the conveyance is to her, "her heirs and assigns, to and for her and their own separate use and estate, and to be free and clear of all right and estate and liabilities of her present or future husband, and to be at her own disposal, by deed or otherwise;" and in the other, to her, "her heirs and assigns, to and for her own special use, benefit and estate, to be by her sold, willed or otherwise disposed of, as she may elect, or will, to be free and clear of all legal liabilities of her said husband, present and future, or any of his present or future engagements.  [**2]  " Sometime in September 1856, the complainant, Koontz, sold to George W. Nabb, the husband of the defendant, a horse for $ 175. The horse was delivered but no money paid, the said George giving Koontz his promissory note for the purchase money, payable in six months. In February 1857, the said George absconded from the State, largely in debt. On the 11th of March 1857, a day or two before this note became due, Koontz went to the residence of Mrs. Nabb, in company with one Cassidy, for the purpose of making some arrangement for securing the payment of the same, and proposed to deliver up the note and take back the horse. This Mrs. Nabb declined to do, as she wished to retain the horse. An agreement was then made between Koontz, on the one part, and Mrs. Nabb and her son on the other part, that Mrs. Nabb should give to Koontz her own note for $ 175, at six months, guaranteed by her son, and that Koontz should transfer to Mrs. Nabb, the note of her husband. This was accordingly done on both sides. Mrs. Nabb signed the new note, and her son wrote upon it a guarantee of payment on maturity, and then delivered it to Koontz. Cassidy, in behalf of Koontz, testified that the transfer of the [**3]  note of her husband was the true consideration for the note of Mrs. Nabb. Caleb Dorsey, who was present at the time, in behalf of Mrs. Nabb, testifies that she distinctly refused to pay her husband's note, or become responsible for it, or for any of his debts, and that the only consideration for the note in question was the sale, by Koontz, to her, of the horse which he had previously sold to her husband, and for which he had his note. The horse was subsequently attached as the husband's property, by Cassidy, as one of his creditors. The court below (BREWER, J.) delivered the following opinion, upon passing the decree dismissing the bill:

"This case, being ready for hearing, was submitted on both sides on notes. Mrs. Nabb, being a married woman, executed and delivered to the complainant a promissory note, which is the foundation of the present bill.

"Without entering into the consideration of the note, the case may be decided upon the liability of the separate estate of Mrs. Nabb for its payment. She has, by the deeds conveying this property to her, a right to dispose of it or to charge it in any form she may think proper, but the question is, whether the property of a feme [**4]  covert, so situated, is bound by all her general contracts, or whether, to bind it, it be not necessary for her to make an express stipulation to that effect? Chancellor Johnson, in the case of Conn vs. Conn, 1 Md. Ch. Dec., 216, in speaking of the cases in the Court of Appeals of Maryland on this subject, says: 'In all these cases it will be seen, that there was a clear engagement, on the part of the wife, to charge specifically the property settled to her separate use; and no allusion is made, in either of them, except in the case of 7 H. & J., 296, to the effect of a contract on the part of the wife, without such specific charge, regarding her simply as a feme sole,' in which latter case, the court expressly waived any decision of the question. And the Chancellor again says, 'that before her separate estate can be bound, it must be shown that her contract was made with direct reference to such separate estate, and that she is not to all intents and purposes, as to it, to be regarded as a feme sole and bound by any form of contract into which she may be pleased to enter, whether made with respect to her separate estate or not.' This case, as to the evidence of intention to charge,  [**5]  is not stronger than the case of Conn vs. Conn. The Chancellor seemed, however, to think, that parol proof of the intention to charge might be taken, on the strength of the case of Gray vs. Crook, 12 G. & J., 236. In that case the court gave no opinion. It was not a case in equity, but a suit at law, on an express promise to pay after the death of the husband, the circumstances of the existence of the separate estate, the insolvency of the husband at all times, and the purchase by the wife, constituting a moral consideration for the promise. The case in 11 Md. Rep., 492, is a case of specific charge by deed, not applicable, I think, to the present case. Though the decisions of the Chancery Court are not binding on the Circuit courts, as those of the Court of Appeals are, yet its decisions, as a court of a much more extensive territorial jurisdiction, have generally been followed. I think, moreover, that the decision of the Chancellor is right in principle."

From the decree dismissing the bill the complainant appealed.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

A married woman, having separate estate, cannot affect that separate estate unless the obligation sought to be enforced presents, upon its face, some evidence of the intent to charge the estate, or there be evidence, aliunde, tending to prove such intent.

English decisions, made subsequent to the period of our separation from the British Empire, though entitled to great respect, are not to be received as absolute authority in this State.  

COUNSEL:
Thos. Donaldson for the appellant:

The decree of the court below, dismissing the bill, was based solely upon the opinion that a promissory [**6]  note, signed by a married woman, does not bind her separate estate without an express stipulation to that effect. It is submitted that this opinion is erroneous, and that the note was, in itself, a binding obligation, and a court of equity will hold her separate estate liable for its payment, even in the absence of special facts, showing an express intention of contracting with relation to that separate property, and that in the present case there are facts showing such express intention. The recent decisions in England and in this country, all tend to sustain the position, that a married woman, having separate estate with the general power of disposition, is to be regarded, in reference to that estate, as a feme sole, and that such estate is liable for general contracts and engagements. Macqueen on Husband & Wife, 300, 301, in 66 Law Lib., 91. 17 Ves., 365, Bullpin vs. Clarke. 3 Mylne & Keene, 209, Murray vs. Barlee. 3 Madd. Ch. Rep., 387, Stuart vs. Kirkwall. 4 Russell, 112, Field vs. Sowle. 1 Craig & Phillips, 48, Owens vs. Dickenson. 3 Beav., 489, Crosby vs. Church. 2 Story's Eq., sec. 1400. 12 G. & J., 236, Gray vs. Crook. 11 Md. Rep., 492, Cooke vs. Husbands.

Chas. E. Phelps [**7]  for the appellee:

Before the separate estate of a married woman can be charged with her contracts, the contract itself, upon its face, must show an intention to charge it, or it must be shown that it was made with direct reference to her separate estate. Such is the law as decided by the chancellor in the case of Conn vs. Conn, 1 Md. Ch. Dec., 212. The case of Cooke vs. Husbands, 11 Md. Rep., 492, though containing some general expressions looking to the support of the views entertained by the appellant, yet is not a decision upon the precise point raised in the present case. The decisions in England, prior to our Revolution, were undoubtedly to the effect that the separate estate of a married woman is not, in equity, liable for the payment of her general personal engagements. 2 Story's Eq., sec. 1398. Whatever may have been the more recent decisions, they are not binding authorities here, and have not been adopted by any express decisions of our courts. The only express decision upon the question, is that of the chancellor, in Conn vs. Conn, and, it is submitted, that that decision ought to be now adopted by this court, as the law of this State. It cannot be pretended that the [**8]  note in this case can be brought within the principle of that decision. There is nothing upon its face showing an intent to charge her separate estate, nor is there any thing in the facts and circumstances of the transaction tending even to show that she made this contract with reference to that estate.  

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

OPINIONBY:
GOLDSBOROUGH 

OPINION:

 [*554]  GOLDSBOROUGH, J., delivered the opinion of this court:
We are satisfied, from an examination of this case, that the decree appealed from is sustained by the reasons assigned in the opinion of the judge of the Circuit court, and therefore the decree ought to be affirmed.
In addition, however, to the reasons assigned by the learned judge below, we would state that we have carefully examined the decisions in England and in this country, and have reached the conclusion that a married woman having a separate estate, cannot affect that separate estate, unless the obligation sought to be enforced presents upon its face some evidence of the intent to charge the estate, or there be evidence aliunde tending to prove such intent. This question was, on many occasions, brought to the consideration [**9]  of the Chancery court in England, from an early period, in its equity jurisprudence, and numerous decisions were made in conformity with our view of the law. Nor was that view disturbed in England, until the case of Hulme vs. Tenants, 1 Brown's Ch. Cases, 16, which occurred in 1778, followed by the cases of Whistler vs. Newman, 4 Vesey, Jr. 130, and Mores vs. Huish, 5 Vesey, Jr. 692, decided by Lord Loughborough. These cases are succeeded by many others, after Lord Elden became Chancellor, in which he restored the law to its first and ancient principle. In the case of Parkes vs. White, 11 Vesey, Jr. 209, he reviewed all the cases, and strongly intimated that the decision in Whistler vs. Newman was in opposition to all the authorities for a century. It is true that this 

 [*555]  doctrine has undergone much change by the decisions recently made by Lord Brougham and Lord Cottenham; (see Lewin on Trusts and Trustees, page 516,) yet we are justified in disregarding these decisions, by resorting to the rule laid down in the case of The Mayor and City Council of Baltimore vs. Williams, 6 Md. 235, in which this court said,  [**10]  (referring to the construction of the Statute of Elizabeth, Ch. 4,) the position of the counsel is correct, if, by the English doctrine, which is to prevail here, is meant such as was settled by judicial decisions previous to our separation from the British Empire; that subsequent decisions, although entitled to great respect, are not to be received as absolute authority. This last position was taken by Chief Justice Marshall, in Cathcart vs. Robinson, 5 Peters' Reports, 280, in which he concedes, "that the received construction of the English Statutes, at the time of the Revolution, may very properly be considered as accompanying the Statutes themselves, and forming an integral part of them."
This question of a feme covert's jus disponendi of her estate, has been, upon several occasions, considered by this court, and in the case of Cooke vs. Husbands, et al., 11 Md. 492, the court say: "We may consider it unsettled as late as 1849." And though the court, in that case, use the following strong language: "Therefore, following the decisions, which, under our institutions, it is the duty of this court to respect as authority, we are of opinion,  [**11]  that a feme covert may act in reference to her separate estate as a feme sole, when the settlement contains no limitations on the subject, on the principle that the jus disponendi accompanies the property, unless restrained in terms, or by the manifest intention of the instrument;" yet the facts in that case did not justify the court in extending their decision so as to embrace the question now under consideration. Reverting to the conclusion we have arrived at, that a married woman having a separate estate, cannot affect that separate estate, unless the obligation sought to be enforced presents upon its face some evidence of the intent to charge the estate, or there be evidence aliunde tending to prove such intent, we find 

 [*556]  no such intent upon the promissory note in this case, nor are there any facts, in the evidence, from which such an intent may be inferred.
Decree affirmed. 

72 of 196 DOCUMENTS 

STATE, use of IGNATIUS GARDINER, vs. C. S. KEECH, Adm'r of THOS. P. TURNER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 512; 1861 Md. LEXIS 1 

January 23, 1861, Decided 

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

Debt, brought on the 25th of March 1856, by the appellant, on the bond of Turner as constable, dated the 13th of June 1853.

Exception. At the trial the plaintiff offered in evidence the following receipt, the execution of which was proved:

"Sept. 14th, 1853. Received of Charles A. Duvall, a note of hand, drawn by James M. Boyd, for fifty dollars, dated May 28th, 1853, also, one against same, for fifty dollars, dated April 9th, 1853.

THOS. P. TURNER, Const."

The plaintiff then proved an assignment by Duvall, endorsed on this receipt, and dated the 19th of December 1854, by which Duvall, for value, assigned all his interest in the notes, mentioned in this receipt, to Gardiner, the cestui que use in this action, and then rested.

The defendant proved that Turner, his intestate, died in September 1855, and then offered to read in evidence to the jury, to show that his intestate had performed his duty as constable in the premises, and to discharge his estate from liability in this case, certain entries from the docket of James R. Davis, a justice of the peace, purporting to be judgments rendered by said [**2]  Justice in favor of said Duvall against said Boyd.

These entries show that judgments by confession, on the notes mentioned in the receipt, were rendered on the 28th of Oct. 1854, in favor of Duvall against Boyd, and on each judgment is this entry: "Sup'd by Haswell Magruder & R. A. Harwood, for 6 mos. from date of judgt."

The defendant then offered in evidence to the jury, in connection with the aforesaid entries, to show that the claims in the constable's receipt, sued upon in this case, had been attached, certain other entries from the docket of said justice, purporting to be two judgments of condemnation against Boyd, rendered by the justice, on the 26th of April 1855, upon attachments issued at the instance of creditors of Duvall.

The defendant then proved by Davis, the justice, that the aforegoing entries were made by him. The plaintiff objected to the admissibility of said entries to show that the defendant's intestate had performed his duty as constable, or that the claims, mentioned in said receipt, had been attached, or for the purpose of discharging the defendant from liability in this case, but the court (CRAIN, J.) overruled said objections, and allowed said [**3]  docket entries to be read to the jury in connection with the receipt offered in evidence by the plaintiff, to show that the defendant's intestate had performed his duties as constable in the premises, and therefore the defendant was not liable in this action. To the ruling of the court in permitting said entries to be read in evidence to the jury, for the purpose aforesaid, the plaintiff excepted, and the verdict and judgment being against him, appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

In an action upon a constable's bond, the docket entries and the evidence of the Justice who rendered the judgments, showing that the judgments had been superseded in time, are admissible in evidence to exonerate the constable, even though the supersedeas may have been invalid.

The Act of 1842, ch. 283, does not contemplate that the constable shall be liable for the ignorance, mistake or neglect of the Justice in taking an invalid supersedeas. 

COUNSEL:
Thos. F. Bowie, for the appellant:

The plaintiff made out a prima facie case by proving the constable's receipt. This receipt was, under the Act of 1842, ch. 283, prima facie evidence of the plaintiff's right to recover, and, under this Act, the constable can only be discharged by proving the issue of an execution, and return of nulla bona, or an injunction, supersedeas, or writ of certiorari. The supersedeas here relied on was inadmissible, because void and inoperative, not having been signed by the sureties. The Act of 1791, ch. 67, sec. 1, allowed a supersedeas in cases of magistrates' judgments, as in all other cases, and prescribed the form therefor. The Act of 1825, ch. 223, sec. 2, dispenses with [**4]  the form, and allowed the entry to be short. The Act of 1835, ch. 224, sec. 3, required the signatures of the sureties, but this applied only to the city of Baltimore. Then comes the Act of 1843, ch. 321, which applies to the whole State, and changes the form of the supersedeas, and now the entry on the docket must be as required by that law. The sureties must sign the supersedeas, and their signatures must appear on the docket of the Justice. In this case it was not so signed, and was, therefore, informally taken by the magistrate, is inoperative, and can afford no protection to the constable, who, notwithstanding the entry thereof, should have ordered the executions on the judgments to issue.

Daniel Clarke for the appellee:

It is conceded, on the other side, that these docket entries are evidence, but it is said they do not show a discharge of the constable, because the supersedeas was informally entered. But, it is submitted, they operate to prevent the recovery in this action. The inquiry whether the supersedeas was regular or not, would be legitimate if the suit was against the magistrate, but it cannot be as against the constable. The entry on the magistrate's docket,  [**5]  that the judgment was superseded, is sufficient to protect him. He did all he could and all that the law requires of him, and it would be monstrous to hold him responsible for the ignorance or mistake of the justice. But again, the entry on the docket is not the supersedeas. The supersedeas proper, or what the law of 1843 means as such, and requires to be signed by the sureties, is the instrument, drawn out in full form, and given to the party. This is never entered in full on the docket. And in this view the objection, that the supersedeas was informally taken, cannot be sustained, for there is nothing to show such informality. The docket entry merely shows, or at least is perfectly consistent with the fact, that a proper supersedeas was taken, drawn out in form, signed by the sureties, and delivered to the party.  

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

OPINIONBY:
TUCK 

OPINION:

 [*515]  TUCK, J., delivered the opinion of this court.
At the trial below, after the plaintiff had established a prima facie case, under the Act of 1842, ch. 283, the defendant, to show that his intestate had been prevented from collecting the claims in his hands for [**6]  the use of the plaintiff, offered to prove, by the docket entries of the justice before whom the judgments were rendered, and by the evidence of the justice himself, that the judgments had been superseded within the time limited by law, so that writs of fieri facias could not be sued out thereon, there being no evidence that any supersedeas had been signed by the parties, as required by the Act of Assembly. And he also offered, "in connection with the above mentioned entries," in order to show that the claims mentioned in the constable's receipt had been attached, certain other entries from the docket of the justice, and proved by the justice himself, purporting to be two judgments of condemnation, rendered upon attachments against the debtor of the present plaintiff at the suit of creditors of Duvall, to whom the receipt in this case was given by Turner, as constable, "whereupon the plaintiff objected to the admissibility of said entries, as evidence, to show that the defendant's intestate had performed his duty as constable, or that the claims had been attached, or for the purpose of discharging the said defendant from liability in this case, but the court overruled said [**7]  objections, and allowed said docket entries to be read to the jury, in connection with the receipt offered in evidence by the plaintiff, to show that the defendant's intestate had performed his duties, as constable, in the premises, and therefore the defendant was not liable in this action." The plaintiff excepted to the ruling of the court, "permitting the said entries to be read in evidence, for the purpose aforesaid," but no exception was taken to the ruling that, "the defendant was not liable."
We are of opinion that the evidence of the supersedeas was properly admitted. The Act of Assembly does not contemplate that the constable shall be liable, if the justice of 

 [*516]  the peace takes a supersedeas which is invalid; that would be to make him responsible for the ignorance or mistake, or neglect of another, over whose official conduct he has no control, and to charge the sureties in his bond for the misconduct of one, for whose performance of duty they had not undertaken. When informed by the justice that a judgment has been superseded, the officer has no right to demand an inspection of his proceedings; without which their legality cannot be determined. The argument,  [**8]  on the part of the appellant, would apply, with equal propriety, to a defective injunction or certiorari, which writs are likewise mentioned in the Act as defences to actions of this kind, but we suppose that such process would arrest execution of the judgment, no matter how irregular or insufficient it might be, provided the court had jurisdiction in the premises.
As this portion of the evidence was an answer to the plaintiff's case, we need not pass upon the propriety of admitting proof of the attachments.
Judgment affirmed. 

73 of 196 DOCUMENTS 

THOS. H. FREELAND, JAS. HALL, and others, vs. BARCLAY REYNOLDS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 416; 1860 Md. LEXIS 77 

July 19, 1860, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Equity side of the Circuit Court for Cecil County.

Appeal from an order dissolving an injunction which had been granted upon a bill filed on the 3rd of January 1859, by the appellants against the appellee.

The bill alleges that Gustavus A Thompson, of Cecil county, executed and delivered, bona fide, and for a valuable consideration, to the complainants, a conveyance of certain personal property in that county, which conveyance is filed as an exhibit with the bill; that in violation of the rights of property of the complainants, the defendant, as sheriff of Cecil county, has seized upon this property of theirs, in virtue of process issued against the goods and chattels of Thompson, and has advertised the same for sale, though before so doing he had full notice that such goods and chattels were the property of the complainants, and claims to sell under such executions. The bill then charges that this sale, if made, will greatly injure the complainants and subject them to a long and tedious process at law, to recover damages for the outrage being perpetrated upon them, and that such mode of relief will afford them no adequate remedy in the premises, and that the [**2]  only proper remedy is by injunction prohibiting the sale, and that the judgments on which the sheriff is acting in these proceedings do not, according to the statement of Thompson, exceed $ 450. The prayer of the bill is for an injunction and general relief.

The bill of sale or mortgage, above referred to, is dated the 13th of October 1858, and by it the grantor, Thompson, "of Cecil county," conveys to the complainants, in consideration of an indebtedness to them of $ 1480.77, all his personal property on his farm and premises, in that county, "consisting of horses, a cow, farming utensils, hogs, corn, also a stock of goods, consisting of groceries, dry goods, hardware, hats, caps, shoes, boots, crockery, and all other my chattels and goods of what kind soever, in my store in Port Hennan, in Cecil county aforesaid," conditioned for the payment of said sum, with interest, on or before the 14th of November then next ensuing. This conveyance was acknowledged before a Justice of the Peace for the city of Baltimore, and recorded, in Cecil county, on the 15th of October 1858.

The sheriff's advertisement of sale, also filed as an exhibit with the bill, states that by virtue of five [**3]  several writs of fi. fa., and vendi. exponas in his hands at the suit of different parties against Gustavus A. Thompson, and Charles T. Thompson, trading as partners under the firm of G. A. Thompson & Son, he had seized certain specified articles of personal property, (being of the same description as those mentioned in the above bill of sale or mortgage,) as the goods and chattels of the said G. A. Thompson & Son, and would sell the same on the 4th of January 1859.

The injunction was granted as prayed, and the defendant filed his answer, under oath, (though not so called for by the bill,) in which he admits that Thompson executed the paper filed with the bill, and that he, the defendant, as sheriff, levied upon and advertised for sale the property as mentioned in the said advertisement. He avers that several of these executions were issued and placed in his hands before said paper was recorded and became liens on the property, which could not be invalidated by any conveyance subsequently executed or subsequently recorded. He further avers that this paper is not a valid and effectual bill of sale or mortgage of the remaining property in the possession of the grantor, except as [**4]  to the parties thereto, because it was not properly acknowledged before a Justice of the Peace of Cecil county, and hence the complainants are not authorized by law to set up their title against the defendant, or any of the creditors of Thompson. He denies that the complainants have any title to remedy in equity, and avers that if the matters stated in the bill give them any cause of complaint their remedy is full and complete at law.

A motion to dissolve was then made. No testimony was taken, and on the 20th of April 1859, the court (PRICE, J.) passed an order dissolving the injunction, in which order it was stated, that the cause stood "ready for hearing on the motion to dissolve." From this order the complainants appealed.  

DISPOSITION:
Order affirmed with costs.  

HEADNOTES:

An injunction will not lie, to restrain proceedings on an execution levied upon goods in a store, and other personal property, claimed by the complainant, under title from the party against whom the execution issued; the complainant's remedy is adequate and complete at law. 

COUNSEL:
Benj. C. Barroll, for the appellants, argued that the bill can be sustained on several grounds:

1st. The appellee had seized and was about to sell the individual property of Thompson, to satisfy debts due by the partnership, and this was a ground for interference by injunction. In 3 New York Legal Observer, 288, it is said by Judge Ware: "If a creditor of one partner attaches partnership property, his attachment only [**5]  holds the right or interest which the partner shall be found to have in the property after an account is taken and the joint creditors are paid. The equity of each class of creditors against their proper fund, certainly seems to be stronger than that of the other class, who never could have looked to it for their security, except so far as there might be a surplus after discharging its own proper liabilities; the general rule, therefore, has its foundation in natural equity and it is established by the law." He cites Kent, 65, note c., (5th Ed.) Story's Part., sec. 363. See, also, 2 Md. Rep., 1, Glenn vs. Gill.

2nd. A second ground for interference by injunction is found in the fact that the appellee, as sheriff, had seized and was about to sell a large mass of personal property, to satisfy some five or six executions issued in behalf of different plaintiffs, by reason of which, there was a commingling of so many and such varied interests that there could be no adequate redress, without complicated and vexatious litigation; all who directed the sheriff to seize and sell were co-trespassers with him and liable in damages.

3rd. Another ground upon which the jurisdiction can [**6]  be maintatned is, that of preventing a multiplicity of suits, either against the plaintiffs directing the executions, or the necessity of actions of replevin against the purchasers. The number of replevin suits necessary to get back the property would have been utterly ruinous to the appellants.

4th. The court will perceive that the character of the mischief, in this case, was of very difficult computation in damages, from the fact that the proceedings of the appellee were the destruction both of the store and the farming operations being carried on for the benefit of the appellants, and a sale for cash, in mid-winter, was exceedingly detrimental to their interests, even taking the limited view that they were equitable entitled to the surplus after the executions should be satisfied.

5th. Upon the theory of the appellee, that at law the bill of sale conferred no title to the property in the appellants, then, if the appellee was a trespasser, the remedy of the appellants was solely in a court of equity, by injunction; and that the appellee was a trespasser, is insisted on upon the ground that it was unlawful to levy, and sell under, five executions, in the manner set forth [**7]  in the advertisement of sale; there should have been a separate levy, appraisement and sale in each case.

6th. The rule which is applied to a case of trespass to real property, is not applicable to a case like the present; a mortgage being regarded in equity as a mere security for a debt, to be enforced in equity, the rights of the mortgagee are jealously guarded and protected.

7th. And where a bill discloses sufficient matter, upon which to base the jurisdiction of the court, it is not necessary to allege any specific ground for the court's interference. In this case, the ground for the jurisdiction appear in the bill, taken in connection with the deed of mortgage and the advertisement of sale, which are made and considered parts of the bill. The appellee sets up, as a fact to invalidate the title of the complainants, the possession of Thompson, and says that the inference is irresistible that Thompson continued in possession, and that there is nothing to show any delivery to the complainants. This possession is a fact to be proved, like any other fact, not a matter to be guessed at by the court; but the advertisement did not assert or even intimate, that the goods were [**8]  in the possession of Thompson. And even if they had been found in his possession, the appellants insist that the appellee, having full notice that they were the property of the appellants, before he levied upon them, cannot set up, in equity, any defect in the acknowledgment or registry of the mortgage. The sole object of registry is to give notice, and, if a party has notice, it is a fraud in him to attempt to circumvent the party who, by mistake or accident, has failed to perfect his title by a proper registry.

John A. J. Creswell, for the appellee:

It is settled law, that the power of a court in issuing injunctions should be exercised with extreme caution, and applied only in very clear cases, otherwise, instead of becoming an instrument to promote the public as well as private welfare, it may become a means of extensive, and perhaps of irreparable, injustice. 2 Story's Eq., sec. 959, b. 12 Md. Rep., 318, Nusbaum & Bowes vs. Stein, et al. Now, upon what grounds can an injunction be claimed against a sale of property, unless to prevent irreparable mischief, or multiplicity of suits, or complicated and vexatious litigation? In this bill, no such allegation is made. It only [**9]  alleges, that the sale, if made, will subject the complainants "to a long and tedious process to recover damages for the outrage being perpetrated upon them." There is nothing said of any special value attached to the property, cr to any part of it. Just such allegations might be made in every case where there is a dispute about title, and if this bill authorizes an injunction, it is difficult to conceive of any proceeding for a sale which could not be peremptorily stopped by order of a court of equity. A mere complaint of the "law's delay," is not a ground for injunction. There must be special equities. And even in cases of irreparable damage, the mere averment that the case is one of that sort is not sufficient to justify the intervention of the extraordinary power of the court. The facts on which it rests must be stated. This has frequently been ruled by this court in relation to trespasses to real estate, as in White vs. Flannigain, 1 Md. Rep., 539, and Ches. & Ohio Canal Co. vs. Young, 3 Md. Rep., 480. And why should not the same doctrine hold in regard to trespasses to personal property? In either case the court must be satisfied from the bill itself, that the apprehension of [**10]  the injury is well founded.

But again, the complainants must show title, otherwise an injunction will not be granted. The conveyance from Thompson to them, on which they alone rely as passing the title as against Thompson's creditors, is not valid, because not properly acknowledged in the county where the grantor resided. 2 Gill, 150, Byer vs. Etnyre. There is nothing to show delivery of the property, and the inference is irresistible, that the grantor remained in possession after the execution of that conveyance, which rendered its due acknowledgment and recording necessary to pass the title, as against the creditors of the grantor.

But the remedy, if the complainants have any, is full, perfect and complete at law. Besides their right to recover possession of the property by replevin, after the sale, they could have maintained an action at law against the appellee, as sheriff, if the property seized or levied upon had really belonged to them. 3 H. & J., 499, Bruce vs. Smith. 7 H. & J., 60, Cromwell vs. Owings. 10 Md. Rep., 14, Trieber vs. Blocher.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*421]  BARTOL, J., delivered the opinion [**11]  of this court:
In the opinion of this court, the order appealed from in this case ought to be affirmed. There is nothing in the record to entitle the appellants to relief by injunction. Their remedy is adequate and complete at law. The case of Lewis and others vs. Levy, decided at the present term, (ante, 85,) is conclusive of the question presented by this appeal. See, also, 14 Md. 258, and 3 Randolph 25 and 170.
Order affirmed with costs. 

74 of 196 DOCUMENTS 

CALEB S. MALTBY, surviving partner of HOLT & MALTBY, vs. THE NORTHWESTERN VIRGINIA RAIL ROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 422; 1860 Md. LEXIS 78 

July 19, 1860, Decided 

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

Assumpsit, brought on the 29th of December 1855, by the appellee against the appellant, as surviving partner of the firm of Holt & Maltby, to recover certain unpaid instalments of an alleged subscription for 150 shares of the capital stock of the Northwestern Virginia Rail Road Company, made in the name of the firm by the deceased partner, Dan. Holt, in his life time. Plea non assumpsit.

1st Exception. This exception, with the evidence in the cause, is fully stated in the opinion of Chief Justice Le Grand.

2nd Exception. The plaintiff, after the evidence had been offered, asked the three following instructions to the jury:

1st. If the jury believe, from the evidence, that a partnership, in business, existed between Dan. Holt and Caleb S. Maltby, for some years prior to the subscription to the capital stock of the plaintiff, that has been offered in evidence, and existed when that subscription was made; and if the jury shall believe that, during that time, the said firm, under its partnership name, bought and sold stock in the Baltimore & Ohio Rail Road Company, subscribed to the capital stock of the York & Cumberland [**2]  Company, purchased and exported goods and merchandize to California, owned, in whole or in part, the barque Hebe, which was dispatched by them to California, owned also the schooner Swan, which was employed by them, from time to time, in the coasting coal trade, purchased real estate in the city of Baltimore, purchased and managed wagons and teams of horses for the transportation of oysters from Frederick city and from Cumberland, prior to the completion of the Baltimore and Ohio Rail Road, to the western country, purchased and owned real estate in the State of Virginia, all of which transactions were apparently on the joint account of the members of said firm, as partners under the name aforesaid; and if the jury shall further believe, that during the period of the transactions, above referred to, the said firm, by Dan. Holt aforesaid, subscribed, in the partnership name, to one hundred and fifty shares of the capital stock of the plaintiff, then there is evidence from which the jury may infer the authority of the said Holt to bind the said firm by such subscription, so far as liability to the plaintiff is concerned, in which event the plaintiff will be entitled to recover in this [**3]  action any unpaid instalments due on said subscription, with interest from the dates when such instalments were payable, even though the jury should find that the principal business of the said firm was the catching, preparing and forwarding oysters from Baltimore to the western country.

2nd. If the jury shall find, from the evidence, that Dan. Holt and Caleb S. Maltby were partners, in Baltimore, at the time of the subscription, offered in evidence in this cause, in the business of catching, preparing and transporting oysters to the western country, and that, for the purpose of facilitating their said business, they owned, as partners, and managed teams of horses and wagons to forward their oysters, first from Frederick city and afterwards from Cumberland, westward, prior to the completion to Wheeling of the Baltimore & Ohio Railroad; and if the jury shall further believe that the rapid transportation of oysters westward was important, if not essential, to the business of the said firm, and that there was a reasonable expectation that said transportation would be facilitated by the completion of the Northwestern Virginia Railroad and its western connections, then the said subscription [**4]  came so far within the scope of the said partnership as to authorize the said Dan Holt to make the same on partnership account, and the plaintiff is entitled to recover in this action any unpaid instalments due on said subscription, with the interest from the dates when such instalments became payable.

3rd. This prayer, after stating the evidence offered by the plaintiff, consisting of its charter and those portions of the General Code of Virginia, referred to therein, the record book of the company, showing the proceedings of the meeting of the stockholders for the election of officers, and the organization of the company, the proceedings of the board of directors of the 4th of August 1851, authorizing the persons therein named to open books of subscription to the capital stock of the company, in the city of Baltimore, and the proceedings of said board calling for instalments upon the capital stock, the subscription upon which this suit is brought, and the receipts of the company given to Holt & Maltby, for the first and second instalments, which were paid in the life-time of Holt, concludes thus: "Whereupon, the plaintiff prays the court to instruct the jury, that if they found [**5]  the above facts, then there is sufficient evidence of a subscription of one hundred and fifty shares to the capital stock of the Northwestern Virginia Railroad Company, in the name of Holt & Maltby, to bind the party or parties legally responsible therefor."

The defendant then offered nine prayers, as follows:

1st. That the paper offered in evidence by the plaintiff, and admitted by the defendant to have been signed by the late Dan. Holt, in the name of Holt & Maltby, is not, per se, a complete and effectual subscription for 150 shares of the capital stock of the plaintiff, even if the jury should find, from the evidence, that the same was signed by said Holt with the knowledge and assent of the defendant.

2nd. That under the provision of the Act of incorporation, offered in evidence by the plaintiff, and under the provisions of the code of Virginia, prescribing general regulations for the incorporation of railroad companies, also offered in evidence by the plaintiff, the plaintiff is not entitled to recover in this case, unless, in fact, books were opened for subscriptions to the capital stock of the plaintiff, in Clarksburgh, under the direction of the commissioners [**6]  named in said Act, not less than three in number, or at some other place designated in that behalf, by at least three of the said commissioners named in said Act, and that the burden of proof is on the plaintiff to show that books of subscription to the capital stock were so opened.

3rd. That there is no evidence in the cause from which the jury can find, that books of subscription to the stock were so opened as specified in the defendant's second prayer.

4th. That if the jury shall find, from the evidence in the cause, that the signature, mentioned in the defendant's first prayer, was procured by an individual who went about soliciting subscriptions, then such signature was not a valid and binding subscription for stock, unless the jury shall find, from the evidence, that such individual was appointed or constituted an agent, with power to act separately as agent, to receive such subscription, by at least three of the commissioners named in the said Act of incorporation, or by the president and directors of the plaintiff, and that the burden is on the plaintiff to show that such individual was so appointed or constituted such agent.

5th. That, unless the jury find,  [**7]  as a fact, that a subscription for stock was made, in the name of Holt & Maltby, by some person acting in that behalf, as attorney, under and in virtue of the paper offered in evidence by the plaintiff, and was so made in the lifetime of the said Dan. Holt, then the said firm of Holt & Maltby, were not constituted, and did not become, by virtue of said paper, subscribers for the shares of the stock of said company, affixed to the name of Holt & Maltby, in said paper.

6th. That unless the jury shall find, as a fact, that at least 3000 shares of the capital stock of the plaintiff were actually subscribed, in a book or books of subscription opened by said commissioners named in said Act of incorporation, or by at least three of the said commissioners, before the instalments, demanded in this suit, were called for, then the said instalments were not lawfully demanded and cannot be recovered in this suit, and that the burden is on the plaintiff to show that such number of shares were actually so subscribed before said instalments were called for.

7th. If the jury shall find from the evidence in this cause, that the defendant was absent at the time the subscription was made by [**8]  the late Dan. Holt, to the paper offered in evidence by the plaintiff, and that he did not assent to the making of said subscription before, or at the time the same was made, or since, and had no knowledge that the same was made, until after the decease of the said Dan. Holt, and that the defendant had no knowledge of the respective payments of $ 375 and $ 1500, appearing to have been made, respectively, on the 16th of December 1852, and the 8th of January 1853, and that he never assented to the said payments, or either of them, and that as soon as he knew of said subscription, and of the said payments, the defendant, on the day of its date, addressed and delivered to the administrators of said Dan. Holt, the letter dated the 11th of December 1854, which has been offered in evidence by the defendant, and that he, at all times, refused to recognize the said subscription as binding on the said firm, then the defendant is not estopped from denying his liability in this action upon the issue joined in this case.

8th. That even if the jury shall find, from the evidence in the cause, that the signature of the name of Holt & Maltby was made by Dan. Holt in his life-time, and that, at [**9]  the time of making of such signature, the said Holt and the defendant, Maltby, were engaged in business in the city of Baltimore, in the gathering, pickling and vending of oysters, and also in certain other branches of business, but that the business of subscribing for stocks in Virginia or other railroads was not a part of the ordinary or authorized business of their said partnership, the said signature is not binding on the defendant, unless the jury shall find that the same was made by the authority of the defendant, or with his previous or subsequent assent.

9th. That unless the jury shall find, from the evidence in the cause, that a notice or notices was or were given to the firm of Holt & Maltby, or to the defendant, as surviving partner, of the calls, made by virtue of the resolution offered in evidence in this case, by the plaintiff, and dated the 3rd of July 1854, (in case they shall find that such resolution was passed,) then the present suit for the recovery of such instalments cannot be maintained; and that the letter of the defendant, dated the 11th of December 1854, offered in evidence by the defendant, is not legal and competent evidence to prove such notice or [**10]  notices, and that the notices in the Patriot and the American, offered in evidence by the plaintiff, under the respective dates of August 11th, 1854, and October 3rd, 1854, are not sufficient evidence of such notice or notices.

The court (LEE, J.) rejected the first and second, and granted the third, prayers of the plaintiff, and granted the first, and rejected all the other prayers of the defendant, but granted his seventh prayer with this modification: "Unless the jury shall believe, from the facts set forth in the plaintiff's first prayer, that the subscription in question was authorized by the scope of the partnership existing between the said Holt & Maltby." The court also gave the following instruction to the jury:

"If the jury shall find, from the evidence, the facts set forth in the plaintiff's first prayer, and that the buying and selling and trading of the firm of Holt & Maltby, therein referred to, were, under the circumstances of this case, partnership transactions, out of which profits and losses were to be realized or borne by the said Maltby & Holt, as co-partners, and were within the scope and purposes of their partnership, and for the promotion and benefit [**11]  thereof, then the plaintiff is entitled to recover, unless the jury shall find that the subscription to the stock of the Northwestern Virginia Railroad Company, to recover which this suit is brought, was an individual undertaking of Holt, and for his advantage alone, and was never recognized, or acquiesced in, or approved by, the said Maltby, during the life-time of the said Holt."

The defendant excepted to the granting of the plaintiff's third prayer, to the rejection of his prayers which were refused, to the granting of his seventh prayer as modified by the court, to the modification of said prayer as offered, and to the instruction given by the court.

The verdict was in favor of the plaintiff, for $ 6793.91, damages and costs, and from the judgment thereon the defendant appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

The fact that a particular shipment, made by a firm, was the result of an antecedent private agreement between the partners, does not affect the responsibility of the firm to the public, nor the rights of the plaintiff, having had no notice thereof, who is suing the firm on a contract made by one of the partners in the name of the firm.

The main business of a general partnership was the catching, packing, transportation and selling of oysters to western country, but it was proved that the partners formerly owned a line of wagons, that they purchased, held and sold real estate in their joint names, owned vessels which they employed in the coasting trade, and subscribed for and purchased and sold stock in railroad and other companies. HELD:

That, from this evidence, it was competent for the jury to find that a particular subscription for stock in a railroad company, made by one partner in the name of the firm, was within the scope of the partnership and in the course of its business.

Under the limitations of a special partnership, one partner has no power to exceed them in his dealings, and if the party with whom he deals has knowledge of the nature of the partnership, he is estopped from holding the other liable on such a contract.

Where the transaction is wholly unconnected with and beyond the scope of the partnership, the firm is not bound by any contract of a single partner, though the party implicitly trusted on the credit of the firm.

But each partner is the accredited agent of the rest, whether they be active, nominal or dormant, and may transfer, pledge, exchange or dispose of the partnership property and effects for any purposes within the scope of the partnership and in the course of its business.

As a general rule, strict compliance with its charter, as to organization, must be shown by a corporation seeking to enforce payment of subscriptions to its stock, but in some cases compliance will be presumed and in others it may be waived.

Payment of instalments on a subscription to its stock is a sufficient recognition of the legal existence and organization of a corporation, by the subscriber so paying, to enable it to recover the remaining instalments from him.

A prayer, that upon certain facts being found by them, the plaintiff is entitled to recover, "unless the jury shall find that the subscription, to recover which this suit was brought, was an individual undertaking of one of the partners," &c., is erroneous in assuming the fact of the subscription, instead of leaving it to be found by the jury.

In an action, by a corporation, to recover subscriptions to its stock, an instruction that upon the finding of certain facts, the plaintiff is entitled to recover, but omitting the material facts of the proceedings of the corporation calling for the instalments and notice to the defendant of these calls, is erroneous; no matter how clear the evidence may have been to prove these omitted facts, it was necessary for the jury to pass upon it.

A prayer, that if the jury found certain facts enumerated therein, "then there was sufficient evidence of a subscription," &c., is erroneous; it was calculated to mislead the jury, who might well have supposed the court was instructing them as to the sufficiency in fact of the evidence to prove the subscription.

It is competent for the court to pass upon the legal sufficiency of evidence to go to the jury as tending to prove a given fact, but it is an invasion of their province to instruct them that the evidence is sufficient to prove the fact.

The legal sufficiency of evidence is for the court to determine, but its weight, or its sufficiency to establish another fact sought to be inferred from it, is exclusively for the jury.  

COUNSEL:
Wm. Schley, for the the appellant, argued:

1st. The first exception is well taken. The evidence had shown that the oyster business was the proper business of the partnership, and the effect on the part of the plaintiff was to show by proof of particular transactions in the partnership name, or on the partnership account, that the firm of Holt [**12]  & Maltby was engaged in a miscellaneous business, so as to make the act of Holt, in agreeing, in the name of the firm, to take stock of the plaintiff, binding on his partner. One of these particular transactions was a shipment to California in 1848 or 1849. Now, if the defendant had been permitted to show that such shipment was the result of a special agreement in that behalf, it would have been evidence tending to rebut the the presumption of the right of either partner of his individual volition, to embark the partnership in transactions outside of the proper business of the partnership. A special venture on joint account, by special agreement between partners, would negative and thus disprove the right of one of the parties to embark in an outside transaction without the previous consent of the other. 4 H. & McH., 350, Brown vs. Duncanson & Ray. 2 H. & J., 396, Bryden vs. Taylor. 6 Md. Rep., 5 Manning, Stimpson & Co. vs. Hays. 4 Md. Rep., 283, Thurston vs. Lloyd. 19 Johns., 154, Foot vs. Sabin. 22 Penn. State Rep., 80, Cooper vs. McClurkan. Levi on Merc. Law, 139 to 144. 1 Bos. & Pull., 539, Bolton vs. Puller.

2nd. In granting the plaintiff's third prayer, the court decided [**13]  not merely that the facts forming the hypothesis of that prayer, if found by the jury, furnished evidence of a subscription by the firm of Holt & Maltby, but sufficient evidence of that fact. Now, the incorporation of the plaintiff, the proceedings of its board of directors, the calls for instalments, the payment of these instalments in the life time of Holt, and the giving of receipts for such payment, did not establish, as matter of law, the liability of the defendant, inasmuch as it was admitted that the defendant was not in Baltimore when such alleged subscription was made, nor when said payments were made; and it was further admitted that the defendant as soon as called on for said subscription, refused to acknowledge it as binding on the firm, and has ever since denied its validity. The prayer ought to have left it to the jury either to find that Holt, in making such subscription, was acting within the scope of the business of the partnership, or that he acted, in making it, with the consent of his partner, or that the defendant, with knowledge, subsequently ratified his act by acquiescence or otherwise. Again, the conclusion of the prayer, that if the jury found the facts stated [**14]  in it, there is sufficient evidence of a subscription to bind "the party, or parties, legally responsible therefor," without stating who were bound, makes the whole prayer a mere abstraction, and, therefore, calculated to mislead the jury. Besides these objections, the prayer does not embody, as a part of its hypothesis to be found by the jury, that the subscription was, in fact, made by Holt in the name of Holt & Maltby, but assumes that material fact; and it also assumes, as matter of law, the invalidity of all the several objections raised by the prayers of the defendant in relation to the alleged subscription.

3rd. The defendant's second, third and fourth prayers deny that an effectual subscription was made. They are based on the express provisions of the Code of Virginia, prescribing general regulations for the incorporation of railroad companies, and on the theory that exact compliance with those regulations was a condition precedent to the legal incorporation of the plaintiff. If the matter was material, the third prayer ought to have been granted, as there was certainly no evidence from which the fact could have been found. The fourth prayer stands on the proposition that [**15]  a complete subscription is a contract, and therefore it requires the assent of the company to the subscription, if made in fact, in order to the perfection of the contract, otherwise there would not be any privity of contract. In support of the positions contained in these prayers, see 2 H. & G., 478, Agnew vs. Bank of Gettysburg; 13 Illinois, 504, Burnet vs. Alton & Sangamon R. R. Co., 31 Maine, 470, Kennebec & Portland R. R. Co. vs. Kendall; 2 Gray, 277, Stoneham Branch R. R Co. vs. Gould; 39 Maine, 571, Oldtown R. R. Co. vs. Veazie; 18 Barb., 298, Troy & Boston R. R. Co. vs. Tibbits; 22 Eng. C. L. Rep., 272, Norwich & Lowestoft Nav. Co. vs. Theobald; 14 Eng. Law Eq. Rep., 386, The Galvanized Iron Co. vs. Westeboy.

4th. The defendant's fifth prayer ought to have been granted. The paper signed by Holt was not in and of itself a subscription. It is merely a power to subscribe and in its nature it was revocable, until and unless the power was exercised. It is preliminary to an intended future subscription by some attorney. But there was no donee of the power; it was and is in blank, and no one could validly exercise the power, and no one has done so. 18 Barb., 310, Troy & Boston [**16]  R. R. Co. vs. Warren.

5th. The defendant's sixth prayer affirms substantially the same legal proposition as his second prayer, but the hypothesis is more definitely and precisely stated.

6th. The seventh prayer of the defendant asked that he might not be estopped from denying his liability, leaving it open, of course, to the jury, upon all the evidence, to establish his liability if they should so find on the issue joined. The refusal of this prayer was tantamount to an instruction, that if a partnership of any kind existed, the act of Holt, in the partnership name, is absolutely conclusive on the defendant, even if the jury should find, as matter of fact, that this subscription was outside of the partnership business, and was never assented to by the defendant, but was promptly disaffirmed by him. But the modification, whilst it conceded, as law, that if the subscription was not authorized by the scope of the partnership business, the defendant ought not to be estopped; yet it assumed, as true, the hypothesis of the plaintiff's first prayer, (thereby invading the province of the jury,) and left to the jury to decide (what properly was the office of the court) whether, from [**17]  the facts set forth in the plaintiff's first prayer, the subscription was or was not authorized by the scope of the partnership existing between Holt & Maltby.

7th. The eighth prayer announced an obvious legal proposition. Surely a partner of a firm, engaged in buying and selling merchandize, cannot, without the knowledge or consent of the other partner, subscribe for stock in an Atlantic telegraph, in a line of steamers to Canton, or in a railroad company, in the partnership name or on the partnership account. The authorities cited under the first point abundantly sustain this position.

8th. The ninth prayer assumes that notice of calls is a necessary prerequisite to a right of action. The resolution of the 3rd of July 1854, required payment of the residue, in five instalments, of $ 6 each, payable on the 15th day of September, October, November and January then following, and one instalment of $ 7.50, to be paid on the 15th of February then following--the stock subscribed at Parkersburg and Weston to be paid to the banks, at these places respectively-- at Clarksburg to B. Despard, Esq., and at Baltimore to the Merchants Bank in that city. Personal notice was necessary,  [**18]  and therefore, the notices in the American were not sufficient, nor is it even shown that the defendant was a subscriber to the American; nor was the letter of the 12th of December 1854, sufficient evidence of due notice of calls. 6 Eng. Railway & Canal Cases, 218.

9th. The instruction voluntarily given by the judge below was clearly wrong. Even if the "buying, selling and trading," mentioned in the plaintiff's first prayer, were partnership transactions, non sequitur, that the subscription to the stock of the plaintiff was a partnership transaction; and even if it were so the direction that the plaintiff was, therefore, entitled to recover, unless, &c., (as stated in the instruction,) was wrong, because it excluded the question, whether calls were made, notice given, &c. But besides this, the instruction is radically defective in assuming the fact of the subscription, instead of leaving it to the jury to find it.

John H. B. Latrobe, for the appellee:

The questions involved in the instructions prayed for, are:

1st. Had the plaintiff a standing in court on the proof looking to organization?

2nd. Was the subscription binding in the form in which it was made,  [**19]  admitting it to have been within the scope of the partnership?

3rd. Assuming the sufficiency of the subscription, was it within the scope of the partnership?

Under one or the other of these heads the prayers on both sides will be found to arrange themselves.

1st. Had the plaintiff a standing in court on the proof looking to its organization? The third prayer of the plaintiff, relied, as sufficient evidence of organization, upon the charter of the Northwestern Virginia Rail Road Company, and the proceedings of the meeting of the subscribers in conformity therewith. The defendant on the other hand, insisted that it was necessary to show that books of subscription were opened in conformity with the charter; that there was no evidence that such books were opened, and that it was essential in addition to show that 3000 shares were, in fact, subscribed for before the instalments were called in. But it is submitted that, in granting the prayers of the plaintiff and rejecting those of the defendant, on this point the court below did not err; because the evidence offered of the meeting of the stockholders and the election of officers is prima facie proof that all the previous [**20]  steps required were taken. Angell & Ames on Corp., sec. 635, and cases there cited. 3 Sergt. & Rawle, 29, Commonwealth vs. Woelper. Redfield on Railways, 9, and cases there cited. 5 H. & J., 122, 125, Hagerstown Rail Road Co. vs. Creeger. 4 Gill, 437, Smith, et al., vs. Erb. But there is another question underlying this, which must, after all, determine it: that is, whether the subscription was within the scope of the partnership. If it was, then it does not lie in the mouth of the parties, or either of them, making or bound by it, to deny the valid organization of the other party to the contract. If the subscription was not within the partnership, then, so far as the present action is to be regarded, the question of the organization of the plaintiff is one of utter indifference. Redfield on Railways, 85. The payment of the instalments effectually estops the parties bound by the subscription from objecting to a defective organization.

2nd. Was the subscription binding in the form in which it was made, admitting it to have been within the scope of the partnership? The plaintiff's reliance here is upon the facts set forth hypothetically in its third prayer: 1st. The organization [**21]  of the company. 2nd. The opening of subscription books in Baltimore. 3rd. The agreement signed, "Holt & Maltby, 150 shares." 4th. The call for instalments. 5th. The payment of the first two instalments. Finding these facts, the court held, that the jury must find that there was a subscription sufficient to bind the parties legally responsible. In this connection the defendant's first prayer was offered, which was that the agreement signed by "Holt & Maltby, 150 shares," was not, per se, a sufficient subscription under any circumstances. There is no antagonism here between the parties. The plaintiff's prayer did not rest upon the sufficiency of the agreement per se, but upon its sufficiency when taken in connection with the payment of two instalments under it. The granting of the defendant's first prayer did not, therefore, involve a finding for the defendant if the jury found, in addition, that the agreement was subsequently, in part, executed by the payment of the instalments. The fourth prayer of the defendant, in this connection, required the plaintiff to prove that the individual who obtained the particular subscription, was appointed to solicit subscriptions, by, at least, three [**22]  of the commissioners named in the charter. This prayer was properly rejected, because: 1st. The organization of the company being proved, the adequacy of all prerequisites is to be presumed, and among these the proceedings to obtain subscriptions. 2nd. No matter how or by whom the subscription was obtained, the subsequent payment of the instalments, after the company was organized, was an affirmance of the agreement making it binding on the parties throughout. The fifth prayer of the defendant sought to invalidate the agreement, unless the subscription authorized by it was in fact made on the books of the company. This prayer was likewise rejected and properly; because, if the jury believed, that in pursuance of the agreement, the instalments were paid upon the shares of stock therein mentioned, there was such a recognition on both sides of the mutuality of the contract, as made it unnecessary that there should be an actual subscription on the books of the company. The possession by the company of the agreement, with the name of the attorney in blank, and the fact of its part execution being sufficient evidence of a subscription for the purposes of its charter.

3rd. Assuming the [**23]  sufficiency of the subscription, was it within the scope of the partnership? The instruction on this point was given by the court itself, referring to certain facts set out in the plaintiff's first prayer. The instruction, with the facts, referred to, inserted as a part of it, reads thus: "If the jury shall find, from the evidence, that a partnership in business existed between Dan Holt and Caleb S. Maltby, in the city of Baltimore and elsewhere, under the name of Holt & Maltby, for some years prior to the subscription to the capital stock of the Northwestern Virginia Railroad Company, that has been offered in evidence, and existed when that subscription was made; and if the jury shall believe that, during that time, the said firm, under its partnership name, bought and sold stock in the Baltimore & Ohio Railroad Company, subscribed to the capital stock of the York & Cumberland Company, purchased and exported goods and merchandise to California, owned in whole or in part the barque Hebe, which was dispatched by them to California, owned, also, the schooner Swan, which was employed by them, from time to time, in the coasting coal trade, purchased real estate in the city of Baltimore,  [**24]  purchased and managed wagons and teams of horses for the transportation of oysters from Frederick city and from Cumberland, prior to the completion of the Baltimore & Ohio Railroad, to the western country, purchased and owned real estate in the State of Virginia, all of which transactions were apparently on the joint account of the members of said firm as partners, under the name aforesaid, and if the jury shall further believe, that, during the period of the transactions above referred to, the said firm, by Dan Holt aforesaid, subscribed, in the partnership name, to one hundred and fifty shares of the capital stock of the Northwestern Virginia Railroad; and that the buying and selling and trading of the firm of Holt & Maltby, above referred to, were, under the circumstances of this case, partnership transactions, out of which profits and losses were to be realized or borne by the said Maltby & Holt, as co-partners, and were within the scope and purposes of their partnership, and for the promotion and benefit thereof, then the plaintiff is entitled to recover, unless the jury shall find that the subscription to the stock of the Northwestern Virginia Railroad Company, to recover which [**25]  this suit is brought, was an individual undertaking by Holt, and for his advantage alone, and was never recognized, or acquiesced in, or approved by, the said Maltby, during the life-time of the said Holt." This instruction raised the main question in the case--a question of fact --the nature and extent of the partnership between Holt & Maltby--which the court left to the jury in the broadest manner. Giving this instruction, the court necessarily rejected the eighth and ninth prayers of the defendant and granted the seventh with a modification. The eighth prayer put it to the jury to say, that the "business of subscribing for stocks in Virginia and other railroads, was not a part of the ordinary or authorized business of the said partnership," when they were to find a verdict for the defendant. Now, the jury may well have found that subscribing to Virginia or other railroads, was not a part of the ordinary or authorized business of the firm, and yet have found that the scope of its business, as testified by its transactions generally, was so wide as to bring the subscriptions to such stock, when made, within it. Neither could the court grant the seventh prayer, without the modification.  [**26]  The prayer claimed a verdict for the defendant, on the hypothesis that Holt made the subscription and paid the instalments, and that Maltby knew of neither until after Holt's death, when he at once disavowed them. Now, in granting the prayer with the modification, the court in truth say, that these facts, if proved, would be enough for the exoneration of the defendant, unless the subscription in question was authorized by the scope of the partnership existing between Holt & Maltby. This is, of course, sound law, because the relation of partners being once established, in regard to the transaction, the ignorance by one of the acts of the other, is wholly immaterial. The defendant's ninth prayer puts it to the court to say, 1st. That notice to Holt & Maltby, of the call for the instalments, for which the action was brought, was necessary. 2nd. That the publications in the Patriot and American were not sufficient notice--neither is the fact, that the defendant, the surviving partner, enclosed to the administrators the very notices insisted on as necessary, and found by him in the office of the firm, in Baltimore. Now, admitting, argumenti gratia, that notice was necessary and that the [**27]  newspaper notices were insufficient, there remains but one kind of notice to be given, and that is a special notice, sent to the subscriber's place of business; and the letter of the 11th of December 1854, is the best proof, furnished, too, by the defendant himself, that such special notice was given.

4th. With regard, now, to the exception to the court's ruling, refusing to permit a question to B. S. Holt on cross-examination. The scope of the inquiry, eliciting the cross-examination, was to prove the acts of the firm, as they were apparent to the public, for the purpose of justifying the plaintiff in receiving the subscription on which the action was brought; and, in this view, it was altogether immaterial to the issue, whether the shipment already proved by the witness to have been sent out on joint account, was made with or without consultation with his partner, by one of the firm. The object was to show that the firm of Holt & Maltby did not confine their dealings to the catching, preparing and forwarding of oysters to the west, but that they bought and held, as a firm, real estate, subscribed to stock, conducted wagon lines, owned vessels--among them a coasting schooner [**28]  and a brig, in the latter of which the firm apparently made shipments of butter, &c., to California--thus procuring for the firm a credit with the public, beyond the limits of the oyster business, and authorizing the plaintiff to receive, when made by Holt alone, the particular subscription when made in the name of the firm. See Manning, et al., vs. Hays, 6 Md. Rep., 8. Under these circumstances, the court was right in ruling out the testimony in question. But, again, even were the court wrong the judgment will not be reversed, the appellant having received no injury from the ruling. That the Hebe was owned by the firm was not denied--that she went on a voyage to California, was not denied--and it would matter little whether the voyage was made on account of a stranger, or one of the partners, chartering the vessel for the voyage and paying freight to the firm which owned it-- or whether the firm duly loaded her, relying on the profits of the voyage in lieu of freight. The ruling of the court, therefore, excluding the question referred to, can have worked no injury to the appellant. 2 Md. Rep., 73, Keener vs. Harrod & Brooke. 4 Md. Rep., 289, Thurston vs. Lloyd. "Assuming the instruction [**29]  as an abstraction, still we cannot reverse the judgment, because the defendant was not prejudiced by it." 4 Md. Rep., 426, 429, Cross vs. Hall. 6 Md. Rep., 399, Pratt vs. Johnson. 9 Gill, 7, Harker vs. Dement.

For the reasons above stated, it is submitted, that the court was right in its rulings on the several prayers submitted to it, and that the prayers which were granted are not open to the technical objections to their form, in assuming facts or otherwise, to such an extent as to operate a reversal of the judgment.  

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

OPINIONBY:
LE GRAND; BARTOL 

OPINION:

 [*439]  LE GRAND, C. J., delivered the following opinion:
This action was brought to recover from the appellant, surviving partner of the firm of Holt & Maltby, certain unpaid instalments, claimed to be due on an alleged subscription for one hundred and fifty shares of the capital stock of the appellee, made, in the name of the firm, by the deceased partner, Dan Holt, in his life time.
The plaintiff, to sustain its case, offered in evidence the Act of Virginia, under which it claimed to be a corporation; and also the general railroad law of that State. In addition,  [**30]  it offered the proceedings of the meeting of the subscribers to the capital stock, on the 2nd day of August 1857, for the purpose of organizing the company, as recorded in the minute book of the company, together with the resolution of the president and directors, of August 4th, 1851, under which subscription books were directed to be opened in Baltimore, and a resolution of the 2nd of November 1852, calling for the first and second instalments, to be paid at the Mechanics Bank by Baltimore subscribers. The subscription on which the suit is brought is as follows:
"We, the subscribers, agree to take the number of shares of stock set opposite to our respective names, in the Northwestern Virginia Rail Road Company, and we hereby appoint ----- our attorney, to make the said subscription accordingly on the books of said company.
Holt & Maltby--one hundred and fifty shares, 150 shares."
It was then proved, that, during the life time of Dan Holt, who died in March 1853, the first and second instalments upon the above subscription were paid, the first of $ 375, on the 10th of December 1852, and the second of $ 1500, on the 8th day of January 1853. According to the receipts the payment of [**31]  the instalments purported to be "from Holt & Maltby," on one hundred and fifty shares of the capital stock of the company, standing on its books in their names.
The resolutions of the appellee, of date July 3rd, 1854, calling for the remaining instalments, and the notices of the calls published in the "American" and "Patriot" newspapers, and also a letter from the defendant, dated 11th of 

 [*440]  December 1854, enclosing the notices to the administrators of Mr. Holt, were read to the jury.
It was also proven by the plaintiff, that, whilst the main business of Holt & Maltby was the procuring, preparing and forwarding of oysters to the western country, yet, they did not confine themselves to it, but had formerly established and owned a line of wagons from Frederick westward, prior to the construction beyond Frederick of the Baltimore and Ohio Rail Road; that they purchased and held in their joint names valuable real estate in Baltimore, which, at the instance of the defendant, was divided by legal proceedings after the death of Mr. Holt; that they had a farm in common in Virginia, bordering on waters in which they planted oysters; that they owned vessels engaged in the oyster [**32]  trade; that they purchased and owned a barque, in which they made a shipment of butter, dried applies, and the like, to California, in 1848 or 1849; that they owned a large schooner which they employed in the coasting trade; that they subscribed and paid for stock in the Northern Central Rail Road Company; that they purchased stock in the Baltimore and Ohio Rail Road Company, which they afterwards sold; and the account of the firm, on the books of the last named company, was offered to show the particulars of this transaction. It was admitted, by the plaintiff, that the defendant, Maltby, as soon as called on by the plaintiff on account of the subscription, refused to acknowledge it as binding on the firm, and has, at all times since, refused to acknowledge its validity in any way. And it was also proved, that in no entry on the journal, day-book, ledger or check-book of the firm is the name of the plaintiff mentioned, and that there is no entry of any check on said book for the sum of $ 375, on the 10th day of December 1852, or at any other date; that the check-book under date of 7th of January 1853, shows a check for $ 1500, to H. & M., and on the 8th of January 1853, a check for [**33]  $ 1500 to H. & M.; and it was also proved by the exhibition of the account of Dan Holt in the books or ledger of Holt & Maltby, that he is not charged at the date of January 8th, 1853, or at any other date, with the sum of 

 [*441]  $ 1500. It was admitted that the defendant, Maltby, was not in Baltimore when the subscription was made, or when the payments, as shown by the receipts, were made, and that he did not return to Baltimore until after the death of Dan Holt. It was proven by the witness, Benjamin S. Holt, that the main business of Holt & Maltby was the oyster business, shipping them to the west, and then disposing of them; the same witness proved that the firm of Holt & Maltby purchased the Baltimore and Ohio Rail Road stock as an investment, and also their real estate as an investment of their partnership profits; and afterwards sold said stock, and that they made money out of their transactions in this stock. This is the substance of the testimony.
The defendant, by his counsel, then proposed to the witness, Holt, the following question, which was objected to and the objection sustained by the court:
"Mr. Holt, you have said that Holt & Maltby made a shipment to California,  [**34]  of butter, dried applies, lard and other articles, sometime in or about the year 1848 or 1849; you will please say, whether such shipment was made by either partner alone, without consultation with the other, or whether such shipment was made as the result of an antecedent agreement and assent of both parties?" The refusal of the court to allow this question to be put to the witness, constitutes the first exception.
I think the court properly disallowed the question. If the defendant had succeeded in proving that the shipment spoken of, was the result of an antecedent private agreement between the partners, that would not, looking to the other proof in the cause, have affected the responsibility of the firm to the public; and the rights of the plaintiff would not have been thereby impaired, there being no evidence given or offered to show that they had notice thereof.
The plaintiff offered three prayers, and the defendant nine prayers. Of the plaintiff's, the court rejected the first and second and granted the third; of the defendant's, it granted the first and rejected the remainder, but granted the seventh with a modification; and, also, of its own  [**35]   motion, gave an instruction to the jury.

 [*442]  A question underlying the whole case is, whether the evidence be sufficient to justify a jury in inferring that the particular transaction which is the basis of this case, was within the scope of the business of the firm of Holt & Maltby? The various transactions in which the partners embarked that were, in their nature, entirely distinct from their main business --the catching, packing, &c., of oysters--particularly those relating to the purchase and sale of real estate, and of internal improvement stocks, show, satisfactorily enough, that their business was not confined to dealing in oysters. The only evidence we have of the character of their co-partnership, consists of the transactions in which they were engaged. It is very evident, from the whole tenor of the evidence, that both Holt and Maltby had faith in each other, and that they had joined their capital and exertions in one general enter-prize for weal or woe; in other words, that they made a common fund, enjoying its yields and sharing its losses. The evidence is abundantly ample to establish a co-partnership, embracing such a transaction as the one in dispute. There [**36]  was nothing at all in the testimony from which the contrary could even have been conjectured, except it be that, it was proven that their "main" business was the oyster business. This circumstance surely ought not to control all the other proof on the point. The jury were well justified in believing that, the subscription to the stock of the plaintiff was as well authorized as had been the purchases of stock in other internal improvement companies, which were not only never repudiated, but the profits of which were availed of and enjoyed. There was no dissimilarity in the power employed in these cases; it was the same in all, and was well calculated to notify the world, that dealings in the stocks of railroad companies were within the terms of the co-partnership; indeed it distinctly conveyed that intelligence. There is no doubt, that under the limitations of a special partnership, one of the partners has not the power in his dealings to exceed them; and if the party, with whom the transaction is had, has knowledge of the nature of the partnership, he is es-estopped from holding the others liable on such contract. 

 [*443]  And, also, "where the transaction is wholly unconnected [**37]  with, and beyond the scope of, the partnership business, the firm would not be bound by any contract entered into by a single partner, although the party implicitly trusted on the credit of the firm." Levi on Mercantile Law, 143. On the other hand, each partner is to be taken as "the accredited agent of the rest, whether they be active, nominal or dormant, and has communicated to him all authorities necessary for carrying on the partnership, and all such as are usually exercised by partners in the business in which they are engaged. He is by law held to be praepositus negotiis societatis, or to possess a general mandate to transfer, pledge, exchange or dispose of the partnership property and effects, for any purposes within the scope of the partnership, and in the course of its business;" Ibid., 139, and the authorities there cited. In the present case it was peculiarly the province of the jury to determine, whether or not the particular subject-matter embraced in this controversy was within the scope of the partnership, and in the course of its business. If they believed the evidence, they could not have found the fact otherwise than they did.
It is not contended [**38]  that the mere attaching of the name of the firm to the subscription by Holt, was, of itself, independently of all other circumstances, sufficient to fix the liability of the firm. Whatever advantage the defendant could derive from the assertion of this proposition, he had by the court granting his first prayer. And by the granting of his seventh prayer, with a modification, the jury were required to find, that the subscription "was authorized by the scope of the partnership existing between the said Holt & Maltby." If it was so authorized, then, of course, the subscription was binding as a subscription of the firm. The instruction given by the Superior court, of its own motion, goes even farther than this. It required the jury to find, that the subscription was not an individual undertaking of Holt for his own advantage, but that it was recognized, acquiesced in and approved by Maltby, during the life time of Holt; it was greatly more than the defendant had the right to ask, or the court to 

 [*444]  grant. These two instructions, so far as the powers of Holt, his action, and the concurrence of Maltby in the latter, were concerned, placed the case of the defendant before [**39]  the jury in the most favorable light for him; and he has no cause of complaint against the ruling of the court in these particulars.
There is no doubt that, in general, a strict compliance must be shown with the provisions of the charter, and that, in this case, so much of the Code of Virginia, as is applicable, is made part of the Act of the plaintiff's incorporation. But, in some cases, a compliance will be presumed, and in others, it may be waived. Assuming the authority to make the subscription, and the fact of its having been made, the payment of instalments on it is a sufficient recognition of the legal existence and organization of the plaintiff. That the law will make presumptions in favor of the legality of the proceedings of corporations, is settled by the case of The Hagerstown Turnpike Road Company vs. Creeger, 5 Harris & Johnson 122; see, also, Commonwealth vs. Woelper and others, 3 Sergeant & Rawle 29.
The third prayer of the plaintiff was nothing more than a recapitulation of the testimony, deducing from it the liability of the "responsible" party or parties. If, in my judgment, there be any objection to the prayer, it is to [**40]  be found in its inconclusiveness of sequence, and not elsewhere. It in fact decided nothing, farther than that, if the facts were found, the proper party or parties were responsible, without pointing out who were the parties.
BARTOL, J., delivered the opinion of this court.
A majority of this court are of opinion, that the ruling of the Superior court, in the first exception, ought to be affirmed, and they also concur in the general views of the case which are expressed in the opinion of the Chief Justice; but they think there was error in the last instruction given by the Superior court to the jury.
The formal objection to its phraseology, made by the appellant's counsel, that it assumes the fact of the subscription instead of leaving that to be found by the jury, it is considered 

 [*445]  is sustained by the well established practice in this State, and by numerous decisions of this court.
But the instruction is substantially defective, in entirely omitting material facts which were necessary to the maintenance of the action. These facts were the resolutions and action of the corporation calling for the instalments on the capital stock, and the notice to the defendant of [**41]  the calls. However clear the evidence may have been to prove those facts, it was necessary for the jury to pass upon it. See 4 H. & J. 517. 7 H. & J., 291. 3 Gill, 31. 10 Md. 346. There are many other cases to the same effect.
In the opinion of a majority of this court, the third prayer of the plaintiff was also erroneously granted. In it the jury were instructed, that if they found certain facts therein enumerated, "then there was sufficient evidence of a subscription," &c. It is competent for the court to pass upon the legal sufficiency of evidence to go to the jury, as tending to prove a given fact; but it is an invasion of their province to instruct them, that the evidence is sufficient to prove the fact. The legal sufficiency of evidence is for the court to determine; but its weight, or its sufficiency, to establish another fact, sought to be inferred from it, is exclusively for the jury. Cole vs. Hebb, 7 G. & J. 20, 40. The instruction was calculated to mislead the jury, who might well have supposed that the court was instructing them as to the sufficiency in fact of the evidence to prove the subscription. [**42]  See State, use of Barber, vs. Hammond's Ex'rs, 6 G. & J. 157, 170. Grove vs. Brien, 1 Md. 438.
A majority of this court concur in affirming the action of the court below upon the defendant's prayers, but dissent from that upon the plaintiff's third prayer, and consider there was error in the court's instruction to the jury; the judgment must therefore be reversed.
Judgment reversed and procedendo ordered. 

75 of 196 DOCUMENTS 

JOHN GLENN'S Ex'crs vs. THOMAS D. COCKEY & Wife.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 446; 1860 Md. LEXIS 79 

July 19, 1860, Decided 

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

The late Judge Glenn was appointed trustee in the chancery cause of Worthington vs. Thos. D. Cockey, under a decree dated the 29th of April 1840, in which the real estate of Chas. H. Cockey, deceased, was directed to be sold to pay debts. The land was sold on the 14th of December 1844, for $ 17,000, and an account was stated, in which the sum of $ 11,045.09 was audited to the defendant, Thos. D. Cockey, as devisee of said real estate. This was not, however, a cash balance in the hands of the trustee, but was becoming due in various amounts and at different times, the first payment being due the 1st of April 1846, and the last on the 1st of April 1849.

Prior to the stating of this account, viz: on the 15th of October 1845, Thos. D. Cockey, being largely indebted, executed the following power of attorney to Mr. Glenn: "Whereas, at my instance, my creditors have not all preferred their claims against me in the court of chancery, now I hereby authorise and empower John Glenn, the trustee, to pay all debts due by me, either upon judgment or decree, and any surplus to be paid to me. This authority to be irrevocable till such debts [**2]  are paid, and is for the benefit of said creditors."

On the 12th of February 1848, the said Cockey, still continuing largely indebted, executed a deed, conveying to Mr. Glenn "all his real and personal estate of every kind, character and description, in trust, that the said John Glenn shall and may, at any time or times hereafter, sell, either at public or private sale, and upon such terms as he may think proper, the whole of said estate, or such part or parts thereof as may be necessary, and out of the proceeds to pay all debts and liabilities of the said Thos. D. Cockey, now existing, and as to the residue of said trust estate and property, if any there should be, in trust, to pay over to Sally Cockey, his wife, the rents, issues and incomes thereof, during her life, for her sole and separate use," &c.

Under this deed Mr. Glenn sold, in November 1849, real estate to the amount of $ 1000, and in November 1850, to the amount of $ 3254. These sums, together with the $ 11,045.09 above referred to, constitute the trust fund in the hands of said Glenn, who died in July 1853, and the object of the present bill, filed on the 4th of October 1858, by the appellees against the executors [**3]  of Glenn, is to obtain an account of the application of this money, and payment over of the balance to the complainants.

The bill states that the complainants do not know what particular property the said Glenn sold under said deed of trust, or what amounts he received therefrom, or what amount of debts have been paid by him, and what is now due, but the complainants charge that all the debts of said Thos. D. Cockey have been paid, except a balance to Rachel R. Cockey, and a balance to Susan G. Ritner, formerly Cockey, the amounts of which the complainants are unable to ascertain without an account of the payments made to them by Glenn, and the bill then prays for an account of the trust, the appointment of a new trustee in place of said Glenn, and for general relief.

The executors answered the bill, and filed an account, stated from the books and papers of their testator, showing the application of the fund to the payment of debts under the power of attorney and deed of trust, and leaving a balance, after deducting five per cent. commissions on the whole amount disbursed, due the estate of their testator, as trustee, and assenting to the prayer of the bill for the appointment [**4]  of a new trustee.

The cause was then referred, by consent, to a special auditor, to state such account or accounts as may be necessary, or as either party may require, from the proofs and pleadings in the cause, and such other evidence as either party may produce before him, on three days notice to the opposite party; said accounts, when stated and reported, to be subject to exception and future order of the court thereon.

Testimony was then taken, and a report made, and several accounts stated by the auditor. Account A is a statement of the sums received by the trustee, and account B a statement of the claims paid by him under the power of attorney and deed of trust, so far as satisfactorily proved. By account C, between the trustee and the trust fund, allowing the trustee a commission of five per cent. for his disbursements, a balance of $ 2212.50 is found due the trust fund, including interest up to the date of the auditor's report. Account D, stated at the instance of the complainants' solicitor, allows the trustee only two and a half per cent. commissions, and from the date of the last disbursement interest is charged, with annual rents, and, at the time of such rents,  [**5]  is added to the principal, and the interest is thus compounded. Account E, stated at the instance of the defendants' solicitor, differs from account C, in some of its items, but chiefly in the principles upon which it is stated, in reference to which the report states:

"In stating account C the auditor adopted the following method. The amount distributed by the auditor's report in the case of Worthington vs. Cockey, to other parties than Thomas D. Cockey, exceeding the amount of the cash payment, the trustee was credited with that excess and interest allowed on it, until the time when the first interest note became due, when the amount of that note is applied towards its payment; the interest note being, however, insufficient wholly to discharge this excess, interest on the balance is allowed to the trustee until the next instalment becomes due, and that instalment is applied to paying this and all other claims previously paid by the trustee, with an allowance of interest on such claims up to that time. This left a balance in the hands of trustee, and since that time there has been at all times a balance in his hands. It was the duty of Mr. Glenn, under the power of attorney,  [**6]  to apply the funds, from time to time, as they were received, to paying off the judgments and claims against Thos. D. Cockey. Now there were judgments and decrees obtained long prior to this time; that in favor of Rachel R. Cockey, for instance, which is still in part unpaid. And as the trustee does not appear to to have applied the funds which came to his hands, as fast as received, the auditor has charged him, in account C., with interest on all balances remaining in his hands. The interest thus accruing, has been first applied towards discharging the claims paid by the trustee, and when the interest failed, then the principal in his hands has been applied in the same way. In no instance, however, has interest been compounded in account C., but has been applied only to extinguishing claims. After all the disbursements have been made, the allowance of five per cent. on the amount of the disbursements has been deducted, and on the balance thus left, interest has been calculated up to the present time.

"By account E., the commission of five per cent. is allowed, not upon the disbursements, but upon the receipts, and out of the first moneys coming into the trustee's hands. Thus [**7]  by the auditor's report, in the case of Worthington vs. Cockey, a balance of $ 11,045.09 was awarded to Thomas D. Cockey, which balance Mr. Glenn, by virtue of the power of attorney, was to receive and apply, as far as necessary, in paying the judgments and decrees against the said Thos. D. Cockey. This balance, however, was not a cash balance in Mr. Glenn's hands, but was becoming due in different amounts and at various times. By account E., five per cent. on the whole of this sum, as well as on the interest, is allowed to the trustee out of the first interest note that becomes due, before a dollar of the principal has been received or disbursed. The principal sums, as shown by account A., are then applied towards paying the several claims mentioned in account B. Interest is charged against the trustee for the balance of the principal, from time to time, remaining in his hands, but the interest so accruing, instead of being applied towards extinguishing the claims against the fund, as in account C., is carried out in a separate column, and charged against the trustee at the close of the account. By this mode the principal is continually lessened, whilst the interest which has accrued [**8]  is allowed to remain idle in the trustee's hands.

"In reference to these differences between accounts C. and E., the auditor begs leave to give the reasons which induced him to adopt the mode used in account C. The greater part of this fund, which came to the trustee's hands, was realized by a previous sale, for the making of which the trustee was paid his commissions in the case in chancery. The trustee in this case, under these circumstances, would seem, not only in reason but according to the testimony of the defendants themselves, to be entitled to compensation, not for receiving a fund already in his hands, but for disbursing it, and that too only for disbursements to parties other than Thos. D. Cockey, to whom, by the order of the court in the chancery case, he was already compelled to pay. The auditor, whilst concurring with the defendants' solicitor, that for the extra labor of disbursing, the trustee was entitled to compensation in addition to that received under the chancery proceedings, and that five per cent., the amount claimed by the defendants was reasonable, did not think the trustee was entitled to this commission in advance or until his labors had been completed,  [**9]  and then only on the disbursements, not the receipts. The idea of taking the commissions out of the first proceeds seems to have originated of trustees making sales under chancery decrees, but the commission is allowed in such cases, principally if not entirely, for making the sale, and that service is performed before any proceeds are realized; but in this case the commissions being allowed for the disbursements, it is difficult to understand upon what principle the compensation should be allowed before the services are performed.

"In reference to the mode of calculating the interest, the auditor supposes it to be well settled law that where a balance is in hand, consisting partly of principal and partly of interest, the interest is always to be first applied towards paying any claim against the fund."

Exceptions were then filed to the ratification of account C. and D.

1st. Because there is no allegation, whatever, in the bill, justifying any allowance of interest, and because there is no claim for interest made in the bill.

2nd. Because said accounts differ from account E., in the allowance of proper credits and commissions, and in the dates of such credits and [**10]  commissions.

Exceptions were also filed by the defendants to the sufficiency of the averments of the bill, to authorize the introduction of any evidence, or the passage of any account, or the rendering of any decree against them, or any of them, touching, or allowing, or adjudging any interest, simple or compound, to the complainants, the said bill not alleging any claim, right or thing whatever, under which said evidence may be given, said account stated or allowed, or said decree passed, and containing no prayer for the allowance of said interest. They say that the bill contains no allegation or averment whatever, of fault, misconduct, negligence or breach of trust, in any shape, actual or constructive, by or on the part of the respondents, or either of them, or their testator, or any right or claim of the complainants to interest, and no prayer for the allowance of interest, without which allegations or prayer, or both, the respondents say no evidence touching said claim to interest is admissible, or can be considered, and no decree allowing interest can be passed.

The court (KREBS, J.) delivered an opinion stating: "After a careful consideration of the proceedings in [**11]  this case, and an examination of the report of the special auditor, and the accounts filed by him, in conformity with the views set forth in his report, and those filed under instructions from the respective solicitors, I have become satisfied that, under all the circumstances of this case, the court should adopt the views and opinions of the auditor as expressed in his report, and for the reasons by which he sustains them." The judge then, differing with the auditor in regard to an item of $ 274.07, which he thought ought to be allowed the trustee, passed a decree ratifying account C., with this modification and directing the defendants to "pay, or bring into this court to be paid unto the complainants, the sum of $ 1938.43, with interest thereon, from the 6th of May 1858 until paid, or brought in as aforesaid," with costs. From this decree the defendants appealed.  

DISPOSITION:
Cause remanded under the Act of 1832, ch. 302.  

HEADNOTES:

Upon a bill by cestui que trusts against a trustee, for an account and general relief, interest may be allowed against the trustee, though not prayed for in the bill, if, under the facts disclosed, it appears equitable that it should be allowed.

Under a trust to pay debts, due on judgments and decrees, or otherwise, balances of the trust fund remained in the hands of the trustee for several years, whilst there were outstanding judgments and decrees to which it should have been applied. HELD:

That simple interest was properly chargeable against the trustee upon such balances.  

COUNSEL:
Oliver Miller, for the appellants, argued:

1st. That the bill contains no allegation or averment, whatever, of fault, misconduct, negligence or breach of trust, in any shape, actual or constructive, by or on the part of the appellants, or either of them, or their [**12]  testator, or of any right or claim of the appellees to interest, and no prayer for the allowance of interest, and that without such allegations, or prayer, or both, no decree allowing interest can be passed. Hill on Trustees, 524, 525. 1 Ves., Jr., 426, Weymouth vs. Boyer. 1 Swanst., 493, Hooper vs. Goodwin. 1 Daniell's Ch. Pr., 439. The account C., therefore, in so far as it allows interest in favor of the appellees, is erroneous.

2nd. That account C. is erroneous, in so far as it differs from account E., in the allowance of proper credits and commissions, and in the dates of the credits and commissions allowed, and that account E. is correct and proper in these particulars.

3rd. That if the bill contained proper averments in regard to interest, the circumstances of this trust, as disclosed by the evidence, and the mode in which it was disbursed by the trustee, do not make out a case for charging any interest as against the trustee for the occasional balances in his hands.

E. Wyatt Blanchard, for the appellees, argued:

1st. That the facts, developed in the progress of the cause, are such as to make the trustee chargeable with interest, whether on the ground that [**13]  he used the trust funds for his own benefit, or neglected to make them profitable for the trust estate. The evidence shows that he received considerable sums, with which he never charged himself, in his accounts with the trust estate, and which he never appropriated for the benefit of the estate. The executors have offered no evidence to show that this money lay idle in his hands, whether as a separate deposit to the credit of the trust estate, or mingled with his own funds. If the trustee made no profit of the money, he is still chargeable with interest for neglect of duty. Under the terms of the trust, his duty was, first, to pay creditors, and secondly, to apply the annual income to the separate use of the wife. The auditor finds a balance in his hands on the 4th of April 1847, and, from that date charges him with interest. Now the evidence shows, that before this date, Mr. Glenn, as counsel for Rachel R. Cockey, had obtained a judgment and decree against Thos. D. Cockey, and which are admitted by the answer to be still unsatisfied. The judgment and decree bear interest against the estate, whilst the trustee retains, unproductive for the estate, an amount sufficient to have paid [**14]  one, if not both. This makes a case in which he should be charged with interest. 1 H. & G., 11, Ringgold vs. Ringgold. 1 Johns. Ch. Rep., 620, Schieffelin vs. Stewart. 3 G. & J., 311, Diffenderffer vs. Winder. 10 G. & J., 186, Comegys vs. State. 11 Ves., 92, Raphael vs. Boehm.

2nd. Interest is computed in account C., according to the established rule. The trustee's disbursements are first applied to the payment of accrued interest, and the balance in reduction of the principal. 1 Johns. Ch. Rep., 17, Connecticut vs. Jackson. 4 H. & McH., 91, Chapline vs. Scott. 2 Bland, 306, Hammond vs. Hammond. Ibid., 585, Brown vs. Wallace. 1 H. & J., 754, Gwinn vs. Whitaker.

3rd. The insufficiency of the averments of the bill to support a decree for the payment of interest, is objected to by the appellants. The bill is for discovery and an account. It was filed because of the ignorance of the complainants of the condition of their estate. It is only after a discovery by the defendants that they have any means of knowing whether there is any balance in the trustee's hands on which interest is chargeable. Interest, earned by the use of trust funds, or charged to the trustee for neglecting [**15]  to make trust funds productive, belongs to the trust estate as matter of right, and is as much the subject of account as the principal fund. 1 Jac. & Walk., 43, Turner vs. Turner. Ibid., 135, Pearse vs. Green. 2 Daniell's Ch. Pr., 1509. 1 Sumner's Ves., 452, and notes. 3 G. & J., 311. 1 H. & G., 11. 1 Johns. Ch. Rep., 527, Manning vs. Manning. 1 Story's Eq., secs. 464, 465, 522. 2 H. & J., 344, Davis vs. Walsh.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*454]  BARTOL, J., delivered the opinion of this court:
The decree of the Circuit court, from which this appeal was taken, confirms the auditor's "Account C.," in charging the trustee with interest, and one of the grounds upon which a reversal is asked, is that, "because the bill contains no allegation of misconduct, negligence or breach of trust, or any claim for interest, none can properly be allowed." In support of this view, the appellants have referred to 1 Hill on Trustees, 524, where the author uses this language: "It may be observed that interest will not be given against a trustee, unless it be prayed by the bill," and to sustain the text, refers to Weymouth vs. Boyer,  [**16]   1 Ves., Jun. 426. Bruere vs. Pemberton, 12 Ves., Jun. 389, and Hooper vs. Goodwin, 1 Swanst. 493. An examination of those cases has not satisfied this court that the principle stated in the text of Hill, however it may in some cases be applicable, can govern the decision of this case.
In 2 Daniell's Ch. Pr., 1507, 1508, 1509, (Ed. of 1846,) this question is considered, and several authorities cited, which establish the principle, that if the circumstances are such, at the time of filing the bill, that a claim for interest did not exist, or could not be known, then it may be allowed, if, under the facts disclosed, it appears equitable, even although not claimed in the bill; and the learned author also refers to cases, in which bills were filed "for the express purpose of enforcing an account, and payment of balances, and 

 [*455]  decrees for interest were made, although no interest appears to have been prayed, nor was the consideration of it reserved." Upon the best consideration we have been able to give this subject, we are all of opinion that the objection to the frame of the bill ought not to be sustained.
Upon the [**17]  proof in the case, we concur with the judge of the Circuit court, in the opinion, that the auditor's account C., in so far as it charges interest upon the trust fund in the hands of the trustee, is correct. In support of this conclusion, see 1 H. & G. 11; 10 G. & J., 185, 186; 1 Johns. Ch. Rep., 535, 536; Ibid., 620, 624, 625; 1 Sum., Ves., Jun. 452, notes 3 and 4; 1 Jac. & Walk. 39, Turner vs. Turner. Ibid., 135, Pearse vs. Green.
Agreeing with the views expressed by the judge of the Circuit court, we think the decree below properly ascertains the amount due from the appellants, on account of the trust funds which came to the hands of the late trustee, and the decree in that respect will not be disturbed.
It does not appear, however, that the trust is completed; some of the debts, for the payment of which it was created, do not appear to be paid in full, although the amount unpaid is not disclosed. For these and other reasons, it may be necessary to appoint a new trustee as prayed in the bill; instead, therefore, of affirming the decree, which orders the defendants to pay, or bring into court  [**18]   to be paid, to the complainants, the sum due, we shall, without affirming or reversing the decree, remand the cause under the Act of 1832, ch. 302, so that such further proceedings may be had as the case may be require.
Cause remanded under the Act of 1832, ch. 302.  

76 of 196 DOCUMENTS 

PERLEY R. LOVEJOY vs. EDWARD IRELAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

17 Md. 525; 1860 Md. LEXIS 82 

July 19, 1860, Decided 

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

In this case, a bill was filed on the 22nd of February 1856, by the appellee against the appellant and one Harlow W. Heath, to vacate and set aside a bill of sale from the said Heath to Lovejoy, as fraudulent as against the creditors of the grantor. Upon bill, answers and proof, the court below (KREBS, J.) passed a decree vacating the bill of sale, and against both defendants for costs. From this decree Lovejoy alone appealed, and the appellee moved to dismiss the appeal.  

DISPOSITION:
Appeal dismissed.  

HEADNOTES:

From a joint decree against several, one defendant alone cannot appeal, without summons and severance, and his appeal so taken will, on motion, be dismissed.

To a bill to vacate a deed as fraudulent as against the creditors of the grantee, the grantor is a necessary party, as well on account of the fraud charged, as because of the title remaining in him for the benefit of creditors.

General rules framed to protect the rights of suitors, and to promote regularity of judicial proceedings, should not be dispensed with to meet the exigencies of special cases.  

COUNSEL:
Benj. C. Barroll, for the motion:

One party alone cannot appeal from a joint decree or judgment against several, without summons and severance. 2 Overt., 189. 2 J. J. Marshall, 72, Young vs. Ditto. 3 How., (Miss. Rep.,) 43, Green vs. Planters Bank. 5 How., (Miss. Rep.,) 12, Duvall vs. Cox. 11 Wheat., 414, Williams vs. Bank of U. S. 7 Pet., 399, Owings vs. Kincannon. 12 Pet., 140, Wilson's heirs vs. Ins. Co. 16 Pet., 521, Todd vs. Daniel. 4 Md. 517, Price & Martin, vs. Thomas & George. 5 Md. 477, Alexander vs. Worthington.

Henry Stockbridge, against the motion:

The Act of 1814, ch. 94, sec. 5, provides, "that all and [**2]  every person or persons" who shall or may think themselves aggrieved by any decree of an equity court, "shall be at liberty in all cases to appeal." No Maryland case can be found in which it has been held that one of several defendants may not appeal, and there are numerous cases in which such appeals have been taken and sustained without question. Most of the cases cited on the other side are cases at law and not in equity, where the practice of summons and severance has never, even in England, been held to apply. Besides, in this case Heath was examined as a witness, and applied for the benefit of the insolvent laws, and was duly discharged thereunder prior to the appeal, and had, therefore, no interest whatever in the decree.  

JUDGES:
This motion was argued in connection with the merits, at the December term 1859 of this court, before ECCLESTON, TUCK and BARTOL, J.  

OPINIONBY:
TUCK 

OPINION:

 [*526]  TUCK, J., delivered the opinion of this court.
Upon the pleadings and proofs in this cause, a decree was passed vacating a deed from Health to Lovejoy, on the ground of fraud as against the creditors of the grantor, and giving costs against both defendants. Lovejoy only has appealed, and the appellee [**3]  having moved to dismiss the appeal on account of the non-joinder of the other defendant, our duty is to inquire whether the appeal lies.
It has always been the practice in this State, to make the grantor a defendant to bills of this kind, and we consider the law to be well settled that he is a necessary party, as well on account of the fraud charged, (Calvert on Parties, 19, 20, 24, 264,) as because of the title remaining in him for the benefit of creditors. Waters vs. Dashiell, 1 Md. 455. This being, so, the decree in this case must be treated as joint against both defendants, not only as to costs, but also as to the relief granted.
We have not been referred to any case in Maryland where the point under consideration has been decided, but there is no doubt that, in cases at common law, a writ of error brought by one of several defendants, could not be maintained. Tidd's Prac., 1189, 1226. The same has been 

 [*527]  held in this country. Duvall vs. Cox, 5 How., (Miss. Rep.,) 12. 3 Ibid. 43, Green vs. Planters Bank. Young vs. Ditto, 2 J. J. Marshall 72. The question has been before the Supreme Court of the United States [**4]  several times, and uniformly disposed of by disallowing the appeal, without reference to the character of the case, whether at law or in equity. In Owings vs. Kincannon, 7 Pet. 399--a case in equity--Chief Justice Marshall, delivering the opinion of the court, said: "Upon principle, it would seem reasonable that the whole cause ought to be brought before the court, and that all the parties who are united in interest ought to unite in the appeal." He also adverted to the general usage of chancery, to make one final decree, binding on all parties united in interest. See, also, Deneale vs. Archer, 8 Pet. 526. These cases were afterwards (Wilson's heirs vs. Ins. Co., 12 Pet. 140,) referred to by Chief Justice Taney, and the same principle applied.
The considerations on which this practice is followed elsewhere, apply in our courts, and ought to have the same effect. Inconvenience may sometimes result to parties in the particular instance, but general rules framed to protect the rights of suitors, and to promote regularity of judicial proceedings, should not be dispensed with to meet the exigencies of special cases. The law [**5]  indicates a mode, by summons and severance, for one party to compel his co-defendant to join in the appeal, or place himself in a position to proceed in his own behalf. Tidd's Prac., 1189.
It is proper to observe that a similar point was ruled at this term, against the motion to dismiss in the case of Easter, et al., vs. Travers, et al., but on the ground that the order appealed from was not joint as against the parties; the court expressly stating that in a proper case such a motion might prevail.
Without expressing any opinion as to the merits of the case, we think the appeal should be dismissed, with costs.
Appeal dismissed.
Note by the Reporter.--In the case of Easter, et al., vs. Travers, et al., above referred to, no opinion was filed by the court, the appeal having been dismissed 

 [*528]  by order of the appellants, after the motion to dismiss had been decided in their favor, and it has not, therefore, been reported. In the argument upon the motion in that case, the same authorities were cited in support of the motion as by the appellee in this case.
At the same term at which the case was decided, the appellant applied for a re-hearing on the motion [**6]  to dismiss, which was granted, and the same was re-argued before LE GRAND, C. J., TUCK and BARTOL, J.
Henry Stockbridge, against the motion:
The question presented by this motion does not appear to have been, at any time heretofore, formally and specifically urged as a ground for the dismissal of an appeal in Maryland, except in the case of Price vs. Thomas, 4 Md. 514, which was a case at law, and where the objection was so obviated before decision, that this court did not decide upon the point. The fact that, in the whole judicial history of our State, no appellant has ever been refused his appeal upon this ground, while so many cases must have been before the court in which the point, if a sound one, might have been made, argues strongly that the motion now under consideration is based neither on law nor sound reason. The importance of the question which it raises cannot be over-estimated. To deny to one defendant the right to appeal, unless all of his co-defendants will concur and join to pray and to prosecute the appeal, is to place every man at the mercy of a reckless plaintiff and a corrupt co-defendant, and gives the inferior court a power which this [**7]  appellant believes was never conferred by the Constitution or laws of the State.
The facts of the case now to be decided, (so far as it is necessary to state them, for a correct decision of the question,) as shown by the record, are as follows: On the 9th of February 1856, Heath executed, for the consideration of $ 750, to Lovejoy a bill of sale of certain goods, chattels, &c., therein specified and named. On the 22nd of February 1856, the appellee, Irelan, filed in the circuit court of Baltimore city his bill of complaint, alleging that said bill of sale was fraudulent, and made for the purpose of hindering, delaying and 

 [*529]  defrauding said appellee, as creditor of said Heath; praying that said bill of sale might be set aside as fraudulent and void; that the said Heath might be required to discover, upon oath, certain matters to him propounded, and that said Heath and Lovejoy might answer the premises upon oath. On the 19th of March 1856, Heath, in person, upon oath, filed his answer to the bill, utterly denying the alleged fraudulent intent, and declaring the whole transaction bona fide. On the 17th of May 1856, Lovejoy, by his counsel, filed his answer to the bill,  [**8]  duly sworn to, denying all the charges of collusion and fraudulent intent, and averring that it was bona fide in every respect. On the 27th of June 1856, the complainant, Irelan, applied to the court, by petition, for an order allowing him to examine the defendants, Heath and Lovejoy, as witnesses in the cause, to sustain the allegations of the bill, and the court the same day passed the order as prayed. On the 11th and 25th of February 1857, Heath was examined as a witness in the cause by the complainant, under the authority of such order; Lovejoy was never called to the stand, nor examined by him. On the 16th of May 1857, Heath applied for the benefit of the insolvent laws, and was duly discharged thereunder. On the 9th of April 1858, the complainant, by his counsel, filed a paper procured from and signed by Heath, in which, in consequence of his discharge under the insolvent laws, he withdraws all objections to his examination as a witness in said cause. On the 3rd of June 1858, the court filed a decree in the cause, annulling and setting aside said bill of sale, as fraudulent and void. And on the 25th of June 1858, Lovejoy appealed.
This was, in fact, rather an action [**9]  in rem. than in personam. Its real purpose was to enable the complainant to reach, by execution, the chattels covered by the bill of sale, by setting aside the interest or property of the appellant, Lovejoy, therein. It sought to recover nothing from Heath, save these chattels; it claimed only those chattels from Lovejoy, and sounded in damages against neither beyond. As between Heath and Lovejoy, the ownership of these chattels could not be questioned. Whatever it might be to the rest of the world, as 

 [*530]  between them the bill of sale was legally valid, and the ownership of the property was absolutely transferred by it. The sole aim, then, being to apply to the payment of Health's debt to Irelan property which, as between Heath and Lovejoy, was absolutely Lovejoy's, Heath never had any real pecuniary interest in the proceeding; was merely a nominal party joined, that any contingent interest therein might enure to the benefit of his creditors. There was a complete and absolute severance of the interest of Lovejoy from that of Heath, ab initio.
The motion is based upon a total misapprehension of the English doctrine of the writ of error, to which an appeal under [**10]  our statute bears some analogy. That rule, in cases of writs of error correctly stated, is that all parties who are joined in a cause with a common interest, and who are jointly aggrieved by the judgment rendered, shall join in suing out the writ and assigning errors, or that by some process there shall be a severance, so that part may proceed without the privity or concurrence of the others. And the reason of this rule (without an understanding of which we shall be liable to mistake the rule itself) is, that as there is no limit to the time of suing out the writ of error, unless all joined or were placed in the position upon the record of being unable to sue out the writ afterwards, the party who had recovered judgment might be vexed with successive writs of error ad infinitum, and obtain no advantage from the judgment recovered It was never the law, that all parties upon the record must join in the writ of error, regardless of the effect of the judgment upon themselves. Any one or more aggrieved by the judgment, is entitled to the benefit of the writ, as wholly independent of the action of his co-defendants, who are not aggrieved, as if they had no existence. None [**11]  are compelled, nay, none are permitted to join in assigning errors, unless they are prejudiced by the judgment. This has been the uniform current of the English decisions from the days of the earliest reported cases to the present, without an exception. In Cannon vs. Abbot, 1 Levinz 210, suit for trespass was brought against three, judgment by default obtained against 

 [*531]  two, and, on trial, verdict in favor of the third. It was held that the two only could bring the writ of error, and the third must not join, because "the judgment is not to his damage." So in Hobart, 70, Parker vs. Sir John Lawrence and Nevil & Wood, a like action against three, judgment against one, nolle prosequi entered as to two. The court disallowed a writ of error brought by all the defendants, and say, "Nevil and Wood should not have joined in this writ of error, for there was no judgment against them, nor they grieved. The writ of error is ad grave damnum." In Lady Cass vs. Title, 2 Strange 683, two of thirteen defendants brought writ of error, and it was held on all sides that "the writ can be brought by these two, ad grave damnum of themselves.  [**12]  " In the Swordblade Co. vs. Dempsey, 2 Strange 892, the court ordered the writ of error amended, because Mary Edwards had joined in it while the verdict was "really no way to her damage." So in Rex vs. Inhabitants of All Saints, Ibid., 1110, the writ was quashed, because some joined in it who "did not suffer grave damnum by the judgment. The same doctrine controls the cases in Cowp., 425; 2 Bl. Rep. 1067; 2 Ld. Raymond 870. And in view of all the cases, Tidd (2 Tidd's Pr., 1135, 1136) lays down the practice as fixed and uniform, that "on a judgment against several parties, the writ of error must be brought in all their names, provided they are all living and aggrieved by the judgment." And he reiterates correctly the reason of this rule of practice. See, also, 3 Bac. Abr., 330, 335.
In this country the rule has never been made broader than in England, and courts (unless controlled by some Legislative Act) have never compelled parties to unite in prosecuting a writ of error, unless they were united in interest. In Porter vs. Rummery, 10 Mass. 64, the court say: "Because, among those who become privies [**13]  by interest in a judgment, or in the property affected by it, and therefore entitled to a writ of error, there may be several and distinct interests, so the remedy for their respective rights may be several and concurrent. Where this happens, each privy to the judgment is distinctly entitled to a writ of error, and to maintain it by himself; and this, 

 [*532]  notwithstanding a release by any other having a like interest in the same judgment, by a distinct interest. The doctrine is the same in Shirley vs. Lunenburg, 11 Mass. 379, and in both these cases, as also in Whiting vs. Cochran, 9 Mass. 532, the court go a step further, and add, that the "plaintiff cannot complain of non-joinder unless injured by it." In every case cited by the appellee, which has any relevancy whatever, and in every one that can be found in the books, the same fact exists, and the error of the appellee springs from his overlooking the fact that the several parties who were held bound to unite in the writ of error, were united in interest, and the failure to unite in bringing the writ, diminished the plaintiff's security. Thus, in 2 Overt 189, [**14]  the judgment was against joint obligors on a bond; in 2 J. J. Marshall 72, it was a judgment for money for which all were liable; in 5 How. 12, the order "affected the rights of the appellants, and also of James Catling;" and the case of Owings vs. Kincannon, 7 Pet. 399, upon which so much stress is laid, has no force whatever as an equity precedent, and forms no exception to the rule as above stated. A bill was filed against many parties; it was afterwards dismissed as to some, abated as to others, and a decree made against six, who were all united in interest; two appealed. Chief Justice Marshall, in giving the decision of the court, with that candor which never failed him, said, that he finds "no precedent in chancery proceedings for the government of the court in this case." The court is therefore driven back upon the Act of Congress (1803, ch. 40) which authorized the appeal, and which says expressly that the appeal "shall be subject to the same rules, regulations and restrictions as are prescribed by law in cases of writs of error." It is, then, no equity decision, and constitutes no precedent for any chancery [**15]  proceeding. As a decision of the Supreme Court of the United States in cases of writs of error, it goes no further than all the other cases go; to the extent, namely, of saying that all who are united in interest, jointly aggrieved by a judgment, should unite in bringing the writ of error.
But is there any unity of interest between this appellant 

 [*533]  and his co-defendant, Heath? Heath was grantor, Lovejoy grantee in the bill of sale. Heath had parted with all his interest in the property sought to be affected by this proceeding, and had received his pay for it. Lovejoy had paid full value for it, and became sole owner. It was a matter of perfect indifference to Heath what became of it, or if he had any interest, his interest was that this proceeding should succeed, and the property, which he had once already been paid for, should then be appropriated to the payment of his indebtedness to this complainant. To Lovejoy, it was all-important that his business should not be broken up, his property taken to pay the debts of Heath, and himself remitted to the desperate chance of his remedies over against Heath. This total severance and even opposition in interest, is recognized by [**16]  the terms of the bill of complaint. The two defendants then severed in their answers, and Heath for himself, and Lovejoy by his counsel, answered the several matters to them respectively propounded. To make the severance yet more complete, the complainant proceeded to change the position of Heath from that of defendant to that of witness. He obtained the special order, made him his witness, and relied upon his testimony. If any principle is established in law, it is, that where a complainant makes one of several defendants his witness, he can obtain, he can seek, no decree against that defendant. This very familiar principle could not have been so far overlooked by the judge below that he would have passed a decree against the witness, Heath, if he had any real interest in the subject-matter. From the moment that the complainant made Heath his witness, a decree against Heath became impossible, and Lovejoy being the only person on record against whom a decree could be passed, he became entitled, even if not so before, under the common law rule, to prosecute a writ of error alone. But this is not all. He applied for and obtained the benefit of the insolvent laws, and thereby was discharged [**17]  from all liability to the complainant, and transferred to his trustee all property and interest, all claim and demand in and to every matter and thing in the wide world. Death could not have severed his 

 [*534]  connection with the case more perfectly. After that, there could be no occasion for any legal process of severance, whether by summons or otherwise; and so, doubtless, thought the counsel of the appellee, when he obtained from Heath his formal withdrawal of all objection to his examination as a witness, and filed it in the cause. If Lovejoy's right to proceed alone in any measure he saw fit to pursue, could ever have been called in question, it could be so no longer. At common law, and under the English rule, he had the same right to the writ of error alone, that he would have had if Heath had been in his grave.
And yet this is not a writ of error, nor does it rest on any common law right. This is an appeal in equity, under Act of Assembly. However desirable it may be to give uniformity to "general rules framed to protect the rights of suitors, and to promote regularity of judicial proceedings," it is not competent for a court to establish one rule of practice, when [**18]  the Legislature has prescribed a different one. Our General Assembly first struck away from chancery proceedings the foundation --the reason--on which the English rule of writs of error rests, and appointing an appeal as the remedy for error in the courts below, provided that all appeals in equity should be taken within nine months from the making of the decree appealed from, and not afterwards.--1785, ch. 72. This Act was a perfect remedy of the inconvenience designed to be avoided by the English courts, in adopting the rule of joinder in writs of error, and shows a clear legislative intent to abrogate the rule itself, so far as equity proceedings in Maryland were concerned. But that there may be no possible mistake, they go further, and by Act of 1814, ch. 94, expressly grant an appeal in equity to "all and every person or persons who shall or may think themselves aggrieved by the decree." The right of appeal is not granted to the parties to the cause as parties complainant and defendant; it is granted to persons as persons aggrieved, and the terms of the Act grant it to the aggrieved persons severally as well as jointly. It is "all and every person or  [**19]  persons who may appeal." And this leaves but one open question in the present cause, 

 [*535]  viz., is this appellant a person who thinks himself aggrieved? a point too plain for serious argument.
Besides, if this appellant could be wrong in all these positions, the motion should not prevail to deprive him of all redress, when every other avenue has been closed by lapse of time. The appeal was taken at once, on the passing of the erroneous decree. The motion to dismiss was not made till a year beyond the nine months allowed for appeal had passed; till Heath was forever barred from appeal, (if he ever had the right,) and till Lovejoy was barred from bringing another appeal, (in place of this which it is proposed to dismiss,) in which he might interpolate an ancillary process of severance. But the policy of the law in Maryland has always been, in all equity proceedings, to do full justice as between the parties, "to bring the merits of the case in controversy fairly to trial;" to deny justice to no one on a naked technicality. To this end the broadest latitude of amendment is allowed, (1 Code, 73,) and this court is prohibited from a simple affirmance or reversal of [**20]  a decree, when the substantial merits of a cause will not be determined by such affirmance or reversal, but may be by further proceedings. 1 Code, Art. 5, sec. 28. In this case a dismissal of the appeal is a denial of justice-- a final disposition of the case without any decision upon the merits of the controversy; and if the court are of the opinion that this appellant has no right of appeal under the Act of 1814, and is not severed in interest from Heath, sufficiently to maintain his writ of error without Heath's concurrence, he maintains that the proceeding for effecting the severance should be taken under the present appeal, without a dismissal, which shall forever deprive him of all redress in the premises.
Levin Gale, on the same side:
The facts important to be considered upon the motion now before the court, are as follows: The appellee filed a bill against Heath and Lovejoy, to set aside a bill of sale of certain chattels made by Heath to Lovejoy--to this bill Heath and Lovejoy each filed separate answers--certain testimony 

 [*536]  was taken, and an order was obtained by the appellee to have Heath, one of the defendants, examined as a witness, and he  [**21]   was accordingly examined. Among other things, it appears that Heath, subsequently to the filing of this bill, applied for the benefit of the insolvent laws. After sundry proceedings, the circuit court of Baltimore city passed a decree setting aside the bill of sale made by Heath to Lovejoy. From this decree Lovejoy appealed, and the motion made now is to dismiss the appeal, because it does not appear that Heath, the other defendant, has joined in the appeal. Can one defendant, under such circumstances, appeal without the consent or active participation of a co-defendant, whose interests are not similar? And, if he can, what steps are necessary to entitle him to take the appeal?
Much confusion has arisen in Maryland, from the fact that in practice we have appeals from the ordinary courts of common law, instead of writs of error. The only mode of correcting the erroneous judgments of a court of general jurisdiction, in matters pertaining to the common law, was by a writ of error either to the court itself, by writ of error coram nobis, or by a writ of error to transfer the cause to a superior or appellate court. An appeal as such from the Court of King's Bench to the [**22]  Court of Exchequer Chamber, or to the House of Lords, is unknown. The only mode known is by writ of error. On the contrary, in matters of chancery, the reverse is the practice; a writ of error to the court of chancery, in matters pertaining to its equitable jurisdiction, is just as much unknown as an appeal is in the courts of common law. 3 Bl. Com., 454, 406. This arose out of the different course of procedure in the practice of the courts of common law and those of equity jurisdiction. In all courts of common law, the commencement of all proceedings is by writ. In courts of equity, the proceedings are commenced by petition. In the common law practice, frequent difficulties occurred, growing in part out of the fact that the original writs were issued out of the court of chancery, (not in its equitable character however,) so that the court before whom it was returnable could not correct the writ. Indeed, down to the 

 [*537]  organization of the present Court of Appeals in our State, it was held that no amendment could be made of the original writ, although an Act allowed the amendment of all proceedings. A writ of error was an original writ, and great strictness was [**23]  required in making it conform to the judgment it was intended to correct. The slightest mistake in the name of the parties, or in the recital of the judgment, was formerly held to be fatal, and the writ was quashed or dismissed, and proceedings had to be taken over again. The writ of error being an original writ, and in the nature of a new action, as much so as a scire facias on an old judgment, it was just as necessary for all the parties against whom the judgment was rendered to join in the writ of error, as it was at common law for two plaintiffs to join in an original action. Indeed, whenever writs of error are now used, the style is preserved, and the parties are termed plaintiffs in error. Unless, therefore, all the parties against whom there was judgment, joined in the writ, there was a variance between the writ of error and the judgment recited. Courts of common law have, however, exercised by way of motion in a summary way, certain equitable powers, controlling to some extent the legal powers of parties. Thus in the case of writs of error, they allowed one plaintiff in error to use the name of the other parties in obtaining the writ. See 2 Wm's Saund., note, p. [**24]  101 e, and 101 f. It is a mistake into which some of the authorities have been led by general expressions, to suppose that the process of summons and severance was used to enable one joint party to obtain a writ of error without joining his co-party in the writ. Serj. Williams, who has treated this subject more fully than any other author, explains that one of several parties could obtain the writ, but he must do so in the names of all. When the case was by the writ brought into the appellate court, it then became necessary for the parties seeking redress to appear and assign errors. And as it was an original action, it was necessary for the parties to appear by attorney; and for that purpose it was necessary, in England, for the attorney to have a warrant authorizing him to appear. Now although one joint party could obtain the writ in the name of 

 [*538]  all, yet he could not execute the warrant of attorney necessary to join his co-party in assigning errors. To obviate this difficulty, after having obtained the writ and brought the case into the appellate court, if his co-party refused to join in assigning errors, he was allowed the writ of summons, commanding such [**25]  party either to come into court and join in the assignment of errors, or else to sever from him and allow him to proceed alone. A careful examination of the note above referred to, will show that this process of summons and severance applied not to the issuing of the writ, but solely to the assignment of errors, and that the process originated not in the inferior, but in the appellate court, and therefore never was the foundation of the right of appeal, but only a subsequent stage of the proceeding. The difficulty thus felt in courts of law, was, however, never known to courts exercising equitable jurisdiction, for the simple reason that they are not controlled by the writ commencing the proceedings, or by the position of the parties, whether joint or several. So much is this the case, that one acknowledged source of equitable jurisdiction arises out of the power of the court to control parties in the exercise of their legal rights, at the expense of the real rights of others; thus an equitable assignee may sue in equity, because of the refusal of the legal party to allow him to use his name at law. And one jointly interested, who refuses to be plaintiff, may be made defendant. The [**26]  same latitude has been universally allowed in England, in appeals from the court of chancery. The appeal is not like the writ of error, to have the record sent up and critically examined, to see whether any form has been omitted or deviated from; it is rather in the nature of a bill of review, by which, on petition, the appellate tribunal looks at the proceedings, and sees whether substantial justice has been done--and this without regard to the position of the parties. It is true that they will not correct errors in the court below on behalf of parties not appealing; but any party may appeal, and on his appeal the whole case, so far as he is concerned, and so far as other parties are affected by his appeal are concerned, is brought before the appellate court, whether they be plaintiffs or defendants. 

 [*539]  Thus Daniel, in his Ch. Practice, (Perkin's Ed.,) Vol. 3, page 1633, says: "Any person who feels himself aggrieved by a decree or order of the court of chancery, is entitled, as a matter of right, to appeal to the House of Lords." And Lord Chancellor Cottenham, in Holmes vs. Henty, 4 Clark & Fin. 149, says: "It is said that it was [**27]  not competent for one of the defendants below to appeal without the others. Such a rule as that, would lead to a denial of justice. There is no such rule of practice in appeals to this house." See, also, Colvin vs. Hartwell, 5 Clark & Fin. 484, where an appeal by one of several plaintiffs in an equity case was sustained. Stewart vs. McDonegal, 13 Irish Eq. Rep. 106. Christ's Hospital vs. Grainger, 1 Macn. & Gor. 460. Numerous other cases might be cited, but the above are deemed sufficient. In none of these cases, nor indeed in any of the cases in England, of appeals in equity, is any thing said about a summons and severance. The only act required, is to petition for an appeal. In New York the same rule of practice prevails in regard to appeals in equity. In Cuyler vs. Moreland, 6 Paige 274, it is said, that a party not aggrieved should not join in the appeal. And in Reid vs. Vanderheyden, 5 Cowen 719, it was considered doubtful as to whether a party had a right to join in the appeal, because of a decree against him for costs. It is believed that, with a few exceptions, the doctrine of the English courts [**28]  on this subject has been generally adopted in this country, and has always prevailed in this State. In the Supreme Court of the United States, however, a contrary doctrine has been adopted. The case of Owings vs. Kincannon, 7 Pet. 399, which is the foundation upon which all the subsequent decisions of that court rest, depended upon the construction of an Act of Congress, and Chief Justice Marshall expressly states, that the court had not been referred to any precedents in chancery practice on the subject.
A case from 2 J. J. Marshall 72, has been cited by the appellee, in which it was held, that one defendant in equity could not appeal alone. But this case is deprived of all weight by the manifest error into which the court fell in confounding 

 [*540]  writs of error with appeals in equity. The judge, in delivering the opinion, says, that one of several parties cannot appeal, and that if his co-defendant refuses to join in the appeal, the party desiring to appeal must sue out a writ of error, and then have a summons and severance. Now writs of error to the court of chancery, at least on its equitable side, are unknown. 3 Bl. Com., 445.  [**29]  2 Daniel's Ch. Pr., 1222. Surely, cases which are founded upon such mistakes of the course of procedure and practice, are entitled to little authority. The other cases cited by the appellee are based upon a similar blunder.
The principles and authorities above recited, lead to the conclusion that, upon general principles, the appeal in this case, by one of the defendants, ought to be sustained. But if we look to Maryland practice and legislation, the right to the appeal is still more clear. Unfortunately, the Acts of Assembly in this State have been very irregular and confused. Oftentimes the same Act of Assembly has been repeated almost verbatim, and then again certain Acts have been passed which assume the existence of previous Acts, of which no trace can be found. And our courts have repeatedly been compelled to acquiesce in the existence of laws, because of a previous general recognition, although there is no legal sanction to be found. In investigating the subject of appeals and writs of error, no one can fail to meet with this difficulty. How is it that in our courts of common law jurisdiction, we have appeals? That such is not the course of procedure in [**30]  common law courts, has been already shown. Yet in Maryland we have appeals extensively in use in cases of common law jurisdiction. It is believed that the practice arose either out of the Act of 1713, ch. 4, or from an earlier statute, which it repealed. This Act, after providing for the mode of staying executions, &c., in its fourth section, declares how appeals and writs of errors shall be prosecuted, namely, by procuring a transcript of the record, and causing it to be transmitted to the appellate court. And the 5th section declares that any appeal made in the manner indicated, shall be admitted by the appellate court in the nature of a writ of 

 [*541]  error. And that when the appeal is demanded, the clerk shall enter the application and make out the transcript of the record. The effect of this Act was to dispense with the necessity of any writ of error, and to obviate all difficulties growing out of the formalities required at common law; for the only thing necessary to be done, was for the party desiring an appeal to demand it, and then the clerk must make out the transcript, and the appellate court were directed to entertain the appeal. No writ of error was necessary after [**31]  that. See Thompson vs. M'Kim, 6 H. & J. 302. See, also, argument of counsel and opinion of the court in the case of Isaac vs. Clarke, 9 G. & J. 107. Jenifer vs. The Lord Proprietary, 1 H. & McH. 535.
It should be remembered, that even according to the strict rules of the common law, one of several defendants could prosecute the writ of error, although in so doing he was compelled to use the names of the other parties. It was only in assigning errors that it became necessary for other parties to join, or, in case of a refusal, for a summons and severance to take place. See 2 Wm. Saund. 101. Now the Act of Assembly of 1713, appears to have been intended, or, in fact, in practice, to have completely done away with the formal parts of the process in writs of error. The writ was dispensed with, and, in practice, the assigning of errors in form has been also dispense with. Can there, then, be any necessity for the summons and severance? Surely not; for among all the cases reported in this State, such a proceeding never appears to have been taken--nay, not even to have been thought of--until the case of Price vs. Thomas, in 4 Md. 514; [**32]  and there the point was avoided by an amendment of the record.
But even if a summons and severance were necessary in it, in cases at common law, such a proceeding was never used in England in equity practice. There, as has been shown by the authorities already cited, no such process was known, and any party affected by a decree was at liberty to appeal. Upon what principle should we in Maryland, at this late day, go back to ancient English practice, and carry it beyond even 

 [*542]  the extent to which it was then formerly carried? But a still greater difficulty occurs if we attempt to apply the practice suggested. According to the decision in Thompson vs. McKim, the demand for the appeal and the bringing up of the record constitute the only steps necessary to be taken. Suppose one of two defendants desires to appeal from a decree, what steps is he to take to enable him to do so without the assent of his co-defendant?--and let it be borne in mind that even in the strictest days of the common law, he had that right. It is said he must have a summons and severance. But how, and from what authority? Not from the inferior court, for apart from the fact that it is, of course, adverse [**33]  to him, the summons and severance known to the common law tribunals must have issued from the appellate court, since it was a summons to the party to come into the appellate tribunal, and either assign errors or sever. But if the motion to dismiss in this case prevails, it must be upon the ground that the case has never properly reached the appellate court, otherwise a summons and severance might now take place. Thus, under a system devised to relieve appeals from difficulties growing out of matters of form, we would have parties aggrieved denied redress, on account of a mere want of form, more completely and effectually than by the older system. The defendant appealing in this case could not have a summons and severance in the court below, for such a process is unknown to either the courts of law or equity, either in England or in this State, and he is to be told that he cannot procure it in this court, since he is met here by the objection that until the appeal is taken by both parties, this court can have no jurisdiction over the case, and the appeal must be dismissed. To enable one defendant in this State to appeal without or against the consent of a co-defendant, some new process [**34]  or writ must be invented, the form and nature of which it would be difficult to anticipate; and yet, even at law in England, as well as elsewhere, one defendant is entitled to an opportunity of being heard in the appellate court, against the wishes of a co-defendant. It is respectfully suggested, that should the motion to dismiss this appeal be sustained, 

 [*543]  some such form of redress as is supposed to exist, should be indicated. But it is further respectfully suggested, that the legislation in Maryland is conclusive upon the right of one party to appeal, at least so far as equity cases are concerned. The Act of 1721, ch. 14, sec. 4, provided, "that it shall and may be lawful for any person or persons that shall conceive themselves aggrieved by any decree of the chancery court, to have an appeal," &c. It is true that the appeal then was to the governor and council; but although the appellate tribunal has been since changed, the right of appeal does not appear to have been intended to be abridged. Now, language could not be clearer or stronger. Any person has the right to appeal who conceives himself aggrieved. What does this mean but to say that you must hear any party [**35]  who conceives himself aggrieved; and having heard, you are to give him redress if he is aggrieved improperly, as he complains. Certainly it cannot be construed to mean that you are to dismiss him without a hearing, because some other person who may also possibly have been aggrieved, does not join in the application. Similar language is repeated in the Act of 1814, ch. 94. Indeed, the language used on this subject by our Acts of Assembly, is almost identical with that quoted from Daniel's Ch. Practice, concerning the English doctrine, that any party aggrieved may of right appeal, except that Daniel confines it to parties, whereas our Acts refer to persons, a more general term; and, in fact, persons not technically parties to the suit, such as, for instance, purchasers under a decree to sell, have been allowed the right of appeal, without the concurrence of the real parties to the cause.
There remains to be considered the practice in this State. It does not appear that the precise point now under consideration has been presented to our Court of Appeals. But it does appear from many reported cases, which were strongly contested, that the right to appeal under such [**36]  circumstances, has been repeatedly recognized and sustained, without objection. Among other cases, those of Thompson vs. McKim, before quoted, and Strike vs. McDonald, 2 H. & G. 191, deserve especial attention. In both of these cases, the question 

 [*544]  was as to the right of appeal; in both cases one of several defendants alone appealed; and the length of the reported arguments, as well as the distinguished character of the counsel engaged, show that every point deemed worthy of consideration was made; yet the objection now insisted on, that one defendant alone could not appeal without summons and severance, was not even made. In Thompson vs. McKim, the appeal of one defendant alone was sustained; and in the other case, that of Strike vs. McDonald, the appeal was refused on the express ground that Strike, one of the defendants, had not appealed from a previous decree in the cause. And this last case was, in its facts, similar to the one now before the court; it was an attempt by creditors to set aside a fraudulent conveyance made to Strike; the grantor was a party defendant, but took no part in the appeal, and no one seemed to consider it [**37]  at all necessary that he should do so. Many other cases might be cited in which appeals, both at law and in equity, have been sustained at the instance of one of several parties. Stevenson vs. Schriver, 9 G. & J. 324. Parker vs. Gwynn, 4 Md. 423. Moore vs. White, 4 H. & J. 548. Ellicott vs. Ellicott, 6 G. & J. 35. Maccubbin vs. Cromwell, 2 H. & G. 443. Barnes vs. Dodge, 7 Gill 109. Alexander vs. Worthington, 5 Md. 471. Some of these cases, it is true, were decisions upon special Acts of Assembly; but the language of the Acts thus construed is not more clear and explicit than those allowing appeals in equity cases generally. In the two cases last cited, the objection taken was not that one defendant could not appeal alone, for that seemed to be conceded; it was only argued that one defendant could not appeal from an injunction until the other defendants had answered; and that objection was overruled.
Benj. C. Barroll, for the motion:
I feel that I might safely rest the matter in issue upon the clear and learned opinion of this court, on file, dismissing [**38]  the appeal in this case. But a brief argument in reply, may reasonably be expected of me, after the elaborate arguments filed by the two counsel on behalf of Lovejoy.

 [*545]  1. A great deal of labor and research has been expended to establish what is not and never has been denied, to wit: that from a decree in chancery, any party whose rights are affected by the decree, has the right of appeal, provided he be a party to the cause. This disposes of a very large portion of the arguments filed in favor of sustaining this appeal. But as it has nothing whatever to do with the question now to be decided, I pass it by without comment.
2. The attempt to foist into the argument of this motion the merits or demerits of the case, as made out on the evidence, is an abuse of the privilege accorded by this honorable court, to re-argue the motion to dismiss the appeal, and not to be followed.
3. Nor do I think it necessary to examine the very learned disquisition in relation to the origin of writs of error and appeals in England or in this country; these matters have little, if anything, to do with the question before the court.
4. The sole question now before the court for re-argument [**39]  is, whether this honorable court have decided erroneously in laying down the principle, that one defendant cannot, without summons and severance, appeal from a decree in chancery against several defendants jointly, whose interests are united and affected by the decree?
The decree in this case was based upon the joint and equal fraud of the two defendants, Heath and Lovejoy; if either had been innocent, the decree could not have been obtained. The legal effect of the decree was to annul a fraudulent sale and purchase made between the two defendants; as a consequence, the court adjudged the chattels in the bill of sale to be the property of Heath, and liable to the execution of Irelan, and the legal liability of Heath to Lovejoy, to refund the $ 750 mentioned in the fraudulent bill of sale. Here, then, we see the most intimate union of interests of both defendants under this decree. Furthermore, it is a joint decree against both, as to the costs to be recovered by complainant, Irelan. This disposes of a large portion of the argument on the other side, where the attempt is to show that the interests 

 [*546]  were several and not joint, and, in fact, that Heath had no interest [**40]  at all. The counsel arguing this motion forget that the whole machinery in relation to the bill of sale was a sham, a deceit, and a fraud, and that not a dollar passed between the parties. The court sees, upon the pleadings, that the interest of both these defendants is covered by the decree of the court, and that the decree, on its face, professes to affect them both jointly and equally. And, on the motion now under consideration, the decree stands in full force, with the rights of the parties under it adjudicated. Their joint interests in the bill of sale were the subject of that adjudication, and if the decree was erroneous, they were jointly aggrieved. To set aside and declare null and void a sale from one to another, necessarily affects both parties; it is true, in the present case, that Lovejoy may be the greater sufferer of the two, in being thus foiled of reaping the fruit of the act fraudulently perpetrated. When the counsel prepared Heath's answer, he evidently thought that Heath had an interest in sustaining the bill of sale. The truth is, both Heath and Lovejoy had an interest in defeating the bill filed in this case beyond the mere value of the chattels [**41]  conveyed, by reason of their joint relation to the school called the "Newton University." Heath's struggle in this case led him and his counsel to take an appeal from the mere interlocutory order authorizing the examination of Heath as a witness.
5. The counsel says, that because Heath was examined as a witness, a decree against him became impossible, and Lovejoy being the only person on record against whom a decree could be passed, he became entitled, even if not so before, under the common law rule, to prosecute a writ of error alone. Whether a decree against Heath became impossible or not, from the cause assigned, it is, nevertheless, an undoubted fact, that a decree against Heath was passed by the court!--and still stands in full force--consequently, the basis alleged as the right of Lovejoy to prosecute a writ of error alone, fails.
6. The rule requiring all parties in interest, under a judgment or decree, to unite in the appeal, is not a wanton and 

 [*547]  arbitrary rule, but one founded on good common sense and right reason. It does not prevent one from getting his individual appeal, by the simple mode of summons and severance. But so long as the [**42]  interests are united, it prohibits the anomaly of one party appealing from a judgment, which binds and affects several parties. If the principle were otherwise, the consequence might be, that in a decree against five defendants, there might be five distinct and separate appeals. The proposition is monstrous. In 4 Md. the point was only not decided by the Court of Appeals, because it was conceded! The point "was avoided by an amendment," only because it was fatal. The counsel says, the case in 7 Pet. 399, Owings vs. Kincannon, depended upon the construction of an Act of Congress. Not so. An Act of Congress, 1789, allowed cases to be removed to the Supreme Court by writ of error. The Act of 1803, gave the right of appeal, and declares "that such appeals shall be subject to the same rules, &c., as are prescribed by law in cases of writs of error," (page 401.) That case was in chancery, like the case here. So in Maryland, the Act of 1713 allowed appeals and writs of error in common law cases; and by the Act of 1721, "appeals from the court of chancery are directed to be prosecuted in the same manner as appeals from the courts of common law." See  [**43]  Alex. Ch. Prac., 187. There was no question of construction involved in the decision in 7 Peters; the court merely referred to the Acts of Congress, which placed writs of error and appeals on the same footing; in Maryland they are placed on precisely the same footing. The case in 7 Peters was as much a proceeding in rem. as the case at bar. And although Judge Marshall says, that "we have found no precedent," &c., he evidently intends no precedent in the Supreme Court, in a chancery case; yet he declares, that upon principle, there is no difference between a case at common law and a case in chancery, and he cites 11 Wheaton 144. Tidd's Practice, cited in argument by the counsel, is directly adverse to his side of this question. The cases he cites from 1 Levinz 210, and Hobart, 70, are not in point; there the judgments were several and not joint--a judgment 

 [*548]  by default as to one defendant, and a judgment on verdict as to another defendant in the same cause, are two judgments, and have no connection, the one with the other.
There is great effort made to prove that the interest of Heath and Lovejoy,  [**44]  under this decree, was not what the counsel calls "a unity of interest," and in another place uses as an equivalent, the term "a common interest." Now the true mode of testing this question is very simple; it seems to me it is this:--Does the decree, vacating the bill of sale, operate upon and affect both parties? Could a decree, vacating this bill of sale, have been passed so as to affect one party and not the other? Certainly not! Suppose Lovejoy could succeed in reversing this decree, what will be the consequence? The decree annulling the bill of sale as fraudulent stands in full force, so far as the grantor (Heath) is concerned. How can it stand annulled and fraudulent as to the one and not as to the other? It must, in law, be good and valid, or null and void.
The counsel thinks that the application of Heath for the benefit of the insolvent laws, severed the interests of these parties. The question is, upon the right to appeal from the decree in this case. And how Heath's application for the benefit of the insolvent laws, can affect that question, I am at a loss to conceive. It did not make the bill of sale less fraudulent and void. It did not remove the grasp of Irelan's [**45]  execution upon the property. It did not injure Lovejoy, as Heath owed him nothing. The only conceivable effect was, that when the bill of sale should be declared null and void, the trustee of Heath would be entitled to take possession of and sell the property, if he could find it! The counsel asserts, and assumes as a matter not to be questioned, that the judge below would not have passed a decree against Heath, if he had any real interest in the subject matter. I reply, it was because Heath had a real (legal) interest in the subject matter, that the judge was compelled to pass a decree against him. Again, the judge was compelled to pass a decree against Heath, or dismiss the bill! as he could not pass a decree against one and not the other, or rather to affect one and not 

 [*549]  the other. One might be more injured by the decree than the other, but the fraud which rendered the bill of sale a nullity, being the joint act of both, rendered a decree affecting both indispensable, and punative as to the costs.
The counsel thinks that Lovejoy is deprived of all redress, if this motion prevails. Redress for what? The record shows that a court of competent jurisdiction [**46]  has decided and declared him guilty of perpetrating a fraud upon the complainant in this case, and for five years he has successfully prevented this complainant from receiving one dollar of his debt. And one of his chief complaints seems to be, that his partner in the fraud did not stick by him to the end.
In 4 Md. Judge Mason, delivering the opinion of this court, decided virtually the question involved in this motion. In 5 Md. 477, the court again decided it, but held that it did not apply to that case, because the Act of 1835, ch. 380, in relation to injunctions, varied the rule. The same principle is decided by the Supreme Court, in 16 Peters 21; and the principle is decided and clearly stated in the case cited on the original argument, in 3 How., (Miss. Rep.,) 43, and in all the other cases then cited.
LE GRAND, C. J., delivered the opinion of this court.
Per Curiam.--The court have carefully considered the arguments addressed to them in this case, on the re-hearing of it, and see no reason to disturb their order, as passed on the original argument, to which they adhere. Costs of rehearing to follow original decree. [**47]  
Decided Oct. 29th, 1861.  

77 of 196 DOCUMENTS 

SUSAN E. HOWELL and OTHO H. WILLIAMS, exc'rs of JOHN B. HOWELL, vs. BALTIMORE EQUITABLE SOCIETY, for insuring houses from losses by Fire.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 377; 1860 Md. LEXIS 74 

July 13, 1860, Decided 

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

Covenant, brought on the 30th of November 1854, by the appellants' testator against the appellee, upon an insurance policy. The pleadings and facts of the case are fully stated in the opinion of this court. A single exception was taken by the plaintiffs to the ruling of the court below, (LEE, J.,) which is also fully stated in the opinion of this court. The verdict and judgment were in favor of the defendant and the plaintiffs appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

It may be true, as a general rule, that when a loss has happened from the perils covered by a fire policy, and the insurer claims exemption under the clause of the policy against unauthorized alterations, increasing the risk, and providing that any loss, happening by reason of such alterations, shall not be paid, the onus is on him to prove the facts which entitle him to the exemption.

But where there is a total destruction of the building by fire, and the claim is for the whole loss, and it is shown to have resulted either altogether, or to an unknown extent, from an unauthorized alteration which increased the risk, the loss must fall on the assured, unless he furnishes proof of some loss occasioned by other causes than such alteration.

Under the clause of a fire policy making it void if any unauthorized hazardous trade, increasing the risk, is carried on in the building, the fact that such trade was carried on avoids the policy, no matter what was the cause or origin of the fire, or that such trade was carried on by the tenant of the assured without his knowledge or consent.  

COUNSEL:
Wm. Schley, for the appellants:

1st. A loss by fire, occasioned by the act of an incendiary, is within the risk assumed by the policy in this case; and there was evidence in the cause, from which the jury might rationally have found, that the fire thus originated. 1 Sumner, 444, Catlin vs. Springfield Fire Ins. Co. Angell on Fire & Life Ins. Co., sec. 126.

2nd. A loss by fire, occasioned by the negligence or misconduct of tenants or other persons, in the absence of any connivance, co-operation, consent or knowledge on the part of the assured, is a risk within the policy. The assured does not warrant that his tenant will do no wrong; and even if the assured should [**2]  not be vigilant in looking after his property during the term of the tenancy, and should even be considered as negligent in fact, yet he is under no legal obligation of duty to keep watch over his tenants. If he has an insurable interest in the property, acts throughout in good faith, and does not directly or indirectly, wilfully or knowingly, do any thing to vary or increase the risk, or knowingly permit any thing to be done, to vary or increase the risk, he does not lose the benefit of the insurance. If the law were otherwise, owners of reversionary interests in houses would have a very precarious security in a policy of insurance in the ordinary form of such instruments. 11 Pet., 220, Waters vs. Merchants Louisville Ins. Co. 1 Selden, 479, Gates vs. Madison Co. Mutual Ins. Co.

3rd. The true construction of the clause as to material alteration is this: good faith, the utmost good faith, is required on the part of the assured; and hence information is to be given, in writing, of intended alterations, that is, of alterations about to be made. But if the assured does not contemplate alterations--if he does not know that his tenant intends to make any--if the tenant commits waste [**3]  in making alterations without the knowledge of the assured--what want of good faith is there on the part of the assured? What default in failing to give information in the absence of knowledge on his part of the unauthorized alteration? The true doctrine is this: if the assured incurs loss by fire, as the proximate cause of the loss, although the fire may have happened by reason of unauthorized alterations made by another, yet if there was no connection, direct or indirect, of the assured with the alterations, and no opportunity in fact to prevent them, he is entitled to indemnity. Demising to another a dwelling house is a lawful use of property, and does not make the lessee the property agent of the landlord; much less confer on him authority to commit waste by pulling down the tenement in whole or in part. And the representation, if true, at the time that the building was a dwelling house, is not a warranty that it shall not thereafter be used except as a dwelling house. 1 Selden, 479, Gates vs. Mad. Co. Ins. Co. 6 Adol. & Ellis, 75, Shaw vs. Robberds, in 33 Eng. C. L. Rep. 3 Comstock, 123, O'Neill vs. The Buffalo Fire Ins. Co. Angell on Fire Ins., secs. 147, 155, 168. 6 Man. & Gran.  [**4]  , 1, Pim vs. Reid, in 46 Eng. C. L. Rep. 1 H. & G., 295, Jolly vs. Baltimore Eq. Soc. 20 Conn., 139, Billings vs. Tolland Co. Mutual Ins. Co. 2 Md. Rep., 125, Allen vs. Harford Co. Mutual Ins. Co.

4th. The defendant's third prayer, as granted, excludes from the hypothesis all connection between the happening of the fire and the alleged alterations. The condition in the policy is-- "in default thereof, any loss happening to the insured premises by reason of making said repairs or alterations, shall not be paid or demanded under the said policy." If the fire was occasioned by the torch of an incendiary, how can it be said that the fire happened by reason of making said repairs or alterations? The alterations proved was such as did not increase the liability to fire, but only tended to increase the extent of the conflagration, and to augment the amount of the loss, and although to the extent of such increase of the loss the company may be exempt, yet the plaintiffs would have a right to recover for so much of the loss as did not result from the alterations, and the onus was upon the company claiming this exemption to show, to what extent the loss and damage were occasioned by the [**5]  alterations made in the building. In this respect the prayer is unwarranted by the condition in the policy, and is a departure from the defence taken in pleading by the defendant. Conditions in discharge of the liability of the insurer are to be fairly construed, not rigidly. And where issue is joined upon a precise and definite plea, the substance of the plea is necessarily involved in the issue. 3 Excheq., 543, Barrett vs. Jermy. 1 Chitty's Pl., 653, 654.

H. C. Dallam and Robt. J. Brent, for the appellee:

1st. The only question for the jury was, whether by either of the modes referred to in the defendant's first and second prayers, a material increase of risk was occasioned to the property insured. The whole inquiry, as to whether or not the alterations, proved to have been made in the insured premises, or whether or not the using of the building, which had been insured as a dwelling house, for the purpose of manufacturing organs, or both, increased the risk, was left for the jury, and this is the rule of law laid down by the authorities. Parsons Merc. Law, 504, and cases cited in notes. 3 Kent, 374. 2 Greenlf. on Ev., sec. 408. 2 Md. Rep., 125, Allen vs. Mutual Fire Ins.  [**6]  Co. 4 Mass., 330, Stetson vs. Mass. Fire Ins. Co. 1 H. & G., 295, Jolly vs. Balto. Equitable Society, 10 Pick., 535, Curry vs. Commonwealth Ins. Co. 21 Pick., 162, Merriam vs. Middlesex Ins. Co. Smith's Merc. Law, 412, and notes. 5 Hill, 10, Grant vs. Howard Ins. Co. 7 Wend., 72, Jefferson Ins. Co. vs. Cotheal. 1 Strob., 281, Boatwright vs. Etna Ins. Co. 8 Cush., 82, Jones Manuf. Co. vs. Man. Ins. Co. There was ample testimony before the jury, at the trial, that the risk had been materially increased, both by the alterations, and by the hazardous trade or business carried on in the building. It was insured as a dwelling house, and was then, without the permission of the insurance company first had and obtained, as required by the policy, which was the contract between the parties, converted into an organ factory. The rule of law is clear, that if a building be described as of one class instead of another, when a larger premium would have been required for that other, the policy becomes completely void. Smith's Merc. Law, 410, and cases there cited.

2nd. If, therefore, from all the evidence, the jury found the facts as stated in the defendant's first and second prayers, which were [**7]  conceded to be law by the plaintiffs' counsel, it is then submitted, that the particular manner in which the building was set on fire is immaterial, and cannot effect the defence set up in this case. If the conditions of the policy were violated, and if thereby, in the opinion of the jury, the risk to the insured premises was materially increased, and which risk the jury, by their verdict, adjudged was increased, then the plaintiffs' testator lost all right to recover under this policy. As to the rule of law in construing the conditions in policies, see 5 Md. Rep., 165, Associated Firemen's Ins. Co. vs. Assum; 16 Pet., 510, Carpenter vs. Providence Washington Ins. Co.; Smith's Merc. Law, 401. Conditions inserted in the policy, are parcel of the contract, and must be strictly and literally observed. Smith's Merc. Law, 415. 6 Cowen, 677, Fowler vs. Etna Ins. Co. 5 Hill, 10, Grant vs. Howard Ins. Co. 6 Term Rep., 710, Worsley vs. Wood. 26 Eng. Law & Eq. Rep., 238, Sillem vs. Thornton. And that the premises were destroyed by an incendiary would make no difference, as to the rights of the parties under the policy. If the alteration of the premises be of a permanent character, and cause [**8]  a material increase of the risk, then it is a substantial breach of the contract, and the insurers are discharged; and they are discharged equally, whether the fire be caused by the alteration, or by some wholly independent matter. Parsons Merc. Law, 506. 2 Greenlf. on Ev., sec. 408. 21 Pick., 162. 20 Eng. Law & Eq. Rep., 364, Glen vs. Lewis.

3rd. And lastly, as contemplated by the latter clause of the defendant's third prayer, if the jury found the facts set forth in the first and second prayers, it is quite immaterial in this case to the defence set up, whether the tenant, Pomplitz, made the alterations, or changed the use of the building from a dwelling to an organ factory, without the knowledge of the assured or not. 6 Wend., 493, Duncan vs. Sun Fire Ins. Co. 2 Md. Rep., 129, 131. It was the duty of Howell to see to it, that his contract with the insurance company, as contained in the policy, was observed. If he failed to do this, it was his own neglect and default, and for the consequences of his ignorance he must suffer. But, if it be conceded that the plaintiffs could recover for so much of the loss as was caused by the work of an incendiary, the onus was on them to show [**9]  to what extent the loss was so caused, and was wholly independent of the alterations in the building, and, in the absence of such proof, they cannot recover. No such proof was offered, and indeed none could be offered, for the whole building was destroyed, and there was a total loss of the property insured.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*382]  BARTOL, J., delivered the opinion of this court:
This suit was instituted on a policy of insurance, issued by the appellee, to John B. Howell, (the appellants' testator,) on a dwelling house, situated on Albermarle street, in the city of Baltimore.
The premises insured were destroyed by fire in May 1854, and to recover the loss thereby incurred, this action was brought. The policy contains the following stipulations:
"When any material alteration or repairs are about to be made in the premises insured, or any part thereof, during the continuance of this policy, which increase or vary the risks hereby insured, information thereof shall be given in writing to the office, and permission be obtained from the directors of said society to make such alterations or repairs, and [**10]  in default thereof, any loss happening to the said insured premises by reason of making said repairs or alterations shall not be paid, or demanded, under this policy."

 [*383]  "If any hazardous trade, business or occupation, shall be carried on upon the premises insured, after the issuing of this policy, which shall increase the risk hereby insured, information shall, in like manner, be given to the said society, and a permission be obtained to carry on the said business, trade or occupation, so increasing the risk as aforesaid, and in default thereof, this policy shall be void, and no loss or injury accruing thereafter to the premises insured, shall be payable or demanded in virtue thereof."
By agreement all errors of pleading were waived, and the defendant stated and relied on two grounds of defence:
"1st. That subsequently to the insurance, and during the continuance of the policy, material alterations in and about the premises insured were made, which increased and varied the risks thereby insured, in this, to wit, that the joists were cut out, and the ceiling or flooring between the first and second stories of the main building, were in part removed and taken out, without [**11]  any information in writing being given to the defendant, and without any permission therefor having been obtained from the directors of said society, and that the loss which happened to said premises, and which is now sued for, did happen to the same by reason of making said alterations."
"2nd. That a hazardous trade, business or occupation was carried on upon the premises insured, after the issuing of said policy, in this, viz., that the same were used as an organ factory, and with that view, divers large quantities of dry wood and combustible materials were used and left in and about said building, which did increase the risk thereby insured, without any information thereof being given to the defendant, and without any permission being obtained to carry on the trade, business or occupation, so increasing the risk as aforesaid, and that the loss now sued for did thereafter happen to said premises, and so the said defendant is not liable."
In the course of the trial below, evidence was given of the facts set out in the grounds of defence, and that the change in the interior construction of the building materially increased the risk; and also that organ building is a "hazardous 

 [*384]   [**12]  trade, business and occupation," requiring the use of materials of a highly combustible character, which materially increased the risk to the premises insured. The defendant then asked two instructions to the jury, both of which were granted by the consent and acquiescence of the plaintiffs, and the plaintiffs on their part offered eight prayers, all of which were likewise granted by consent. The defendant then offered a third prayer, which was granted by the court, and to the granting thereof the plaintiffs excepted. That is the only exception brought before us on this appeal, which presents the single question of the propriety of the ruling by the Superior court upon the defendant's third prayer.
The first and second prayers of the defendant, which are referred to and incorporated in the third prayer, are as follows:
"1. If the jury shall find, from the evidence, that after the execution of the policy in evidence, and before the fire, as stated in the evidence, the plaintiff, or his tenant, caused certain material alterations to be made on the property insured; and shall further find, that 'by reason of making said alterations,' a material increase of risk was occasioned to the [**13]  property insured, and that the said loss by fire was occasioned by reason of said alterations, then the plaintiff is not entitled to recover in this action, because he has failed to show, in evidence, the notice and permission required by the terms of the condition of the policy."
"2. If the jury shall find, from the evidence, that after the execution of the policy, in evidence, and before the fire, the plaintiff, or his tenant, carried on in said premises 'any hazardous trade, business or occupation;' and shall further find that the risk insured by said policy was thereby materially increased, then the plaintiff is not entitled to recover in this action, he not having shown that the notice required by the terms of said policy was given to the defendant, nor the permission, provided for by the terms of the policy, had been first obtained from the company."
The third prayer was as follows:
"If the jury shall find, from the evidence, the facts in 

 [*385]  either of the defendant's 1st or 2nd prayers, then the jury must find a verdict for the defendant, even although they shall believe, from the evidence in the cause, that the fire which destroyed said premises, mentioned in said [**14]  policy of insurance, on the night of the 27th of May 1854, was the work of an incendiary, and even although they shall further believe, from the evidence in the cause, that said alterations were made, or that said hazardous trade was carried on in said premises by the plaintiffs' tenant, Pomplitz, without the knowledge or consent of the plaintiffs' testator, that said insured building should be so used."
The first and second prayers presented two distinct grounds of defence, which, in examining the third prayer, where they are blended together, it is necessary to consider separately.
Under the first prayer, in order to exempt the company from liability, it was necessary for the jury to find, "that the loss was occasioned by reason of the alteration in the building;" and by the third prayer the jury was instructed, that if they so found, the defendant was entitled to a verdict, although they should "believe, from the evidence, that the fire which destroyed the premises was the work of an incendiary." This instruction, it has been contended, was erroneous, because, it is said, if the fire was caused by an incendiary, it is impossible the loss which resulted could have been occasioned [**15]  by the alteration in the building; that the alteration proved was such as did not increase the liability to fire, but only tended to increase the extent of the conflagration, and to augment the amount of the loss; and although to the extent of such increase of the loss, the defendant would be exempt, yet the plaintiffs would have a right to recover for so much of the loss as did not result from the alterations. And it was further contended, by the appellants, that the onus was upon the defendant, claiming the exemption, to show to what extent the loss and damage were occasioned by the alteration made in the building.
On the other hand, the appellees have contended that the onus was upon the plaintiffs to show to what extent the loss was caused by the work of an incendiary, and was wholly 

 [*386]  independent of the alterations in the building, and that in the absence of any such proof they are not entitled to recover. This is a very nice and ingenious point, the decision of which is not altogether free from difficulty. But, in the opinion of a majority of this court, the appellants' view ought not to be sustained. It may be true, as a general rule, that where a loss has [**16]  happened from the perils covered by a fire policy, and the insurer claims exemption, under such a clause as that which in this case constitutes the first ground of defence, the obligation rests upon the insurer, to prove the facts which entitle him to the exemption. But the question now presented, by the argument, is one of partition or division of the loss. While the case presented by the record is one of a total or entire destruction of the building by fire, and a claim for the whole loss, for a portion of which it is conceded, in the argument on this point, the defendant is not liable, and without any proof, or any possibility of proof, to show to what extent it resulted from causes covered by the policy, or to what extent it was occasioned by the acts of the plaintiffs' tenant, in violation of the contract.
Under such a state of facts, it would be unjust and contrary to the spirit and intention of the contract, to impose upon the insurance company the burden of proving the extent of its exemption, which has been rendered impossible by the wrongful act of the other party, or what is the same thing, of his tenant in possession of the property.
The loss being entire and indivisible,  [**17]  and it being shown to have resulted, either altogether or to an unknown extent, from an unauthorized alteration in the building, which increased the risk, the loss must fall on the insured, unless he furnishes proof of some loss which was occasioned by other causes than the alteration in the building.
The facts stated in the defendant's second prayer, if found by the jury, exempted the company from all liability upon the policy; because, by the terms of the contract, such facts rendered the policy void; and this result would not depend, in any manner, upon the cause or origin of the fire; nor would it be varied, by reason of the hazardous 

 [*387]  trade being carried on by the plaintiffs' tenant, without his knowledge or consent. Parsons Merc. Law, 505. Duncan vs. Sun Ins. Co., 6 Wend. 493, 494.
We find no error in the granting of the defendant's third prayer; no objection is made to it on account of its form, and the principle it asserts would seem to follow, as an inevitable consequence, from the first and second prayers, which were conceded by the plaintiffs. In the opinion of a majority of this court, the ruling below, upon the defendant's third prayer, [**18]  shall be affirmed.
Judgment affirmed. 

78 of 196 DOCUMENTS 

WILLIAM ORTWINE vs. THE MAYOR & CITY COUNCIL OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 387; 1860 Md. LEXIS 75 

July 13, 1860, Decided 

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

This action was brought on the 21st of April 1857, by the appellant against the appellees, to recover damages for injury done to the plaintiff's property.

The first count of the declaration alleges, that the defendants have damaged and injured the plaintiff to the value of $ 495, by causing a large body of water to flow over his land, situated on Walsh street, by the wrongful and illegal acts of the said city, and its agents, in grading Pennsylvania Avenue, a public highway in said city, and in not providing proper and sufficient sewers to carry off the natural flow of water down said avenue.

The second count alleges, that the plaintiff is owner, and has been for six years past, of a valuable lot of ground in said city; that he was the owner thereof before, and at the time, the western portion of Pennsylvania Avenue was graded and paved, by order of the city authorities; that at the time of such grading, the water, which naturally flowed down the avenue, was carried off without injury to his property, but that, by an illegal and improper grade of such avenue, a much larger body of water is forced into the avenue, and flows over and [**2]  upon his land, situate contiguous thereto, to his great injury and damage, to the value, of $ 485.

Plea, that the defendants did not commit the wrong alleged in the declaration against them.

1st Exception. The facts, proved in the case, show, substantially, that the plaintiff was the owner of a lot fronting on Walsh street, which he had leased in 1851, with the privilege of purchase, and which was conveyed to him in fee, in 1856. Walsh street, and a lot owned by one Seltzer, intervene between the plaintiff's lot and Pennsylvania Avenue on the north, and Hoffman street intersects this avenue at right angles a short distance to the west of this lot. By the grade of the avenue, as established by the city authorities, in April 1847, and as appears from the grade book, the grade where the avenue is intersected by Hoffman street, requires a descent of eight inches to the centre of that street, and a rise from the centre on the other side, thus making that street a channel to receive and carry off the water coming down the avenue from the west. But the avenue as actually constructed and graded, in 1847, by the city authorities, not pursuing the grade as established, raised the centre [**3]  of Hoffman street, instead of lowering it, and thus causes the large flow of water from the west to rush across Hoffman street, and in times of heavy rains, to rise two or three feet in depth on the avenue, east of Hoffman street, where it forces an outlet through a sewer, known as Seltzer's, and thence through another sewer, made by the city, under Walsh street, over and through the plaintiff's lot.

Before the avenue was graded, a large portion of the water falling thereon passed off before reaching Hoffman street, through an old sewer, west of Dolphin street, which the city filled up when the avenue was graded and paved. Both this and Seltzer's sewer were originally constructed by the turnpike company, and were the natural channels of drainage. If Seltzer's sewer should now be stopped up, the consequence would be to flood all the surrounding property.

Walsh street was not graded or paved when the plaintiff bought his lot. Its grade was established in 1854, and his lot was eight or ten feet below such grade, and he had to fill his lot up, leaving a gully five or six feet wide, for the water from Seltzer's sewer to pass through in order to prevent his whole lot from being [**4]  submerged.

When the avenue was paved, the bed of Hoffman street was raised seven inches at the curb, and the grade of the avenue was not fixed to correspond with that of Hoffman street, and this discrepancy is one cause of the difficulty in relation to the flow of the water east of Hoffman street.

One of the witnesses says he considers the damage to the lot of the plaintiff, by the increased flow of water, since the grading of the avenue, to be about $ 500. Another says, he considers the increased flow of water across the plaintiff's lot, and the gully, to be a permanent injury, to the extent at least of $ 500.

The plaintiff then asked an instruction to the jury:

That if they find, from the evidence, that the plaintiff leased the lot in question, on Walsh street, in 1851, from Mr. Smith, and obtained from him the fee-simple in 1856, and shall further find the grading and paving of Pennsylvania Avenue, Hoffman street, and Walsh street, as shown by the evidence, and the grading and paving of the latter street in 1854, and shall further find, from the evidence, that prior to the grading of said avenue, there was a sewer west of Dolphin street which carried off a large [**5]  portion of the water flowing down the avenue, and prevented such water, or a large portion thereof, from passing Hoffman street, and finding its vent through the sewer at Seltzer's, as spoken of in the evidence, (if the jury shall find the facts so to be,) and shall further find that, in grading and paving Walsh street, the defendant, by its agents, caused a sewer to be constructed under Walsh street, and that by reason of said sewer, the water from the avenue has been concentrated and caused to pass through the same, in and upon the land of the plaintiff, and shall further find that, since the grading of said avenue, a much larger flow of water has thereby been caused to flow down the same, and over the plaintiff's land, and shall further find that the grade of Hoffman street was altered in the paving thereof, and shall further find that there was a gutter contemplated, and directed to be made, down the centre of Hoffman street, under the grade affixed by the city commissioner in 1847, and that no such gutter was made in the centre of Hoffman street, and that, in consequence thereof, a large amount of water rushes over Hoffman street, down the avenue, easterly, and through the sewer [**6]  at Seltzer's aforesaid, and thence through the sewer under Walsh street, and over the land of the plaintiff, and that, if said gutter had been made down Hoffman street, the quantity of water flowing over the plaintiff's land would thereby have been greatly diminished, and if the jury shall find that the plaintiff has received injury and damage, by reason of the increased flow of water (if the jury shall so find the facts) over his land, then the plaintiff is entitled to recover in this case, under the issue as made up by the pleadings in this cause.

The court (MARSHALL, J.) rejected this prayer, and to this ruling the plaintiff excepted.

2nd Exception. The defendants then asked for the following instructions:

1st. That the city authorities, under the charter of the city, are the exclusive judges of the time, place and manner in which the streets, within the limits of the city, shall be opened, graded and paved, and made highways, and that their action in these respects cannot be reviewed in this court, either by judge or jury, but are binding upon both the one and the other.

2nd. That even if the jury should find from the evidence, that the lot of the plaintiff [**7]  was overflowed by water, and damaged, in consequence of the manner in which Pennsylvania Avenue and Hoffman streets were graded and paved, and that said streets were so graded and paved, in substantial compliance with the proceedings before the city commissioners in 1847, as given in evidence, and without material variation therefrom, then the plaintiff is not entitled to recover, and that it is not rightfully within the power of this court to inquire, whether the injury to the plaintiff's property might not have been avoided, by a better and more judicious plan of grading and paving said streets than was adopted by said commissioners.

3rd. That if the jury find the facts stated in the foregoing prayers, but also find, that the grade of said streets was altered in the paving thereof, as stated in the evidence, with the approval, and by the direction, of the city commissioner, whereby the overflow of water on the plaintiff's lot was increased from what it otherwise would have been, and if the jury find that, in the year 1848, when they were completed, if the jury find from the evidence that in that year the grading and paving were completed, and that the said streets were then [**8]  accepted by the competent authorities of the city, and have ever since remained in that condition, then the plaintiff is not entitled to recover in this case against the defendants.

4th. That the acceptance, by the city commissioner, of said streets, if the jury find it from the evidence, as duly graded and paved, is conclusive evidence that it was so graded and paved.

5th. That if the jury find, from the evidence, that the grading and paving of said streets were completed in the year 1848; that the plaintiff leased his lot in the year 1851, and afterwards received a conveyance of it in fee, in the year 1856; and if the jury further believe that, and in consequence of injury to said property by its being, as stated in the evidence, overflowed by water, although they may find that as a consequence of said grading and paving, yet that the cause of action, if any, which arose to said lessor and grantor, previous to the year 1851, on account of injury to the said lot, in manner aforesaid, did not pass, by virtue of either of the aforesaid conveyances, to the said plaintiff, and he is not entitled to recover.

The first prayer was admitted by the plaintiff, and the court rejected [**9]  the second, third and fourth, and granted the fifth, and to the granting thereof the plaintiff excepted, and, the verdict and judgment being against him, appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Under a declaration going for damages to the plaintiff's property, by the wrongful and improper grading of a certain avenue, the plaintiff cannot claim compensation for any damage or loss by reason of the grading and paving of other streets.

A permanent injury to a lot, by a gully made by water flowing from a street, which gully was made before the plaintiff acquired his title to the lot, and which now carries off the water, is a cause of action accrued to the former owner, and has not devolved on the plaintiff.  

COUNSEL:
Benj. C. Barroll, for the appellant:

1st. There was error in rejecting the appellant's prayer. The proof shows that the appellant was injured, in his property, by the city and its agents, chiefly in consequence of the paving of the avenue in a different manner from the established grade. For this violation of law, and for the injury so done, the city is liable in damages. The city cannot alter or establish the grade of a street, if, in so doing, it causes a larger flow of water over the adjacent property, without being liable in damages for the injury produced. The city is bound to carry off all the water falling upon its streets without injury to its citizens. If a street is so graded and paved by the city, in violation of the grade previously established, and by reason of such violation, a larger body of water is thrown upon the land of a citizen, the city is responsible for the damage. If the city makes the grade of two streets to conflict where they intersect, and injury thereby ensues,  [**10]  the city is responsible. No case can be cited of an injury occurring to a party in consequence of an unlawful act on the part of a corporation, wherein the corporation has not been held liable in damages. The city has authority to grade streets, and when exercised, so long as the grade continues unaltered, the city continues bound by it, and hence it cannot rightfully make conflicting grades, or rather in such case it will be responsible for all injury arising from the conflict. Whenever the city establishes a grade, and its officers in doing the work violate the grade so established, and injury ensues by reason of such violation, the city is responsible. The city has no authority to create a nuisance; on the contrary, they are bound to prevent nuisances and to remove them if they occur without their direct conduct; that is, the city is responsible for all damage arising from a public nuisance either produced or suffered to continue. The city has no authority to build conduits to convey the water falling upon its streets, either into my parlor, shop, or upon my land. But it is bound to construct sewers, keep them in repair, and in such condition as that all the water may be carried [**11]  off without detriment to private property. In support of these positions, see the Acts of 1797, ch. 54, 1782, ch. 17, sec. 8, and 1829, ch. 114, and, also, 8 Md. Rep., 353, Henderson's Case; 9 Md. Rep., 160, Marriott's Case; 7 Pet., 243, Baron & Craig's Case; 21 How., 210, Phil., Wil. & Balt. Railroad Co. vs. Quigley; 9 Iredell, 73, Meares vs. City of Wilmington; 4 Comstock, 196, Radcliff's ex'crs vs. City of Brooklyn; 3 Hill, 614, City of New York vs. Furze; Ibid., 534, Bailey vs. City of New York.

2nd. There was error in granting the appellee's fifth prayer. The injury was a continuing and increasing one. The plaintiff did not claim for injury accruing to his lessor, but for actual injury to himself and his own property. If his lessor chose to submit to the illegal acts of the city, the plaintiff was not bound to do so after he became the proprietor. Any party may sue the city who sustains injury by the unlawful conduct of the city, no matter if the former owner, or owners, of the same land have forborne to sue for a century back.

Archibald Stirling, for the appellee, argued:

1st. That the city authorities are the exclusive judges of the time, place and manner, in [**12]  which the streets of Baltimore should be opened, graded and paved, and made highways.

2nd. That the corporate authorities had power to grade this avenue, and that no action could be brought by the plaintiff for any consequential injury done to his property, resulting from the exercise of this power by the corporate authorities; and that if the plaintiff sustained any damage, in fact, thereby it was what the law regards as damnum absque injuria. 12 Missouri, 414, City of St. Louis vs. Gurno. 18 Penn. State Rep., 187, O'Connor vs. City of Pittsburgh. 26 Barb., 133, Ely vs. City of Rochester.

3rd. That even if an action would lie for the cause aforesaid, yet the injury complained of was the result of acts done long before the appellee became the owner of the property injured; and that he acquired no right to sue for such injury by virtue of the subsequent conveyances to him of the leasehold interest in 1851, and the fee-simple in 1856, in said property; and no right of action passed or would have passed by operation of these conveyances.  

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

OPINIONBY:
TUCK 

OPINION:

 [*394]  TUCK, J., delivered the opinion of this court.  [**13]  
The appellant sued the appellees to recover damages for injury done to his property, "by the wrongful and illegal acts of said city and its agents in so grading Pennsylvania Avenue, a public highway, in said city, and in not providing proper and sufficient sewers to carry off the natural flow of water down said avenue," and, as alleged in the second count in the declaration, he complains "that he was the owner of the lot in question before and at the time that that part of the Pennsylvania Avenue was graded and paved by order of the city authorities; that at the time of such grading the water was carried off without injury to his property, but that by an illegal and improper grade of the avenue, a much larger body of water is forced into the avenue, and flows over and upon his land," for which, also, he claims damages. We have made allusion to the pleadings, because they are brought to our notice by the plaintiff's prayer, which bases his right to recover on the jury finding certain facts in connection with the grading and paving of Hoffman and Walsh streets and the avenue, as the cause of damage to his property, which facts, it is averred, entitle him to recover, "under the issue [**14]  as made up by the pleadings in the cause." The declaration goes for damage by the wrongful and improper grading of 

 [*395]  the avenue, and makes no mention of the other streets named in the prayer. It is plain, therefore, that, conceding his right to recover for the acts of the city's agents in grading the avenue, under these pleadings he could not claim compensation for any loss or damage by reason of the grading and paving of Hoffman and Walsh streets. This prayer was therefore properly refused.
The defendant offered five prayers--the first of which was granted by consent, being the instruction given by Chief Justice Taney, in the case of Hughes vs. The City, in 1855; the second, third and fourth were refused, and the fifth granted, from which last the plaintiff appealed.
The plaintiff's counsel admits that he has not succeeded to any cause of action of his predecessor in the title for damage done to the lot by the alleged improper grading before he became owner thereof, but he says that the action contemplates no such recover, but only claims damages for injuries resulting from the flow of water since his purchase, and he contends that the fifth prayer is erroneous,  [**15]  because it denies his right to recover, for subsequent as well as previous injury. In disposing of this point, therefore, we must see what the suit is for and what is the case made by the evidence.
If, under the pleadings, he could recover for damage by the water overflowing his land since he became owner, we think the case does not show any such. The witnesses who testify on the question, speak of that kind of damage which must have occurred while Smith was owner, causing a permanent injury to the freehold, for which he, if any person, had the right to sue. Were it conceded that a party may complain of a nuisance when he purchases the property affected by it, with a knowledge of its existence, it is not shown here that the water from the avenue affects his lot, as a recurring nuisance. The damage is estimated at $ 500. Do the witnesses mean that every flood causes that amount of damage, or that the property is intrinsically and permanently depreciated that much by the original grading and paving of the avenue? There is a gully through which the 

 [*396]  water passes. If that was made by the water before the plaintiff acquired his title, and now carries it off, and if that is the [**16]  damage referred to by the witnesses, as we think the case shows, it is clear that such cause of action accrued to Smith, and has not devolved on the present owner. There was, therefore, no error in the conclusion of this prayer, that the plaintiff could not recover, it being merely an assertion of the legal proposition that, in respect to the cause of action set forth in the prayer, the plaintiff had failed in making out his case.
As the judgment must be affirmed, for these reasons, we are relieved from the necessity of passing upon the questions submitted for our consideration, as to the power of the corporation in respect to the acts out of which the suit is said to have originated.
Judgment affirmed. 

79 of 196 DOCUMENTS 

WILLIAM T. HALL and THOS. D. LONEY vs. JAS. A. RICHARDSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 396; 1860 Md. LEXIS 76 

July 13, 1860, Decided 

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

Attachment on warrant, issued at the instance of the appellants, on the 24th of February 1857, against Howard & Poor, a firm doing business in Alexandria, Virginia. Under this writ, the sheriff, on the 26th of February 1857, attached "as per schedule," one hundred barrels of flour, as the property of Howard & Poor, the flour being, at the time, in the hands of Ford & Rogers.

Howard & Poor then filed a petition, asking that the attachment might be quashed, so far as this flour was concerned, on the ground that it did not belong to them or either of them, but was the property of Jas. A. Richardson, who had bought it, and paid for it, and was to deliver it to them only when they paid him for it, which they had not done, and that Richardson had never lost his lien or any right of possession and control over the flour. The plaintiffs answered, alleging that they could prove that the flour was the property of Howard & Poor, or one of them, and the court dismissed the petition.

On the 25th of March 1857, the court, on application of the plaintiffs, ordered the sheriff to sell the flour, as a perishable article, "and hold the [**2]  proceeds subject to the ultimate decision of this cause." The flour was accordingly sold by the sheriff, and, on the 12th of October 1857, the plaintiffs applied to the court, by petition, asking that the proceeds in the hands of the sheriff might be paid over to them, upon their giving a bond in the penalty of $ 1200, with two good sureties, approved by the court, to save harmless the defendants, "and all other persons who may be interested in said flour." Upon this petition, the court, on the same day, passed an order, directing the sheriff to pay over the proceeds to the plaintiffs, on their executing a bond to the State, with two sureties, to be approved by the court, in the penalty of $ 1200, conditioned "to save the defendants and all other persons, harmless, in case this suit shall be decided against the said plaintiffs." Such a bond, conditioned as prescribed, was accordingly filed and approved, and the proceeds paid over to the plaintiffs.

On the 10th of December 1857, Richardson filed his claim of property in the flour attached, and also a plea, averring that the plaintiffs ought not to have condemnation of the flour, because it was not the property of the defendants [**3]  in the attachment. The plaintiffs moved the court not to allow this claim to be set, up for the reasons:

1st. That the said Richardson is testing his right to the property in question, by suit brought to the May term, 1857, of this court, and, having elected such remedy, it is now too late to raise the same issue in this cause.

2nd. It is not competent for a claim now to be filed, because the flour has been sold by order of this court, and the proceeds paid over to the plaintiffs, by the court's order, after giving bond to indemnify parties in interest.

3rd. It is too late for Richardson to come into court as a claimant of the flour attached.

The court overruled this motion. The claimant then filed, as a second plea, that Howard & Poor were not indebted to the plaintiffs, as alleged in their short note. On this plea, and that claiming property in Richardson, issues were joined on which the case was tried.

1st Exception. The plaintiffs proved the indebtedness of Howard & Poor to them, to the amount of $ 1042.95, and their partnership, and that of Howard & Poor, and rested. The claimant then proved that the flour attached was purchased by him from C. D. Hinks [**4]  & Co., for $ 600, and paid for by him, out of his own proper moneys, and gave in evidence the bill and receipt of Hinks & Co. therefor, showing that the purchase was made on the 15th of January 1857, and paid for on the 20th of February 1857, the receipt further stating that the flour was "to be delivered at the buyer's option, at any time between the 15th and 28th days of February 1857, payable on delivery, or, if not demanded previous to the 20th of February, the sellers may require payment on that day, or on any day thereafter, but the buyers may not be required to remove the flour previous to the 28th." He further proved, by Roach, that the flour, seized by the sheriff, was received from the claimant by witness, as warehouse-man for Ford & Rogers, the agents for the ship Annapolis, and receipts given therefor to the claimant. These receipts, dated the 23d of February 1857, were offered in evidence, and run thus: "Received from Richardson & Co., on board ship Annapolis," &c. The same witness further proved, that such receipts are ship receipts, and that the bills of lading are made out from them, and that they are given up when the bills of lading are signed.

The plaintiffs [**5]  then proved that the ship "Annapolis," mentioned in the above receipts, was bound for Liverpool, and it was admitted that the flour in question was purchased by the claimant, on account of Howard. The plaintiffs further proved, that the firm of Howard & Poor were located in Alexandria, Va., at the time the indebtedness to the plaintiffs was created, and that Howard still resided there, and then offered in evidence a draft for $ 600, by Richardson & Co., upon Charles Howard, Alexandria, Va., dated Baltimore, February 20th, 1857, payable one day after sight, to the order of Geo. C. Miller, Cash., and accepted on the 21st of February 1857. The signatures on this draft were admitted to be genuine, and it was also admitted that it was drawn for the purchase money of the flour mentioned in the evidence, was protested at Alexandria, on the 25th of February 1857, and returned to the Bank of Commerce, where it had been discounted for Richardson, and that, on the 27th of February 1857, Richardson paid the amount of this draft to the bank, and the same was then and there returned to him, and has since continued in his possession.

The plaintiffs further offered in evidence certain orders,  [**6]  dated the 23rd of February 1857, by which Richardson directed Hinks & Co. to deliver the flour in question, marked in a certain manner, to certain specified drays, and that the flour was marked H. A., as directed in these orders, which marks are the same as these mentioned in the ship receipts, referred to by the witness, Roach. The plaintiff then asked the following instructions to the jury:

1st. If the jury find that the claimant, Richardson, sold the flour in question to Howard, and caused the same to be marked as stated in the evidence, and delivered to the wharfinger, to be shipped to Liverpool, by the "Annapolis," and shall further find that the claimant drew the draft, offered in evidence, upon Howard to liquidate the purchase money of said flour, and that Howard accepted the draft, and that the claimant parted with the draft, for value as mentioned in the evidence, then the claimant is not entitled to a verdict in this case.

2nd. If the jury find, from the evidence, that the flour in question was sold by the claimant, Richardson, to Howard, and that the claimant drew the draft, offered in evidence, on Howard for the purchase money, and that Howard accepted the draft,  [**7]  and that the claimant passed away this draft, for value, as stated in the evidence, then there was a legal transfer of the property in this flour, by the claimant to Howard, and the claimant cannot sustain his claim, notwithstanding the jury may find that the draft was dishonored by Howard, and the same paid by the claimant, as drawer.

3rd. That if the jury find that the claimant drew the draft, offered in evidence, on Howard, and that Howard accepted it, and that it was drawn to liquidate the purchase money of the flour, alluded to in the evidence, then such facts show a payment by Howard for the flour, and the burden of proof is upon the claimant to convince the jury that such draft was not intended as payment thereof.

The court (LEE, J.) rejected all these prayers, and to this ruling the plaintiffs excepted.

2nd Exception. The court then instructed the jury that, if they find from all the evidence in this cause, and find the same to be true, that the flour in question was sold and delivered by Richardson, the claimant, to Howard & Poor, and their accepted draft received in payment of the same, then the plaintiffs are entitled to recover, unless the jury shall find [**8]  that the flour was sold as for cash, and that before the said Howard & Poor came into possession of the same, or had it under their control, they failed to pay for said flour, then the claimant is entitled to a verdict in this case.

To the granting of this instruction, the plaintiffs excepted, and, the verdict and judgment being against them, appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

An order of court directing property attached to be sold, and the sheriff to "hold the proceeds subject to the ultimate decision of the cause," does not prevent a claimant from appearing in the attachment case and asserting title to the property.

Payment over, by order of court, of the proceeds of sale to the plaintiff, on his giving bond to indemnify the defendants, and all other persons, in case the suit should be decided against him, does not change the nature of the fund, nor prevent a claimant from appearing and asserting title to the property.

Nor does the fact that the claimant is prosecuting another suit in the same court for the same cause, prevent his appearing and asserting title to the property in the attachment case.

A sale of flour, the vendor drawing a draft for the purchase money on the vendee, at one day after sight, is a sale on credit, though indefinite as to the time of payment, because of the uncertainty when the draft would be accepted.

As to what constitutes delivery, regard must be had to all the facts bearing upon the question, and especially to the character of the transaction and the interest of the parties, in order to ascertain whether the delivery was such as the nature of the case admitted.

Where flour is purchased for shipment, and marked with the initials of the purchvser and the ship, and delivered to the proper agent of the ship, it is as complete a delivery as the subject-matter under the circumstances reasonably allowed.

Delivery to the master or agent of a vessel, where the goods are designed for shipment, is equivalent to delivery to the vendee.

Where goods are ponderous actual delivery is not required, but a constructive delivery may be implied from various acts, such as designating them for the use of the purchaser, by marking or removing them for the purpose of being delivered.

The fact that the vendor took receipts for the flour, in his own name from the warehouse-man, is not sufficient to countervail the legal effect of his delivery of the flour to the warehouse-man, marked with the initials of the vendee and the ship, after acceptance of a draft drawn by him on the vendee for the purchase money; by these acts the property was transferred to the vendee, and the title of the vendor divested.

By acceptance of a draft, drawn by the vendor upon the vendee, for the purchase money of personal property, the title passed to the vendee, independent of delivery.

A note or acceptance, given at the time of purchase, does not destroy the vendor's right of action on the original agreement for the sale of goods, but suspends the right to sue till the expiration of the credit, and operates to pass title to the vendee, subject to the vendor's lien, if he has not parted with the possession, or his right of stoppage if the goods are in transitu.

The subsequent failure of the vendee to pay the draft does not affect the question of title; if one sells to another who becomes insolvent before payment, the property in the goods passes to the vendee, though the vendor may have a remedy for the price, by lien or stoppage in transitu, according to the situs of the property at the time of failure.  

COUNSEL:
Benj. C. Barroll, for the appellants, argued:

1st. That Richardson had no right to file a claim for the flour, after it had been sold and the proceeds paid over to the plaintiffs by order of the court. A claimant must make his claim while the property is in the hands of the sheriff, or under the control of the court. Whether the order directing the payment over to the plaintiff was regular and legal, or not, is not a subject-matter of inquiry in this court on this appeal. It must be treated as having been rightfully passed, no appeal having been taken from the order, which is the only mode by which it can be revised by this court. After the property has been taken out of court, by the order of court, and handed over to the plaintiffs, the court has ceased to have any further [**9]  jurisdiction over it. If the claimant of property lingers upon his rights until the thing claimed has passed away from the custody and control of the court, and injury ensues, he has his own laches to blame for it. If a party is allowed, as claimant, to litigate his claim to property not in the custody of the court or under its control, the question in such case is, (according to the form of the claim, 2 Ev. Harr., 47,) "Shall the property be condemned or not?" If the verdict should be for the plaintiffs there could be no condemnation of the property, because it is not in court, and the court stultifies the law as well as itself by allowing such an issue to be made and decided by the jury. The true answer is, that it is too late to make the claim when there is no property in court to respond to the verdict; it is a proceeding in rem, and the rem must be in court. Moreover, the recovery could not be from the plaintiffs, because there is no pretence that they ever had the flour in their possession or under their control. It could not be recovered from the sheriff, because the court had previously ordered the flour to be sold, and had afterwards ordered the proceeds to be paid over by [**10]  the sheriff to the plaintiffs. The sheriff, therefore, was exonerated by the order of court.

2nd. That the claimant having brought his action of trespass for taking of the flour, has elected his remedy, and it was not competent for him to become a claimant in this case, while that trespass suit was pending. The averment in the record is, that Richardson is testing his right in the same court by the property in question, by suit brought to the May term 1857, and the plaintiffs, at the hearing of the motion, offered the record of the suit in question in evidence, and the court, not differing as to the fact alleged, but differing as to the law, overruled the motion. It is submitted, upon all the analogies and as a matter of public policy, that a party having elected his remedy, cannot afterwards institute proceedings to test the same questions.

3rd. But if the claimant was properly in court, it is then insisted that the prayers of the plaintiffs ought to have been granted. The first prayer was offered and rejected in the court below, solely on the alleged ground that, there was no evidence of a delivery of the flour. To this it is answered: 1st, that it was marked for Howard;  [**11]  Story on Sales, sec. 311; 8 G. & J., 418, Clary vs. Fayer; 2 Kent, 501, 502; 2nd, the legal title was in Howard, and the title draws to it the possession of personal property, and possession and delivery are co-relative terms in law; 3rd, possession or delivery may be inferred by a jury from the exercise of acts of ownership; 6 Md. Rep., 18, Atwell vs. Miller; 4th, there was actual delivery to the ship for Howard; 5th, there was nothing left for Richardson to do to complete the delivery; 6th, there was a constructive delivery; 4 Gill, 270, Van Brunt vs. Pike; 6 Md. Rep., 10, Atwell vs. Miller; Story on Sales, sec. 306.

The appellee says that, the marks on the flour were not to designate the flour as Howard's and for the ship "Annapolis." The evidence is that the flour was for Howard, and it would be a violent and absurd conclusion to suppose that H. meant Hinks. Hinks had been paid for it; it was purchased for Howard, and the conclusion is irresistible that it was being shipped for Howard, as it could not be shipped for any one else without fraud, which is not to be presumed. Again, the appellee further says, that Richardson bought the flour from Hinks to fill an order from Howard [**12]  & Poor. From this it might be argued that the flour belonged to Howard from the beginning, that Richardson never had any title to it, having acted only as an agent. It would then follow that the delivery to him was a delivery to his principal, and the argument if advanced by the appellee would be suicidal. But there is evidence, and the case was tried below on this theory, that there was a purchase by Richardson from Hinks of flour intended for Howard, and a sale of that flour by Richardson to Howard. The claim, as filed, avers the flour to be the property of Richardson, and is in conflict with the idea that he was Howard's agent in the purchase of the flour. The claim filed asserts title in Richardson, and not that he had a right to possession or a lien upon it.

The second prayer is also good law. There was no delivery necessary if title to the flour had passed otherwise to Howard. If the draft was drawn (as admitted) for the purchase money of the flour, then there was a purchase or a sale of the flour. Howard bought it--Richardson sold it, and the moment a note or draft is taken for goods sold, the title to the goods vests in the vendee, and is not retained in the vendor until [**13]  the maturity of the note. Suppose the goods are burned up before the maturity of the note, it is the loss of the vendee, whether the goods are actually delivered or not. Not only so, but taking a note destroys the vendor's lien and he cannot withhold the delivery of the goods, (Story on Sales, secs. 286, 291; 2 Bing., N. C., 755, Hewison vs. Guthrie) because as soon as a note is given, the vendee has the right to immediate possession, and such right is inconsistent with the right of lien in the vendor. The right of stoppage in transitu is not involved in the case at all, and Richardson, in fact, never exercised that right if he had it. The appellee seeks to use the petition of Howard and Poor, in which they say that the flour was only to be delivered to them when paid for by them, but it is submitted that that petition, or the facts contained in it, are not before this court; the only evidence, at which this court can look, is to be found in the bills of exception. Further in support of the law of this prayer, see 5 Gill, 101, Gough vs. Edelen; 6 Md. Rep., 37, Foley & Woodside vs. Mason; 3 Md. Rep., 67, Stewart vs. Redditt.

The third prayer should also have been granted. It is [**14]  conceded, that as between vendor and vendee, an unpaid overdue note or draft is not payment. But where the rights of third parties intervene the rule of law is different. If these appellants were not trespassers when they caused the flour to be seized, the subsequent payment of the draft by the appellee cannot make them such. The real question is whether Richardson, on the day the flour was attached, had not been paid for it? He had assigned the indebtedness of Howard to himself, to the Bank of Commerce for value received. As soon as Howard accepted the draft he owed the bank, and Richardson had no claim whatever upon him for the purchase money of the flour. The reason why an over-due, unpaid note is not payment as between vendor and vendee, is that the vendor suing for the original indebtedness has the right to cancel or annul the note. As between them the note is only evidence of indebtedness and not payment, but as between third parties, the vendor has not the right to cancel the note if the rights of such third parties are thereby changed; all the decisions on this subject relate to the immediate parties to the note. But in the present case the draft was not annulled or cancelled.  [**15]  It remains in full force, and is therefore to be considered as payment of the original indebtedness for the flour, even as between Richardson and Howard.

3rd. That the instruction given by the court was erroneous. The court rejected the plaintiffs' first prayer, because it was said there was no evidence of delivery, and yet, by this instruction, the question of delivery was put as a fact to the jury. The court also rejected the plaintiffs' third prayer, that the draft was prima facie evidence of payment, and yet put the question as a fact to the jury, that the draft was received in payment, and required the jury to find the sale and delivery, as well as the payment, to entitle the plaintiffs to recover, when either a sale and delivery, or payment, was sufficient. And then, although the jury might find the sale and delivery, yet the plaintiffs still could not recover if the jury found the flour was sold for cash, and that before Howard came into possession of it he failed to pay for it. But there is no evidence that the sale to Howard was for cash. The appellee says that the presumption of law is, that all sales are for cash unless otherwise stipulated. But the evidence in the [**16]  case is conceded to be that the draft was for the purchase money of the flour, and if the flour was sold for a draft, as shown by the testimony, it was not a cash sale. What is the usage of trade, in such cases, is not shown as it ought to have been, if it was to be contended that it was a sale for cash. It was a sale on time, and not a sale for cash. Again, the court's instruction involved the contradiction of requiring the jury to find a sale and delivery of the flour to Howard & Poor, and then annulling the force of such sale and delivery, provided they had failed to pay for said flour before they came into possession of it, or had it under their control.

Geo. W. Dobbin, for the appellee:

The practice of filing a claim of property in attachment by a stranger to the attachment suit, is one which, though not based upon any Act of Assembly, is now well-established by long and uniform usage. It grows out of the necessity of the case, and affords a short and simple mode by which the title to the property attached may be tried, and if found to be in the claimant, the property itself may be restored to its rightful owner. As long as the property remains in court, the subject [**17]  of dispute between the plaintiff and defendant, or the garnishee, any one claiming the property may rightfully intervene and assert such claim. The appellant supposes that, because the court had, upon his application, ordered the property to be sold, that after the change of the property from flour into money, the claim of property comes too late. This would be a ready and simple mode of purchasing the rights of third persons. But the Act of 1839, ch. 39, under which the form of ordering the sale is given, directs that "the proceeds of sale shall be paid into court, and be deposited to the credit of the suit in which the order shall have been passed." It cannot be supposed that the law meant to change the rights of the parties, by a sale ordered to be made upon the ground that the thing attached is perishable. Nor is the claim of Richardson altered by the fact, that after the money was brought into court, it was paid to the plaintiffs, by the order of the court, upon their filing a bond to save all persons harmless. It is respectfully submitted, that such order was wholly irregular, and not warranted by any Act of Assembly, nor by any established practice in attachment suits. There [**18]  was no condemnation nisi, and no recognizance, as is usual where execution is issued before the expiration of a year and a day. But if it were otherwise, the condition of the bond is, that the obligors "shall save the defendants, and all other persons, harmless, in case the suit aforesaid shall be decided against the said plaintiffs." To enable Richardson to recover upon this bond, he must sustain the title to the property as his own, which could only be done by his filing his claim in the attachment suit, and making it good in proof. The claimant, Richardson, was not bound to elect his remedy, but could both claim the property in attachment and sue in trespass. 6 G. & J., 298, Ranahan vs. O'Neale. 10 Md. Rep., 14 Trieber vs. Blocher. Nor was Richardson bound to delay his action of trespass till his claim in the attachment suit was established. The right of action in trespass was complete as soon as the property was taken. But, if not so, the objection that he also claimed the property in the attachment may be taken when the trespass suit comes to be tried. The two suits are for different things. The claim seeks to recover the property in specie--the trespass suit, damages for the [**19]  taking and detention.

The main question in the cause, is, did the dealings between Howard & Poor and Richardson pass the title in the flour from the latter to the former. Richardson bought the flour from Hinks, and paid for it with his own money, thus vesting a complete title in himself. But he bought it to fill an order he had received from Howard & Poor. The flour was delivered by Hinks to Richardson, and by the latter sent on board the ship "Annapolis," he, Richardson, taking the ship owner's receipts for the same in his own name. These receipts were retained by Richardson, and never delivered to Howard & Poor. In their petition filed in the cause, Howard & Poor admit that the flour was to be delivered to them only when paid for by them. But, it is contended that, Richardson having drawn for the flour at one day's sight, which draft was accepted by Howard, and had been discounted for Richardson by the Bank of Commerce, the receipt by Richardson of the draft was payment for the flour, and transferred the property therein to Howard & Poor, notwithstanding Richardson had endorsed the draft, and, when it came back dishonored, had paid it, and produced it at the trial. The taking [**20]  of a promissory note is not a payment which extinguishes the original contract, unless the party receiving it expressly agrees that it shall be received as payment, or unless he parts with it, and cannot produce it at the trial to be surrendered or cancelled. The reason in the former case is, that the note, being of no higher dignity than the original contract, will not merge it, and can only be substituted for it by an express contract of substitution; and, in the latter case, that if the party were allowed to recover on the original contract, without the surrender of the note, the debtor might be compelled to pay twice. In this case, the note was produced at the trial, upon notice by the plaintiffs. 3 Cranch, 311, Harris vs. Johnston. 6 H. & J., 170, Insurance Co. vs. Smith. 2 G. & J., 509, Glenn vs. Smith.

But there was, not only no payment for the flour, but no delivery of it, either actual or symbolical. Richardson bought the flour from Hinks, and paid him for it. It was delivered to him, and by him sent to the ship "Annapolis," and the receipts for it taken to him, Richardson, in his own name, Howard's not being mentioned nor known in the transaction. No bills of lading [**21]  were ever made out, the attachment having intervened, but the proof is that if bills of lading had been made out according to the commercial usage, they would have followed the form of the receipts, and would have been issued in the name of Richardson. There is surely nothing thus far which shows a delivery to Howard, for he had nothing whatever to do with the transaction. But Richardson directed the flour to be marked H-A, and the plaintiffs contend that such marking constitutes a transfer of the property by a symbolical delivery. It is respectfully submitted, that this proposition is not law. First: it is not to be assumed that H-A meant "Howard, Annapolis," any more than it meant "Hinks, Annapolis." There are cogent reasons why Richardson might have required Hinks, who had sold him flour contracted to be of a particular kind and quality, to mark the flour he delivered, so that in the event of a dispute as to the proper fulfillment of his contract, he could be confronted with his own marks. Secondly: the mark was not shown to have been put there by the direction of, or agreement with, Howard, and is not such a marking with the name of a buyer as is intended to show to all the world [**22]  that the barrels so marked were the property of Howard. A marking with the name of a buyer, passes the property only in cases where such marking is made by agreement between the parties, as the evidence of a change of property, and to stand in the place of an actual delivery, and not where a mark is put on only to distinguish the property so marked from others, or when it is, either, part of the bargain that the property shall change only when paid for, or it is the evident intention that payment shall precede delivery. Thus a tradesman who, when a customer selects goods, lays them aside and marks his name upon them, loses thereby no right of possession or property, till he is paid for them. The authorities fully sustain this position, and none more fully than Story on Sales, cited by the appellants.

The counsel for the appellants, objects to the instruction of the court that there was no evidence that the sale was made for cash. The defendants, Howard & Poor, admitted that the flour was to be paid for before delivery, which is a sale for cash, and the evidence was that Richardson, before he parted with the flour, he living in Baltimore, and Howard in Alexandria, drew on him at [**23]  one day's sight, which is equivalent to cash, and held on to the flour till the draft could be collected. In presumption of law, all sales are for cash, unless otherwise stipulated. Here there is no proof of any different terms. The collection by a draft at one day between parties resident at a distance from each other, the property still remaining under the control of the seller, is a cash collection.  

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

OPINIONBY:
TUCK 

OPINION:

 [*410]  TUCK, J., delivered the opinion of this court:
We are of opinion that the court properly admitted the appellee to appear and assert title to the property in dispute. There had, it is true, been a sale of the flour, and the appellants had received the money from the sheriff, but the order of sale expressly provided that the sheriff should "hold the proceeds subject to the ultimate decision of this cause," and when the court permitted the appellants to have the use of the money, on giving bond with sureties, it was not intended to change the nature of the fund, or to deprive a claimant, if he proved successful in his suit, of the benefits secured to him by the Act of 1839, ch. 39. "The effect [**24]  of the sale was to convert the goods into money, which remained in the hands of the sheriff, to await the determination of the attachment, subject to any claims that might have been asserted against the goods themselves" O'Brien vs. Caldwell, Ante, 122. The bond was required for the indemnity of all concerned, and, indeed, an accommodation to the plaintiffs, who could not have obtained the use of the money without it. And, although it might furnish a cause of action against the obligors, their liability depended on the termination of the suit adversely to the plaintiffs, and of necessity implied a controversy about the property in the present case. This doubtless was the understanding of the court and the parties, and they ought not to pervert the court's indulgence into a means of protracting the litigation, if the case goes against them.
The objection that the appellee was prosecuting another suit for the same cause, cannot be sustained. The case of Trieber vs. Blocher, 10 Md. 14, though not decided on the same state of facts, must govern the present, the same principle being applicable to both.
The result, as to the rulings on the prayers and the instruction [**25]  given, must depend on the ownership of the flour at the time the attachment was laid. And here we may remark 

 [*411]  that the doctrine of stoppage in transitu is not involved; the prayers do not present the case in that aspect, nor have the counsel so treated it, for, on both sides, it appears to have been conceded that if the title passed to Howard the attachment would lie.
The flour was purchased by Richardson, on the 15th of January 1857, "to be delivered at the buyer's option, at any time between the 15th and 28th of February, payable on delivery, or if not demanded previous to the 20th of February, the seller may require payment on that day, or any day thereafter." On that day Hinks' bill for the flour was paid. On the same day Richardson drew the bill of exchange on Howard, for the purchase money of the flour, at one day after sight, and negotiated it at bank. The draft was accepted on the 21st, protested at Alexandria on the 25th, returned to the bank, and taken up by Richardson on the 27th. In the meantime--on the 23rd and 25th--all the flour had been marked with the initials of Howard and of the ship, as directed by Richardson, and delivered to the warehouse-man of [**26]  the ship's agents. It is admitted that the flour was purchased by the claimant on account of Howard, and the evidence shows that it was purchased to be shipped to Liverpool on his account. It is not shown why the flour was sent to the ship before advice of the non-payment of the draft; an inference may be drawn from this fact that the claimant, after the acceptance, considered the purchase as closed. As the case is presented by the record, it was a sale on credit, though indefinite as to time of payment because of the uncertainty when the draft would be accepted.
There is evidence in the cause warranting the conclusion, that Richardson bought the flour as Howard's agent, but, as the counsel have considered the transaction as a purchase by Richardson of flour intended for Howard, and a sale of that flour by Richardson to Howard, and as the rulings below appear to have been based on that theory of the case, we shall view it in that aspect.
The first prayer asserts that the sale to Howard, marking the flour, and delivering it to the warehouse-man to be shipped, 

 [*412]  the drawing of the draft, its negotiation for value, and acceptance by Howard, are sufficient in law to prevent [**27]  the claimant's recovery. The second prayer affirms that the sale and the draft, and its acceptance and negotiation, operated a transfer of the flour to Howard, and that the claimant cannot recover, although the draft, on being protested, was taken up by Richardson. And the third goes upon the ground that the facts stated as to the draft constituted a payment to Richardson by Howard for the flour, unless the claimant showed that it was not intended as payment. The propositions presented by the last two are substantially embraced by the first.
Many cases have been decided in reference to the sale and delivery of chattels. The principles governing such questions appear to be well settled, but much difficulty is often presented when judicial tribunals come to apply them, arising from the great variety of mercantile transactions. Some of the cases are difficult to be reconciled, if not altogether inconsistent, with others, and in most it may be said that the courts have endeavored to ascertain the intent of the parties, and applied that test as a controlling principle, in defining their rights and obligations, inattention to which has, not unfrequently, caused great injustice. Regard must [**28]  be had to all the facts bearing upon the particular question, and, especially, to the character of the transaction in which the parties may have been engaged, to ascertain whether the delivery was such as the nature of the case admitted. 2 Kent 500. The flour was not to be sent to Howard, or actually delivered to him; its proper destination was the ship Annapolis, by which it was to have been carried abroad, and for which purpose it had been purchased, and, when marked and delivered to the proper agent of the ship, it was in a custody consistent with the execution of that purpose; it was as complete a delivery as the subject matter, under the circumstances, reasonably allowed. That delivery to the master or agent of a vessel, where the goods are designed for shipment, is equivalent to to delivery to the vendee, see 2 Kent 499, et seq., and Story on Sales, sec. 306. Where the goods are ponderous, actual 

 [*413]  delivery is not required; a constructive delivery may be implied from various acts, among which are, designating them for the use of the purchaser by marking, or removing them for the purpose of being delivered. Clary vs. Frayer, 8 G. & J. 398. [**29]  4 Gill, 270. 6 Md. Rep., 10. 1 Camp., 233. Story on Sales, sec. 311. 2 Kent 500, 503. It is reasonable to suppose, from the nature of the transaction, that the flour was so delivered in pursuance of such understanding between the parties to the sale. It is not pretended that Richardson designed to ship the flour as his own; why, then, did he send it to the ship, except for the purpose of shipment on Howard's account, in accordance with his object in authorizing the purchase? By the terms of the purchase from Hinks, he had until the 28th of February to remove the flour. This was after the due-day of the draft, and afforded abundant time to have made the delivery after having received notice of its payment, if payment was a condition precedent to the transfer of the title to Howard.
Reliance was placed, in argument, on the circumstance, that Richardson had taken the receipts from the warehouse-man in his own name, as showing an intention not to part with control over the flour. We do not think that this fact is sufficient to warrant the presumption suggested, for the purpose of overcoming the legal effect of his other acts in [**30]  the business. The evidence does not show that the bill of lading would necessarily have been made out in his name, and if this had been done, an assignment to Howard would have made the shipment conform to the original object of the purchase, as fully as if the receipts and bill of lading had been taken in his name. It was a proper precaution on the part of Richardson to identify this flour as that shipped by him on Howard's account, in the event of any question being raised as to the fact of delivery.
In the absence of testimony, qualifying or explaining these acts of Richardson, we must conclude that he considered Howard entitled to the flour on his acceptance of the draft, and that he designed the delivery to the warehouse-man as a completion of the contract, by which the property was transferred to the purchaser, and the title of the vendor divested.

 [*414]  We are also of opinion that the title passed to Howard upon his acceptance of the draft, independent of the delivery. A note or acceptance given at the time of purchase does not destroy the vendor's right of action on the original agreement for the sale of goods, but it is a payment sub modo, (6 H. & J. 166;)  [**31]  it suspends the right to sue for the price until the expiration of the credit, and operates to pass title to the vendee, subject, of course, to the vendor's lien, if he has not parted with possession, or to his right of stoppage, if the goods are in transitu. The interests of trade and the variety and extent of circulation of property which it has introduced, require that it should be so, for most commercial transactions are based on negotiable securities, and where the terms of the contract are complied with, possession may be demanded by the vendee, because right of possession accompanies the title, (8 G. & J. 398,) though this rule of law may be dispensed with by agreement, according to the maxim, "Modus et conventio vincunt legem." 2 Md. 73. Broom's Maxims, ch. 7, p. 303. Walker vs. Birch, 6 Term Rep. 258.
In the case of Dixon vs. Yates, 5 Barn. & Adolp. 313, (27 Eng. C. L. Rep. 86,) where the vendee gave his acceptances for the price of the article, but there was no actual delivery, it was held, that, while the bills were running, the vendee had the power to take it into his possession,  [**32]  and to dispose of and sell it, but not having exercised that power by any sufficient means, the property revested in the seller upon the bills being afterwards dishonored, and, accordingly, his lien for the purchase money was recognized. The difficulty in the case was, whether there had been such a delivery to the purchaser as defeated the seller's lien, but Lord Denman, and the other judges, treated the bills of exchange as a payment sufficient to vest the title in the vendee. It does not follow, however, that such a payment will merge the cause of action on the original contract between the parties, if the note or bill is not paid. See Smith's Merc. Law, 624, 661, (Ed. 1858;) Smith's Law of Cont., 330; Story on Cont., secs. 484, 500; Chitty on Bills, (8th Ed.,) 80, 84; 10 Barbour 573; Chitty on Cont., 353; Hewison vs. Guthrie, 29 Eng. C. L. Rep. 477; 

 [*415]  Bunney vs. Poyntz, 4 Barn. & Adolph. 568, (24 Eng. C. L. Rep. 118.)
The question of title is not affected by the subsequent failure of Howard to pay the draft. If one sells to another, who becomes insolvent before payment, the [**33]  property in the goods passes to the vendee, though the vendor may have a remedy for the price by lien or stoppage in transitu, according to the situs of the property at the time of failure to pay. Chitty on Contracts, 335. In this case, Howard became bound for the flour on the 21st of February; that liability was to the bank, or to whoever might have become the holder of the draft. Is it just that, being so liable, by reason of Richardson's act in negotiating the draft, the latter should be considered as owner, and the flour liable to seizure for his debts, while Howard might have the money to pay? If this were an attachment, at suit of Richardson's creditors, claiming the property as his, we do not suppose any authority could be produced to the effect, that under the circumstances disclosed by the record, the title remained in the vendor, and had not passed to the vendee, and we are not aware of any principle of law to warrant such an unreasonable conclusion.
There was error also in the instruction which the court gave. By the first clause the jury was required to find, as essential to the plaintiffs' recovery, a sale, delivery and payment by the bill of exchange, whereas,  [**34]  if there was a sale and delivery, or a sale and payment, the title passed; and by the second clause, the jury was authorized to find for the defendant on certain facts, as to some of which the record furnishes no evidence. Without adverting to other objections urged in argument, the judgment must be reversed on all the rulings of the court below.
Judgment reversed and procedendo ordered. 

80 of 196 DOCUMENTS 

THE HOFFMAN STEAM COAL COMPANY, OF ALLEGANY COUNTY, vs. THE CUMBERLAND COAL & IRON COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 456; 1860 Md. LEXIS 80 

July 13, 1860, Decided 

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

This appeal is from two orders of the court below, refusing to dissolve and continuing till final hearing, an injunction granted upon a bill filed, on the 6th of December 1858, by the appellee against the appellant, and Allen M. Sherman and Wm. B. Dean, for the purpose of vacating a deed made by the complainant to Sherman and Dean, for certain coal lands in Allegany county, as well as to set aside a contract for transportation, which was executed at the same time, and in fact accompanied the deed.

By this deed, dated the 22nd of April 1856, the Cumberland Coal and Iron Company conveyed 1215 acres, part of its coal lands, to Sherman and Dean, five undivided eighths thereof to the former, and three undivided eighths thereof to the latter, in consideration of the sum of $ 28,000, in hand paid to the company by the grantees, and the further sum of $ 112,000 to be paid by the grantees, by paying and satisfying 112 bonds of the company for $ 1000 each, being part and parcel of 467 bonds, for the same amount each, issued by the company and payable on the 1st of January 1864, with six per cent. interest, payable [**2]  semi-annually, on the 1st of July and January in each year, the grantees assuming and undertaking to pay the principal and interest of said 112 bonds.

By the transportation contract, between the same parties and of the same date, and recited to have formed "a part of the inducement and consideration of said purchase," the company agrees and covenants with Sherman and Dean, and their heirs, lessees and assigns, to provide and maintain in good order, for the full term of twenty years from the 1st of May 1856, a good and sufficient railroad from the lands granted by the deed, to Cumberland, and to provide at all times during that period suitable and sufficient cars and engines, and to receive and take all the coals and other freight which may be mined and produced upon and from said granted lands, and to carry at certain specified rates and deliver the same at the city of Cumberland, in and upon the cars of the Baltimore and Ohio Railroad, or into and upon the boats on the Chesapeake and Ohio Canal, and for a refusal on the part of the company to comply with their part of this contract a heavy penalty is provided.

On the 19th of August 1858, Sherman and four other parties formed [**3]  themselves, under the provisions of the Act of 1852, ch. 322, entitled: "An Act to authorize the formation of corporations for mining purposes," into a company under the corporate name of "The Hoffman Steam Coal Company of Allegany county," for the purpose of carrying on the business of mining coal in Allegany county, with a capital stock of $ 500,000, to be divided into 5000 shares of the par value of $ 100 per share, and on the next day (20th of August 1858) Sherman and Dean conveyed, by deed, to the company the land which had been previously conveyed to them by the Cumberland Coal and Iron Company. This deed recites that Sherman and Dean became subscribers for and took, 4990 shares of the capital stock of the Hoffman Steam Coal Company, on the express agreement and understanding, that the price of such shares should be paid for by the conveyance of these lands, and all rights and easements thereto belonging, and they are conveyed subject to the lien thereon reserved by the Cumberland Coal and Iron Company for the payment of the interest and principal of the 112 bonds of that company, referred to in the deed to Sherman and Dean; and the Hoffman Steam Coal Company accepted this conveyance [**4]  with the express understanding and agreement that it should pay, or provide in the hands of Sherman and Dean the means to pay, the interest and principal of these bonds as they became due, in exoneration of all liability on the part of Sherman and Dean to the Cumberland Coal and Iron Company.

The gravamen of the bill is, that Sherman, one of the grantees in the deed from the complainant to him and Dean, was one of the directors of the complainant, and it is insisted, therefore, that by reason of his being a director he was under a legal disability to become a purchaser from the complainant; and that Sherman was either in fact the sole purchaser, and the use of Dean's name merely colorable, or else that Sherman was the agent of his co-grantee in making the purchase. The bill also charges fraud in fact, in obtaining said deed and transportation contract. It also charges that the Hoffman Steam Coal Company was formed and is conducted, controlled and directed by Sherman; that he and Dean became subscribers for 4990 out of the 5000 shares of its capital stock, and the other ten shares were nominally taken by other parties, to enable them to participate in the formation of the company [**5]  and become directors; that Sherman is an officer as well as director of the company, and has and exercises entire practical control over it, and that the change or conversion of his ownership in the said lands into an interest in the stock in said company, by the deed of the 19th of August 1858, and the said subscription for stock was a fraudulent device, for the purpose, and with the design, of evading the jurisdiction and process of this court; and that said company, before the execution and delivery of said deed, and said Dean before he entered into the purchase of said lands, had full notice of the frauds in said sale, and in the procurement, origin, formation, execution and delivery, of the deed and transportation contract from the complainant to Sherman and Dean. It also charges that the lands so sold are of great and peculiar value, and possess important advantages for economy of mining and transportation; that they were sold at a grossly inadequate price, and that Sherman and Dean have already mined and taken therefrom large quantities of coal, and are continually removing coals from said lands and converting the same to their own benefit.

The prayer of the bill is, that [**6]  all the defendants may be enjoined from conveying or encumbering these lands, and from mining and taking away coal therefrom, or assigning the said transportation contract, or instituting any action for any alleged breach thereof; and that Sherman and Dean may be enjoined from transferring or encumbering any shares of stock in the Hoffman Steam Coal Company, or from parting with the possession and control of the said deed and contract of transportation; and that the said contract of transportation and the deed of the 22nd of April 1586, and the conveyance of said lands to the Hoffman Steam Coal Company may be declared void, and a re-conveyance thereof be decreed to the complainant, and that Sherman and Dean should convey to the complainant all the shares of stock in the Hoffman Steam Coal Company which they had received, and that the defendants may be decreed to account for the coal removed from the lands, and the proceeds thereof, which they have received, and for general relief.

The injunction was granted as prayed, and the defendants filed separate answers. The answer of Sherman denies positively the various allegations of fraud contained in the bill, denies that Dean was a [**7]  mere nominal party, or that he acted for Dean in making the purchase, and denies that the Hoffman Steam Coal company and himself, or himself and Dean, are the same, or that he has any greater interest in the stock of, or power over, the said company, than any other of its directors or stockholders. He sets out in his answer all the facts attending the sale, and all the proceedings and resolutions of the stockholders and directors of the complainant, relating thereto.

The answer of Dean confirms that of Sherman, and in addition sets up that he was a bona fide purchaser for a valuable consideration, without notice of the complainant's alleged equity, and without even notice of the fact that Sherman was a director of the complainant.

The answer of the Hoffman Steam Coal Company also denies all fraud, and pleads that it is a bona fide purchaser for a valuable consideration without notice of the complainant's alleged equity, and also avers, that subsequently to the execution of the deed of the 22nd of April 1856, from the complainant to Sherman and Dean, it was represented that some informality existed in the manner of the acknowledgment of the same, and thereupon two other deeds,  [**8]  one of the 24th of September 1857, and the other of the 1st of October 1857, from the complainant to Sherman and Dean, for the same lands, were executed and recorded, prior to the execution of the deed of the 20th August 1858, from Sherman and Dean to this respondent, which refers to the deed of the 1st of October 1857, as the deed under which the said vendors had title to and held said lands, and that neither of these deeds, of the 27th of September and the 1st of October 1857, is, in any manner, assailed or impugned by the bill, and are clear and unequivocal confirmations, by the complainant, of the right and title of Sherman and Dean in and to the said lands. This answer also relies upon other acts of the complainant as confirmatory of the transaction, even if it were originally avoidable.

After the answers were filed, all the defendants moved to dissolve the injunction. Testimony was then taken by the parties, under the Act of 1835. The bill, answers, exhibits and testimony, are too voluminous to admit of a statement of them at length. The facts, it is thought, are stated sufficiently for an understanding of the opinions delivered and the points decided, in the opinions themselves.  [**9]  

Prior to the hearing of the motion to dissolve, the complainant asked leave to amend its bill so as to set forth and include therein all like statements, allegations and prayers in respect to the two deeds, of the 27th of September and the 1st of October 1857, as are set forth and included in respect to the deed of the 22nd of April 1856, the said two deeds purporting to be conveyances for the same lands, and merely confirmatory of the latter. The cause was then heard on the motion to dissolve, and the court, on the 25th of May 1859, refused this motion, and passed an order allowing the complainant to amend its bill as prayed, without prejudice to the injunction already granted. The following is the opinion of the court below (PERRY, J.) delivered upon passing this order:

"The opinion I entertain in regard to the law by which this case must be determined, dispenses with a lengthy statement of facts.

"It appears that on the 21st of February 1855, Allen M. Sherman, one of the defendants, was elected a director of the Cumberland Coal and Iron Company, and was in that board, acting as such, until the 29th of May 1858; that during that period, he was, by said company, appointed [**10]  on a committee to report upon the propriety of a sale of part of its real estate; that on the 22d of April 1856, a deed was made by that company, conveying to him and one Dean, also a defendant, 1215 acres of land; for that, and what is called the transportation contract, they were to give $ 140,000; that they, Sherman and Dean, on the 20th of August 1858, conveyed this land to The Hoffman Steam Coal Company, a corporation organized under the Act of 1852, ch. 322, such organization having taken place since the execution of the deed of the 22d of April 1856, from the complainant to them; that Dean acquired his title under the circumstances hereinafter detailed. The bill was filed on the 6th of December 1858, and prays for an account and an injunction to prohibit the defendants from excavating coal, and for a decree to vacate the deed.

"The questions to be determined are, whether Sherman could, while acting as a director, purchase the land conveyed by the deed of the 22d of April 1856, and now in dispute? and whether there exists such a state of facts as to make an equitable title in The Hoffman Steam Coal Company, by ratification, acquiescence, or a purchase by that company, without [**11]  notice, and by which this court can pass a decree affecting the rights or title of Dean to the lands in controversy?

"It has been established from the earliest period to be the general rule of law, 'that a trustee cannot be a purchaser and seller, so as to divest his cestui que trust of all title in the property sold.'--'A trustee, it is true, may buy from the cestui que trust, provided there is a distinct and clear contract, ascertained to be such after a jealous and scrupulous examination of all the circumstances, that the cestui que trust intended the trustee should buy, and there is no fraud, no concealment, no advantage taken by the trustee, of information acquired by him in the character of trustee.'--'But when a purchase is made, by a trustee, of trust property, or any part of it, for himself, such a transaction is looked upon with greater odium and suspicion than where the dealing is between the trustee and his cestui que trust.' It has also been determined, 'that without any consideration of fraud, or looking beyond the relation of the parties, such a contract was void, as interdicted by the policy of the law.' And though the authorities seem scarcely to warrant that [**12]  assertion in its extreme sense, yet it is indisputably established that such a transaction will not be allowed to prevail under any circumstances during the continuance of the fiduciary character, unless it be made with the full concurrence and consent of the persons beneficially entitled to the property, who, of course, must be competent to consent, and even then it will be regarded with great suspicion. In the absence of such corroborative circumstances, a purchase of this kind, however fair and honest in itself, is voidable at the option of the cestui que trust; nor is it necessary to show that the trustee has made any profit, or obtained any advantage, by his purchase; although it will be supported against the purchaser, if found to be beneficial to the trust estate. This doctrine applies not only to trustees, strictly so called, but also to persons standing in a similar situation, as agents for buying or selling property. 'He who undertakes to act for another, in any matter, cannot, in the same matter, act for himself.' Burrill on Assignments, (2nd Ed.,) 503. Where any person, acting as agent for others, sells a trust estate, and becomes himself interested, either directly or [**13]  indirectly, in the purchase, the cestui que trust is entitled, as of course, in his election, to acquiesce in the sale or not. It is thus seen that he cannot act as agent, and become himself the buyer and seller at the same time. The policy of the rule is to shut the door against temptation, which, in cases in which such relation exists, is deemed to be of itself sufficient to create the disqualification. 4 Kent, (7th Ed.,) 438. 1 Story's Eq., sec. 322. Story on Agency, sec. 211. Michoud vs. Girod, et al., 4 How., 503, 554, 558. Such doctrine is undoubtedly maintained in Maryland in the late case of Keighler, et al., vs. Savage Manuf. Co., 12 Md. Rep., 416. The Chief Justice says: 'Its paramount and its vital principle is good faith; without it, the relation of principal and agent cannot exist; and so sedulously is this principle guarded, that all departures from it are esteemed frauds upon the confidence bestowed. And that if an agent buy without the consent and knowledge of a principal, or if with the consent, the principal not being fully and thoroughly advised of every fact and circumstance in the possession of the agent, such sales are invalid.' From these authorities it will [**14]  be seen to be the law, that one who is connected with another, by being employed as agent to make sale, is incapable of purchasing at such sale by himself or by his control, as it would invest him at the same moment, with inconsistent, contradictory and conflicting characters; that a title to property, purchased under such circumstances, can only be acquired by the ratification of the sale, acquiesced in by those who are interested in its disposition, and then, after a full exposition of all the facts known to the purchaser; that the law does not impose upon the cestui que trust the necessity of showing the existence of actual fraud, the inquiry being not whether such was or was not the case; that the purchase is voidable at the instance of the cestui que trust, on the ground of policy, to remove all temptation to abuse, and of danger of imposition, and which could not be easily exposed.

"Whether Sherman is to be regarded as trustee, in a technical sense, it is not important to determine. It is enough to know that he was acting for others; that he was clothed with powers which imposed upon him the duty to sell for the benefit of the stockholders of the company. He was not only [**15]  a director, but on the executive committee, to inquire into the policy or propriety of the sale; was possessed of all information as to the value of the land, all circumstances which suggested the expediency of the sale, and after such was determined upon, was retained to make the sale; was standing in the relation of the greatest confidence; an agent of the complainant, and to act for the benefit of its stockholders. Independent of the special appointment of the board of directors, his position, as such, in some sense, made him a trustee for the stockholders. For them, they were to administer the affairs of the company. The stockholders were the persons to be benefited or injured. A sale of the land for less than its real worth, impaired the value of the stock in the same proportion. The directors could not, for the reasons assigned, sell to themselves. It is equally certain that one of their number, selected to sell, for the purpose of liquidating the indebtedness of the company, could not make such contract to buy. Burrill on Assignments, (2nd Ed.,) 504, 505. Whitcote vs. Lawrence, 3 Ves., 740. Morse vs. Royal, 12 Ves., 374.

"It has been urged, with much ability, that no adjudicated [**16]  case can be produced to decide the contract of sale absolutely void; that it is valid to communicate a legal title to Sherman and Dean; and for that reason the complainant has to show affirmatively such circumstances as will justify the equitable interposition of this court in its favor; that the rules of equity, as applicable to Sherman, in consequence of his relations to the complainant, cannot operate against Dean, as he does not occupy that position. For the reasons already given, it would not be necessary for me to know more from the testimony than that the defendant was a director of the Cumberland Coal and Iron Company, to authorize this court to set aside the deed at the instance of that company. But as Dean is not in that predicament, his rights cannot be impaired from that circumstance. Before determining the case as to him--the probable interest or motives leading him to contract--I will look to some facts which have had influence upon my mind. There is nothing in the case to show that the transportation contract was ever made known to any person to buy--indeed, that any one was cognizant of its existence, except the parties connected with it. The contract or deed does not,  [**17]  in fact, liquidate or release the liability of the Cumberland Coal and Iron Company to pay either the principal or interest of the 112 bonds, part of the 467 bonds for $ 1000 each, at the rate of six per cent. per annum, payable semiannually on the first day of July and January 1864. It appears by the deed to Sherman and Dean, that they assumed and undertook to pay the principal and interest on these bonds; while, in truth, the responsibility of the company still continues. Afterwards, the Hoffman Steam Coal Company made a similar contract, by which that company was bound to pay the principal and interest of the bonds referred to. It will be seen also, that the complainant, for the $ 112,000, had no other security than the undertaking of Sherman and Dean and the Hoffman Company, as mentioned in those deeds; that if the parties paid the interest until the year 1864, the complainant could not complain of a violation of the contract; that in the meantime, by the transportation contract, the complainant was bound to furnish cars, and transport all coal, for Sherman and Dean, without restriction as to quantity; and in the event of a failure or refusal of the complainant to comply with the [**18]  agreement, as originally made, heavy sums, as liquidated damages, were to be paid. By the testimony, Dean appears to be a young man, about twenty-three or twenty-four years of age, without property or other sources of support, engaged in book-keeping in a mercantile house, with a salary merely sufficient to pay his ordinary expenses; and there is no evidence of his ever having seen the property purchased. Can it be esteemed as a contract made in good faith by him, with the expectation of paying his part of the purchase money? He had nothing. He did not know its value. Did he invest large sums, and assume heavy engagements, with a knowledge that he could and would comply? Can it be for a moment supposed that his money was used for that purpose? I have no doubt it would take much more to comply with his part of the agreement, than he seemed to be possessed of. His total want of means; total absence of ability to pay, and, in the language of Judge Davies, of New York, 'the readiness with which he entered into liabilities to such an amount, gives countenance to the allegation, that he was a man of little or no pecuniary responsibility.' I cannot see the wisdom of the contract on the part [**19]  of the company; how they could have been induced to make a deed to this irresponsible grantee; this can only be reconciled with the presumption that it was not for or with him, but that he was sent as the instrument to secure the title to others. He at least could not have been willing to invest the amount he was to pay. If he were the owner of his part of the first payment, is it reasonable to suppose he could have invested it in so careless a manner as is contended was done by him in this case? Would he have remained a clerk, at a salary not more than sufficient for his support, instead of using it in trade, or some other business, with hopes of a profit more certain than the uncertain trade in coal? Judging him by those rules which govern human conduct, he would have, if his purchase were real and bona fide on his part, thoroughly examined the condition, value, location, and every circumstance reflecting upon the land and its title, before he would have embarked his entire fortune in such an enterprise. But the testimony proves nothing of this kind to have been done. Did he not know that Sherman, his companion in the purchase, was a director in the Cumberland Coal and Iron Company?  [**20]  And in the absence of all other circumstances with which Dean is environed, it may well be questioned whether the deed would not be void on that account. He must have known the circumstances by which, as I have already stated, the law makes the purchase by Sherman a constructive fraud. Does not the participation of Dean in the purchase with this knowledge, taint the transaction with such fraud? It was, as testified to by Mehaffy, one entire contract, and if void as to one it may be doubted whether it is not void as to both. As he aided in the consummation of a contract which, from the wisest policy, the law has pronounced constructively fraudulent, and united with one to do that which would bring about a conflict between his self-interest and integrity, should he not be subject to those principles of law by which such transactions, as to his co-grantee, can be invalidated? The fact that Sherman tendered his resignation to the board of directors, and that such was refused, has been referred to for the purpose of showing that he had placed himself in a condition to justify his purchase. His being a director, and sustaining that character, and not, as such, being competent to purchase,  [**21]  such effort and refusal do not change that relation. It must be actually or virtually dissolved. He might have retired from the office and qualified himself for becoming a purchaser by divesting himself of that character, or if he retain the situation the parties must be put so much at arms length that they agree to stand in the adverse situations of vendor and purchaser.

"Conceding the deed to be voidable, it is urged that the conduct of the complainant has been such as to operate a confirmation of the sale in a court of equity. The doctrine upon that subject is, that those acts which will be esteemed as a confirmation must be of a deliberate character, by the party beneficially interested in the property, and where he was in possession of the nature of the contract, and honestly made acquainted with all the material circumstances of the case. There must be no suppressio veri, or suggestio falsi; the law requiring an exposition of the nature and terms of the contract, and that he was acquainted with his rights; that is, he must be aware 'that the transaction is of such a character that he could impeach it in a court of equity.' Lewin on Trusts, 390. Bell vs. Webb & Mong, 2 Gill,  [**22]  163. Hill on Trustees, 255, 256. I have seen no fact or circumstance in this case which authorizes me to determine, that the stockholders--those whose interests and rights are materially affected, indeed, the only persons injured--have been made acquainted with the nature and extent of the contract and sale in this cause. And the rule being, 'that they must be aware that the transaction is of such a character that they could impeach it in a court of equity,' I repeat, I cannot see in the case the least evidence to establish such a knowledge. Nor do I esteem the lapse of time as sufficient to bar the complainant. In all the cases to which I have been referred, much greater time has been required than exists in this. In England, in many of the early cases, the same period of time was required which governs the statutes of limitations. The modern doctrine is, not to regard the time of limitation as controlling the courts, but to leave each case to rest much on the facts. 'As it must be difficult to lay down, as a general proposition, what length of acquiescence will be a bar, this must necessarily be a matter of equitable discretion, depending on the nature of the transaction and the [**23]  circumstances of the parties in each individual case.' Hill on Trustees, 258. Smith vs. Clay, 3 Brown's Ch. Rep., 639. Stackhouse vs. Barnston, 10 Ves., 466. Bell vs. Webb & Mong, 2 Gill, 168. As before stated, in none of the cases to which I have been referred, have the courts gone so far as to decide what time must elapse to be sufficient. In one of the cases, (Mason vs. Martin & Kemp, 4 Md. Rep., 124, 125,) the court has intimated, that if, with a full knowledge of the transaction, the cestui que trust lies by for an unreasonable time, it will be considered as an acquiescence in the sale. So in the case of Williams vs. Marshall, 4 G. & J., 376, fourteen years was sufficient time to protect the executor, who was a purchaser at his own sale, against a stranger who sought to set it aside. I do not hesitate to regard the law as requiring from all directors of corporations, a careful and constant supervision over the rights, interest and property of the stockholders. The position or office they accept, imposes upon them a sacred obligation; and a departure from this duty will, in my opinion, be fraught with dangerous consequences to innocent stockholders and persons who have bestowed [**24]  upon them that confidence which should exist in those they may select to protect their interest. For a court of equity to be content with slight circumstances of confirmation, to determine doubtful facts to be enough to operate as a bar to all equitable relief, would be in conflict with the policy of the law, and an invitation to persons, who are selected to protect the property of corporations, to attempt a disposition of it to their own aggrandizement. They should be removed from such temptation, and any act which does not clearly point to the benefit of those for whom they were appointed, should be regarded with extreme jealousy. If a deed made to one of the directors is not sufficient to communicate a title which cannot be disturbed by a stockholder, surely acts of confirmation by the same body, and while the grantee remains a director, can have no greater validity. The deed is a solemn contract. The corporate acts claimed to be sufficient for confirmation, being of a less certain and solemn character, should not be esteemed of greater efficacy. Nothing has occurred between the period of Sherman's resignation May 29th, 1858,) and the filing of the bill, (December 6th, 1858,) which [**25]  can be esteemed evidence of such confirmation.

"The question, which has been ably argued, and which has been to me one of the greatest difficulty, is, whether the Hoffman Steam Coal Company is a purchaser without notice? The law in Maryland, as announced by the late Chancellor Johnson, is, 'that notice given to a director of an incorporated institution privately, or which he acquires from rumor, or through channels open alike to all, and which he does not communicate to his associates at the board, will not bind the institution. But if the notice is given to him officially, for the purpose of being communicated to the board, although such notice should not be communicated, the institution is bound by it.' United States Ins. Co. vs. Shriver, et al., 3 Md. Ch. Dec., 383. The Court of Appeals of this State has also determined, 'that knowledge of the president of a corporation is not knowledge of the corporation.' That it is true, as a general rule, 'that the principal is affected with the knowledge, and bound by the acts of the agent.' But this principle can have no application to a case in which the one party does not act as the agent, but avowedly for himself. 'To hold the company [**26]  responsible for all the acts of its officers, when they act confessedly in behalf of their interest, and in an adversary character, would be to sanction the grossest fraud; and that the general proposition was, 'that an agent, within the scope of his authority, may bind his principal; but not that an officer of a corporation may bind the latter in all cases whatever, especially not in a case in which he professes to represent none other than himself, and to deal with the company as though he had no official relation to it. And unless it was shown that the knowledge of the officer was communicated to the company, it was not sufficient to affect its rights.' Winchester & Lemmon vs. Balt. & Susq. Rail Road Co., 4 Md. Rep., 239, 240. Such being the law, as thus enunciated, it is insisted that there is no fact or circumstance to show, that any officer of that company has ever been officially advised in regard to the equities of the complainant; that nothing exists by which the company could have been induced to have made inquiry. In other words, that there is no such official communication with, or notice to this corporation, as required by the law of this State, which deprives it of the [**27]  advantages secured to them as bona fide purchasers. As already stated, I esteem the directors as those who have imposed upon them the duty of protecting the property of the corporation, and so administering its affairs as to advance the interests of the stockholders; and that all that may be done for the personal aggrandizement of these officers, and not for those they represent, will be regarded with the utmost distrust. The directors are the persons whom the charter has empowered to act for those who are interested in its capital or property. It is the general rule of law, as announced in the cases of the United States Ins. Co. vs. Shriver, et al., and Winchester & Lemmon vs. Balt. & Susq. Rail Road Co., that there must be official notice given to bind the institution. This could not be controverted if an effort was made to impute notice to an existing corporation, and when innocent parties had become concerned, and employed their means in the consummation of the purchase. The design of this rule is to protect persons in that condition; not those to whom the law imputes fraud in fact or by construction. Sherman and Dean were the owners of the land at the time of the organization [**28]  of the corporation. Will not the law fix upon them a knowledge of the legal rights of the complainant at the time of the subscription for the stock? They being entitled to the certificates, were as effectually, indeed more conclusively bound, than by a formal notice to one of the directors who does not advise his companions. The creation of officers, directors, &c., was by them. They, Sherman and Dean, had notice. The corporation was put into existence by them. They were the stockholders, and labored under no disability. Will a court of equity look at forms in total disregard of the substantial rights of parties? On the contrary, does not such a court always look at the real and undoubted merits of all controversies, unfettered by technical rules of law? Should this court determine that because they, Sherman and Dean, have made such an arrangement as entitles them to certificates of stock on account of this land, the law will protect them, great injustice would be done the complainant. So far as they are concerned, they do not come into this court with clean hands; and no principle of equity justifies an interposition in their favor.

"Independent of the reasons already suggested,  [**29]  the defendants have to encounter that which is, to me, an insurmountable objection to the dissolution of the injunction. The motion to dissolve is made upon bill, answers and testimony. The bill of complaint does not call upon the defendants to answer under oath; nor were the answers read as evidence in the case. Under such circumstances, I cannot look to the answers, with a view of giving them the least efficacy as evidence, even though they may be directly responsive to the bill, which is in conflict with the practice and rule anterior to the statute of this State, and to which I will refer. If this court is forbidden to look at the answers as evidence, how can it be known that there are stockholders in the Hoffman Steam Coal Company, other than Sherman and Dean? the testimony of Shoemaker being obviously wholly insufficient for the purpose. The Act of 1852, ch. 133, provides, that 'no answer of any defendant to any bill or petition to be hereafter filed in a court of equity in this State, shall be evidence against a complainant or complainants, unless by the bill or petition such answer shall be required to be made under the oath of the respondent or respondents; or unless, at the [**30]  hearing, the complainant or complainants shall read the answer as evidence; in which case it shall have the same effect, as to the party reading the same, as if it had been required to be made under oath.' According to the case of Winchester & Lemmon vs. Balt. & Susq. Railroad Co., if the bill does not require the answer of the defendants to be under oath, the answer cannot be considered as evidence against the complainant, and, under the circumstances, the bill of complaint must be assumed to be correct. Such being the law, how can this court judicially know that any parties are the owners of stock, except Sherman and Dean, and they holding it fraudulently, as averred in the bill? The answers, I am aware, state that innocent persons do hold stock, but who they are does not appear. But does not the Act of 1852 destroy the effect of the answers, and indeed is not such an averment or statement to be regarded as matter in evidence, and, to be available, necessary to be proved? It is believed that, by the recent case of Warren vs. Twiley, 10 Md. Rep., 46, a different construction has been given to that Act. But an examination has satisfied me that the Court of Appeals did not design to [**31]  impugn, in the least, the case to which I have adverted, but determines that the Act of 1852, in reference to the effect of answers as evidence, has not changed the practice as regarded the effect of an answer, when a cause at a final hearing is heard upon bill and answer. The case is not before me for final hearing. It is a motion to dissolve the injunction granted by this court. And whatever might be the effect of that motion, it still leaves the cause for a final hearing. All doubt, however, is removed from my mind by the case of Taggart vs. Boldin & Thayer, 10 Md. Rep., 113, where the point in question is determined. In that case the bill did not call for an answer under oath; and for that reason it was not evidence in the cause, it not having been read as such by the complainant--and the case was determined by the averments of the bill and the testimony--the court regarding the case of Warren vs. Twilley as establishing that such would be evidence only when the cause is set down for hearing on bill and answer only.

"The next question is, as to the omission of necessary averments in the bill. The bill alleges the facts 'upon information and belief,' and for this reason it [**32]  is insisted that the injunction should not have been granted, and should now be dissolved. I will not undertake to decide the question whether there exists in the bill and testimony sufficient to justify this court in the refusal to dissolve the injunction, as the complainant has made an application to amend the bill. Regarding the purchase as made by Sherman and Dean, from the facts now before me, as one that should be set aside, and that the complainant can so amend the bill as to obviate every objection on that account, the determination by me of the law, in that respect, becomes unimportant. The court, in the exercise of a sound discretion, ought to allow the amendment, in order to remove the difficulty. I do not feel myself unaided by authority in coming to this conclusion; as the rule is not, as stated in argument, that the case must rest on the propriety of granting the injunction, on the equity appearing in the original bill. Before the Act of 1852, ch. 133, 'if the answer denied all the material allegations of the bill, yet, if it discloses an equity of which the plaintiff may avail himself by amendment, the injunction will be continued.' Md. Ch. Prac., 87. 2 G. & J., 3.

"For [**33]  the reasons assigned in this opinion, I have decided that the complainant is entitled to relief, upon the bill and testimony now before me, having shown itself, prima facie, entitled to a decree. The property, the subject of the contract, should be protected against the wrongful acts of the defendants, pending the contest, and until that right is determined. Geiger vs. Green, 4 Gill, 473. If the defendants, owing to the relation they sustain to the complainant, have been guilty of fraud, in fact or by construction of law, and, for that reason, the deed to them should be vacated, I cannot readily conceive what injury will be inflicted upon them by the allowance of the amendment and the continuance of the injunction; for no one can doubt that, in the absence of process to prohibit the excavation of the coal, they would be responsible for all coal which might have been taken by them before the final decree of the court. And should the cause terminate in their favor, the law has provided all proper security, to indemnify them from all loss and damage. If, when an answer discloses an equity of which the complainant may avail himself by amendment, I can see no reason why such an amendment [**34]  should not be permitted, when it is seen by the bill and testimony they have equity. All this court should desire is, to know that, prima facie, there exists such a state of facts as justifies the exercise of the equitable jurisdiction of this court. If the complainant is entitled to the land, it should be protected. The excavation of coal ought to be prevented. That is the thing which constitutes its great value. And having shown, at this period of the cause, a right to the land, the defendants ought not to be permitted now to remove that which constitutes its real worth.

"It is also urged that the injury complained of is but a trespass or waste, and could not be prevented by an injunction. The general rule is well understood to be, 'that for mere acts of trespass, or for that which amounts to waste, the parties will be left to their remedy at law.' Storm vs Mann, 4 Johns. Ch. Rep., 21. Amelung vs. Seekamp, 9 G. & J., 468. However, such is not the case when a trespasser digs into and works a mine to the injury of the owner, because it operates a permanent injury to the property as a mine; in short, it is now granted in all cases of mining coal, ores, and working quarries, when [**35]  the party is a mere trespasser. 2 Story's Eq., sec. 929. Livingston vs. Livingston, 6 Johns. Ch. Rep., 498.

"From these views, and having determined to allow the amendment when such shall have been made, I will then overrule the motion to dissolve."

An amended bill was then filed so as to charge, positively, what had been averred in the original bill only upon information and belief, and, also, so as to introduce the deeds of the 27th of September and the 1st of October 1857, which had been set up as a defence in the answers, and praying that they may also be declared fraudulent and void, and the same relief granted as to them as is prayed in the original bill with reference to the deed of the 22nd of April 1856, and for general relief. To this amended bill, answers were filed by all the defendants, relying upon all the defences which had been pleaded in the answers to the original bill. The Hoffman Steam Coal Company again moved to dissolve the injunction, and asked leave to take additional testimony, which was taken, and exceptions were filed by it to the averments of the original and amended bills, chiefly upon the ground that neither of them contain any allegations, whatever,  [**36]  that the deed of the 1st of October 1857, was fraudulent and void; nor any averments which would entitle the complainant to set it aside. This motion to dissolve was again heard, and, on the 3rd of October 1859, the court passed an order continuing an injunction till final hearing or further order. The following is the opinion of the court, (PERRY, J.,) delivered upon the passage of this order:

"This case has already been decided by me, upon a motion by all the defendants, to dissolve the injunction. The opinion filed on the eighteenth day of May last, was upon the then existing facts. Since that time the complainant was permitted to amend its bill, by the averments or statement of circumstances, and making exhibits, which it deemed essential. To the bill thus amended, the defendants have answered, and the Hoffman Steam Coal Company, alone, has made a motion to dissolve the injunction; to sustain which, much testimony has been taken, and the cause has been argued; and I have been asked to grant the motion of the defendant; it being urged, that, so far as the Hoffman Steam Coal Company is concerned, it is not affected by those principles or rules of equity governing cases in which [**37]  a motion is made by all the defendants; that that company is an innocent purchaser, without notice of any claim or interest on the part of the complainant; that having acquired a title from Dean, without such notice, this court ought not to pass any decree impairing it.

"If Dean were cognizant of the fact that Sherman was a director of the Cumberland Coal and Iron Company, at the time of his purchase, it may be doubted whether such a circumstance would not invalidate the contract. He, participating with one who is chargeable, at least, with constructive fraud, should be subjected to the same fate as his companion. Sherman being in a predicament which forbids his holding a title in hostility to the complainant, I doubt much whether Dean does not occupy the same relation. The reasons and authorities to which reference was made in my former opinion, by which I determine that Sherman could not assert such title, have recently been sustained in the case of Cleveland vs. Rail Road Company, reported in the American Law Register, vol. 7, No. 9, in which the doctrine is announced: 'That directors of an incorporated company are trustees of the corporation. They are the vendors, dealing [**38]  for the interest of the corporation, in making sale--the representatives of the company. Such persons cannot be permitted to purchase, when they have a duty to perform inconsistent with the character of a purchaser. That deeds, made by a company, in which the vendee is a director, could be set aside, by proceedings in equity, at the instance of the corporation.' The views I then entertained, in respect to that question, are still unchanged. It is not, therefore, necessary for me to reiterate the arguments to sustain them. They are found in the previous opinion. It has been, however, suggested, that in Maryland, a director of a corporation is not a trustee in such sense as to prevent his purchase of stock, or other property of the corporation; that thousands of dollars of bank stock are held by such title, and no one has ever supposed it to be defective; and that from an examination of authorities, it is, with confidence, asserted, that the principle governing all of them, is, that the same natural person can be both vendor and vendee, such as a trustee for sale; and in such case, his cestui que trust can have the sale set aside; so is a sale by guardian, or executor, who buys for himself;  [**39]  that such can be avoided, as a matter of right, upon the application of a person who stands in the position of beneficial owner of the property; that a director is not a trustee; he has not the legal title, nor, in contemplation of law, has he any influence upon the action of his co-directors, who are, each of them, presumed to act upon his own judgment; that a corporation is a legal entity, it acts through natural persons; but all its acts are corporate acts, and not those of individuals.

"The legal ability and earnestness with which these views have been pressed upon me, is my reason for their quotation. I have no doubt, much bank stock is held under the circumstances mentioned; but I hazard little in saying that, in most instances, that which may have been, originally, a doubtful title, has long since ripened into unquestionable right, by acts of confirmation or long acquiescence; and that I cannot but esteem the law to be, that stockholders or others, interested in such banks, might institute proceedings to set aside a sale of stock made by directors to themselves, if done at a proper time; and that I am not aware of a decision in this State, impugning this view of the law.  [**40]  I would certainly regret to know such to be the case, especially in regard to the sale of real estate, as no one can fail to see that the temptation is so great that directors might, too readily, yield to its influence, particularly when they are not largely concerned as stockholders. The wisdom and policy of the law are too plainly seen by me, to justify a departure from that rule. Indeed, I can see in it much that protects and saves innocent persons. I regard it as one of the rules of equity, replete with good results. It is a barrier in the way of designing directors, 'delivering them from temptation,' and guards, in some degree, the rights of those whose interests they should hold sacred. Nor do I think it necessary to esteem the director a trustee. The authorities to which I have referred, in my former opinion, show that this doctrine applies to agents, attorneys and all persons acting for others. I will add to the authorities heretofore adduced, Dart on Vendors, 15, 16, 21.

"It is also urged, that one director has not, in contemplation of law, any influence upon the action of his co-directors. But does not the law contemplate the exercise of the sound, impartial judgment,  [**41]  opinion and views of each of that body, for the benefit of the stockholders? Can he place himself, with propriety, in a position in which he cannot advise or aid his companions? He should not be associated with directors, when, for purposes of personal aggrandizement, he can observe a studied silence, in respect to the affairs of the company. The corporation may be esteemed 'a legal entity;' but I know of no mode of giving them notice, except through natural persons. The directors and officers are the parties through whom the corporation is to be affected.

"That question which I esteem of the greatest importance in the cause, is, in regard to the effect of the defence by the Hoffman Steam Coal Company, that it is a bona fide purchaser without notice. As the decision of that question, with the complainant, may be regarded as a final determination of the motion to dissolve the injunction, I have given it much consideration. In the argument, many authorities have been adduced to show, that to support the plea of a bona fide purchaser without notice, it must be shown, not only that the party had no notice of the complainant's rights, before the purchase, but that the purchase money [**42]  was actually paid before such notice, and that, though the purchase money was secured, yet if, in fact, it was not paid before notice, it will not be sufficient to maintain the plea; that when it can be seen that the party cannot be injured, but the court can protect an innocent purchaser, who has not paid the entire sum or consideration for the land, the court will not esteem such a plea as sufficient to prevent a decree in behalf of a party who asks for the same. I do not hesitate to regard the law to be, 'that to enable a party to avail himself of such a defence, it is important and necessary for him to show an actual payment of the whole purchase money.' It must not be that security or an obligation for payment was given. 'The rule is, that such a defence, resting on the grounds of purchase without notice, must be full and specific, not resting on general terms.' It must be shown that the consideration of the purchase was valuable, and that actual payment was made before notice, and to whom so made. This is the law, as maintained in England and in this country. 2 Leading Cases in Equity, 77. 7 Johns. Ch. Rep., 65, Jewett vs. Palmer. 2 Daniells' Ch. Practice, 776. 3 Sugden on Vendors,  [**43]  312. It is essential, not only that a conveyance should be made, but that the whole purchase money should be paid; and relief will be denied if notice be given, while the contract is incomplete, in that respect. Price & Bevans vs. McDonald, et al., 1 Md. Rep., 422. Wormley vs. Wormley, 8 Wheat., 421. 3 Sugden on Vendors, 312. Dart on Vendors, 389. If this were a controversy between the complainant and Sherman and Dean, as defendants, and no conveyance had been made by them, by which a title was communicated to the Hoffman Steam Coal Company, I suppose no question could be made in regard to their rights. They could not claim to be bona fide purchasers. They have not paid the whole purchase money. They paid a part, and have agreed to pay the interest on the bonds of the company, and when due, the principal. The rule of law, which would require them to show a payment of the whole purchase money, to avail themselves of such a defence, is too well established by the authorities, to which I have referred, to be now questioned. I regard it also as well settled, that a purchase, by a party, with notice of the claim or rights of a third person, equally binds such vendee; that if the Hoffman [**44]  Steam Coal Company had knowledge that their grantors had not paid the whole purchase money, they are equally bound, and will be subject to the same equities; that a purchaser, with notice of a right in another, is, in equity, liable to the same extent, and in the same manner, as the person from whom he made the purchase. For instance, if a person contracts to sell an estate, or to grant leases thereof, a purchaser, with notice of such contracts, is liable to the same equity, stands in the same place, and is bound to do that which the vendor, whom he represents, would be bound to do by decree. 2 Leading Cases in Equity, White & Tudor, 130.

"The law being such, what is the condition of the Hoffman Steam Coal Company? The deed of Sherman and Dean to that corporation, refers to the deed from the Cumberland Coal and Iron Company; in which last instrument the consideration is stated to be, the payment of twenty-eight thousand dollars, and the sum of one hundred and twelve thousand dollars, to be paid by Sherman and Dean, by paying and satisfying one hundred and twelve bonds, for one thousand dollars each, on the first day of January 1864, and interest, semi-annually, on the first day [**45]  of July and January, in each year until that period. The deed from Sherman and Dean to the Hoffman Steam Coal Company, also contains an agreement, that the company will pay the interest on the one hundred and twelve bonds, as it becomes due, and the principal of said bonds, in exoneration of all liability of said Sherman and Dean for payment of the same. Nothing is better established than that a purchaser will have constructive notice of everything which appears in any part of the deeds or instruments, which prove and constitute the title purchased, and is of such a nature that, if brought home to his knowledge, it would amount to actual notice; for the right of a purchaser can, in no case, go beyond his own title, and whatever appears on the face of the title papers, forms an integral part of the title itself. Such notice, therefore, is of the most conclusive nature, and is not susceptible of being explained away or refuted. And when, therefore, its existence appears from the documents or papers accompanying the answer, it will overrule a positive denial of notice in the answer itself. So a general recital in a deed, that there were mortgages on the estate, was held to affect parties [**46]  claiming under the deeds with notice. Neale vs. Hagthorp, 3 Bland, 551, 586, and 1 G. & J., 270. 2 Leading Cases in Equity, 133, 134, 153. The deed to the Hoffman Steam Coal Company, as before stated, making such a reference to that from the Cumberland Coal and Iron Company to Sherman and Dean, its grantors, no one can doubt, in the least, that the most complete and ample notice has been given of such facts, as show that there still remain unpaid, one hundred and twelve bonds, each for one thousand dollars; and the law being, as before shown, that if the purchase money is not paid, a notice before that period prevents a vendee from resorting, successfully, to the plea of a bona fide purchaser without notice. The Hoffman Steam Coal Company cannot, upon that ground, ask the interposition of the court to dissolve the injunction.

"I do not deem it necessary, when deciding the motion to dissolve the injunction, to determine the various exceptions filed on the part of the defendant on the 21st of July last, as the practice is to continue the injunction, 'if the answer discloses an equity, of which the complainant may avail himself by amendment.' Maryland Chancery Practice, 87. 'And [**47]  the absence or want of a party as defendant is generally no ground upon which to claim a dissolution of an injunction. A necessary party may be supplied before final hearing; and it is the constant aim of courts of equity to do complete justice, by deciding upon and settling the rights of all parties interested in the subject-matter of the suit. But this may be obtained by having the necessary parties before the court, at any time before the final decree is passed.' Lucas vs. McBlair, 12 G. & J., 2. I can see no reason why an objection on account of the want of necessary parties cannot be sustained, with as much propriety as the exceptions made in this cause. Conceding the exceptions to be good, (which I do not determine,) the complainant can amend before final hearing in this case. There is no reason apparent to me, why the amendment should not be allowed as well in the one case as in the other. Indeed I find the law to be, that courts of equity are not debarred, by any inflexible rule, from awarding or continuing an injunction, even in the face of a positive denial, in the answer, of the equity of the bill; and may take any course necessary for the remedy or preventive of irreparable [**48]  injury to the interest of a suitor, should the right finally prove to be with him, although denied, in limine, on the other side. The main distinctions which seem supported by authorities, or, at least, by the weight of authorities, appear to be, that in cases of special injunction, if the whole merits are satisfactorily denied by the answer, the injunction is undeniably dissolved. But there are exceptions to the doctrine, and these are fairly resolvable into the principle of irreparable mischief, such as cases of asserted waste, &c. In cases of this sort, the court will look to the whole circumstances, and will continue or dissolve the injunction in the exercise of a sound discretion; 'and a doubt, in point of law, will furnish a sufficient ground against dissolving an injunction.' 2 Leading Cases in Equity, 111, 112, 113. The value of the property in controversy consists mainly in its coal, and I could not, in the exercise of a sound discretion, give the defendant a right to excavate and sell it. The interest to be paid on the bonds is so small a sum, compared to the value of the coal, which may be taken from the mines and land, and the property, in my opinion, might be so much impaired [**49]  in value, by the license, as to inflict ultimate injury upon the complainant.

"From the views above expressed, it can readily be seen, that there is nothing remaining for me to do but to pass a decree, overruling the motion made by the Hoffman Steam Coal Company, to dissolve the injunction in this case."

The Hoffman Steam Coal Company then appealed from the two orders, of the 25th of May and the 3rd of October 1859, and also from the order granting the injunction.  

DISPOSITION:
Orders affirmed.  

HEADNOTES:

A director in a corporation at the time a sale of part of its property was contemplated and made, and who actively participated in all the measures tending to its completion, and had full knowledge of all the circumstances attending its progress, is not competent to become a purchaser of such property, and the sale to him cannot be upheld if resisted by the corporation.

A party joining in a purchase from a corporation, with knowledge of the fact that his co-purchaser was a director in the corporation, is affected with whatever of legal disability belonged to the director by reason of that relation.

A director having purchased lands from a corporation, united with others in forming a new corporation, he subscribing for almost all of the stock therein, and becoming one of its officers and directors, and on the next day, in pursuance of one entire plan, conveyed the same lands to the new company in payment of his subscription for such stock. HELD:

That the new company is affected with notice of the circumstances impairing the title of the party so conveying the lands to it, and cannot claim to be a bona fide purchaser without notice.

Trustees cannot purchase at their own sales, either directly or indirectly, and if they do, such purchases will be set aside on the proper and reasonable application of the parties interested.

The same doctrine applies to purchases by persons acting in any fiduciary capacity, which imposes on them the obligation of obtaining the best terms for the vendor, or which has enabled them to acquire a knowledge of the property; a director in a corporation holds such a relation to its stockholders.

To render the ratification of such a sale effective and conclusive, the principal must, at the time of the ratification, be fully aware of every material fact, and his act of ratification be an independent substantive act, founded on complete information, and he must not only be aware of the facts, but apprized of the law as to how these facts would be dealt with if brought before a court of equity.

Where a purchaser, with notice from a trustee, conveys, for a valuable consideration, to another person who has no notice of the trust, the estate will not be affected with the trust in the hands of the second purchaser. 

COUNSEL:
Wm. Schley, for the appellant:

1st. The complainant had undoubted legal capacity to enter into the transportation contract, and sell and convey its lands. It had the same power to sell its lands as any other owner of real estate, and its ability to make the transportation contract, if any express grant of power was necessary, is clearly conferred by secs. 5 and 6 of the Act of 1852, ch. 93. 1 Ves. & Beames, 226, 244, Mayor &c. of Colchester vs. Lowten. The fact that Sherman was a director of the complainant, at the time of the transaction, did not render him incompetent to enter into this contract, or to purchase the lands and receive a conveyance therefor. Angell & Ames on Corp., 205,  [**50]  206, and the various cases there cited. In the absence, therefore, of fraud in fact, (of which there is no proof,) the legal title in the land, and legal rights under the contract, became completely vested at law in both Sherman and Dean. 76 Eng. C. L. Rep., 200, Foster, et al., vs. Oxford Railway Co. This is also conceded by Lord Lyndhurst and Lord Brougham in 1 Macqueen, 474, 482. In equity, (in the absence of fraud in fact,) dealings between a trustee and cestui que trust, are not regarded as void, ab initio, but merely as voidable at the election of the cestui que trust: binding, nevertheless, on the trustee, unless avoided by the cestui que trust; and capable of being rendered unavoidable, even by the cestui que trust, by confirmation, by ratification, by estoppel, and even by acquiescence. 3 G. & J., 163, Richardson vs. Jones. 4 G. & J., 379, Williams vs. Marshall. 12 Md. Rep., 417, Keighler vs. Savage Manf. Co. 5 H. & J., 147, Davis vs. Simpson. 9 Ves., 234, 246, Coles vs. Trecothick. 2 Bro. Ch. Cases, 200, Fox vs. Mackreth. 12 Ves, 372, Morse vs. Royal. 5 Ves., 678, Campbell vs. Walker, and the various cases there cited in note (a.) Upon the proof in this cause, even as between [**51]  the complainant and Sherman and Dean, the former had no equity, when this bill was filed, to avoid the contract and deed, either wholly or in part, on the ground that Sherman was a director of the complainant when the transaction took place. The parties dealt at arms length, fairly, honestly and openly. The transaction, in its origin, was unimpeachable. If, however, it could have been avoided upon election, promptly made and notified, yet the right to do so was abandoned by the various acts and conduct of the complainant in relation to the transaction. 88 Eng. C. L. Rep., 341, Reuter vs. Electric Telegraph Co. The same reason may be applied, as well to the case between the complainant and Sherman, as between the complainant and Dean; but even if the complainant had an equity, when the bill was filed, as against Sherman, clearly as it respects Dean it had none. Sherman and Dean had separate rights and separate interests. Sherman was purchaser of five, and Dean of three, undivided parts of the land, the whole into eight parts to be divided; and they were interested in the same proportion in the contract of transportation. Dean never was a director, and never knew, until after this bill [**52]  was filed, that Sherman ever had been a director of the complainant. Sherman and Dean were tenants in common, and had several estates. Crabbe on Real Property, 2316. Allnutt on Partition, 129. If, therefore, the views already presented be well taken, then both Sherman and Dean, when they sold, conveyed and assigned to the appellant, had not merely a good marketable title, but a clear and perfect title both at law and in equity, and upon this hypothesis, the title of the appellant would be perfect in its entirety. But at all events, the appellant would have a perfect title to, at least, three undivided eighth parts, independently of all other considerations in support of its title. It is clear that if the appellant had only the good title of Dean, still it was rightfully in possession of the whole, as the shares were undivided. The injunction, therefore, in this aspect of the case, was too broad. Unless actual ouster of another tenant in common be averred and proved, there is no trespass and no wrong, and no ground for injunction. 2 Arch. N. P., 313. 1 Salk., 192, pl. 4. 1 East., 568, Peaceable vs. Read, et al. 2 H. & McH., 254, Lloyd vs. Gordon. The pretence that Dean was a mere representative [**53]  man was intended to obviate this point. But it is denied on oath. The onus probandi is on the complainant. All the presumptions are with Dean. Best on Presumptions, 59, 69.

2nd. But the appellant was a bona fide purchaser from Sherman and Dean, without notice of any equity in the part of the complainant. The three recorded deeds were notice of a good title in Sherman and Dean. They were in actual possession as owners, exercising dominion as such, engaged in excavating coal and sending it to market. The complainant had done no act to declare its election to avoid the contract of transportation, or to disaffirm the sale of the land. On the contrary, the complainant, in accordance with the contract, was carrying over its railroad for Sherman and Dean, the coal by them excavated, and was receiving payment for so doing, under the contract. By the recorded title papers, Sherman and Dean were the actual legal owners. By peaceable possession they were ostensibly undisputed owners. By its acts and conduct, the complainant held them out as the real and bona fide owners. 5 Ves., 680, Campbell vs. Walker. 12 Ves., 372, Morse vs. Royal, and cases in notes. 4 G. & J., 375, Williams vs. Marshall.  [**54]  12 Md. Rep., 383, Keighler, et al., vs. Savage Manf. Co., and cases there cited. The pretence, that because Sherman took part in the organization of the appellant and was constituted one of its directors, and, therefore, the appellant is to be charged with notice, as a corporation, of every fact within the knowledge of Sherman, is not supported by the established rules of law. It is very clear that Sherman and Dean, when they sold the land and their interests under the transportation contract, for a certain number of shares of stock, were acting for themselves, and not for the appellant. If the rule be of universal application, that the knowledge or fraud of a director shall be considered as the knowledge or fraud of the corporation, how can the complainant rely on the alleged fraud of Sherman, when dealing with it for this property, as he was then a director of the complainant. The true rule is that, in order to affect a corporation with the knowledge of a director, he must be acting, at the time, in the business of the corporation, and in his capacity as a director. The rule has no application where he is dealing on his own account, and not for but with the corporation. Angell &  [**55]  Ames on Corp., 299, 301. Story on Agency, sec. 140, b. 3 Md. Ch. Dec., 381, 387, United States Ins. Co. vs. Shriver. 4 Md. Rep., 239, Winchester vs. Balt. & Susq. Railroad Co. Hill on Trustees, 510, 507, note 1. 28 Eng. Law & Eq. Rep., 77, Barnhart vs. Greenshields. Parson's Merc. Law, 150, and cases there cited. Nor is the pretence of any value, that the counsel who prepared the articles of incorporation had notice of the relation which Sherman sustained to the complainant. He was acting on behalf of Sherman. In fact he never became counsel for the appellant till after this suit was brought. 13 Ves., 120, Hiern vs. Mills, and cases there cited. The learned judge who heard the case below, in his opinion, lays down as a rule of law applicable to this case, that the appellant is not entitled to the protection of the plea of being a bona fide purchaser without notice, because, as he supposes, the whole consideration of the purchase had not been paid. But, it is respectfully insisted, he was wholly mistaken as to the fact. As between the parties to the transaction, that is to say, as between Sherman and Dean as vendors and the appellant as purchaser, the whole consideration was fully paid.  [**56]  The land was sold, cum onere, precisely as it was owned by Sherman and Dean, viz., subject to the payment of the 112 bonds and the interest thereon; and for the land thus subject to a lien, and for the assignment of the transportation contract, a stipulated number of shares of stock were to be given, and the full number of shares are accordingly given. As between the parties the transaction was completely executed. Sherman and Dean, by their conveyance and assignment, parted with all their estate and interest in the land and in the contract, and received all they were entitled to receive from the appellant. If the doctrine, as supposed by the learned judge, was applicable to a case of this character, then it would not be competent for a party to rely on this defence, where the subject-matter was a particular estate, or was any interest less than an unincumbered fee-simple. It would exclude property subject to a ground-rent, rent-charge, or any incumbrance whatever.

3rd. But even if, on any ground that has been suggested, the title of the appellant in its origin was not unimpeachable by the complainant, yet the conduct of the complainant subsequently must effectually debar it from [**57]  successfully impugning the title of the appellant, whatever its rights may be as between it and Sherman and Dean, or either of them. The sale by Sherman and Dean to the appellant was completed on the 20th of August 1858. This bill was not filed until the 6th of December 1858. In the meantime, as shown in the evidence, the complainant recognized the appellant as owner of the land and as assignee of the contract--transported its coal, excavated from the mines on this land, and received payment under the contract of transportation; and during the same period numerous transfers of stock were made. It would be a practical fraud, not merely on the appellant in its corporate capacity, but upon bona fide holders of its stock, if the complainant, after acquiescing in the sale to Sherman and Dean for more than two years and a half, were permitted to elect to consider the same as void, even if as between it and Sherman and Dean, it could, at some former period have honestly made such election. By non-action, by laches, by acquiescence, by active proceedings, the complainant authorized all the world to suppose that it recognized and considered the deeds and contract as valid. Zabriskie vs. Cleveland,  [**58]  Columbus and Cincinnati Rail Road Co., 23 How., 381.

4th. If the preceding views, or any one of them that will protect the title of the appellant, can be maintained, then, upon the pleadings in the cause, and upon the evidence now before the court, it follows as a necessary consequence that the injunction, as respects the appellant, ought to be dissolved. In a case like this, the injunction is merely ancillary to, and is strictly dependent upon, the principal relief which is sought by the bill. 4 Gill, 472, Geiger vs. Green. 4 Md. Ch. Dec., 57, Walker vs. House.

In addition to the preceding points, which relate to the merits of the controversy between the parties to this appeal, it is further insisted:

1st. The bill upon its face showed that the appellant was in actual possession of the land, claiming derivatively from the complainant itself, by a paper title prima facie good. There are no charges of insolvency of the defendants, no allegations of irreparable loss, nor is any state of case shown from which irreparable injury would naturally or necessarily result, and all material averments which could be relied on in support of the injunction, are stated on the basis [**59]  of information and belief. It was not, therefore, a case for an interlocutory injunction. 6 Ves., 51, Pillsworth vs. Hopton. 8 Ves., 89, Smith vs. Collyer, and cases there cited.

2nd. But even if the injunction was properly granted, on the filing of the bill, yet upon the motion to dissolve, after the answers were filed, and upon the proof then taken, the injunction ought not to have been continued, and the order of the 25th of May 1859, was erroneous. By the Act of 1853, ch. 344, sec. 2, the answers of the defendants being under oath, were of the same force and effect, as evidence, as the bill. Bouldin vs. Mayor & C. C. of Balt., 15 Md. Rep., 18. Gelston vs. Rullman, 15 Md. Rep., 260. And it is insisted that the proof then taken did not sustain the averments of the bill, but actually supported the answers of the defendants. 7 Md. Rep., 537, Feigley vs. Feigley. And the further evidence taken after the answers to the amended bill, greatly strengthened the case of the appellant, and the order of the 3rd of October 1859, was more strikingly erroneous. On the merits, the injunction ought to be dissolved. But even if this position, in its whole extent, cannot be maintained, yet it [**60]  is certainly well taken as to the defendant Dean, and as to the appellant to the extent of its title as derived from Dean.

3rd. The original bill did not notice the deeds of the 24th of September and the 1st of October 1857, and although the amended bill alleges the factum of these deeds respectively, and prays that the same may be declared fraudulent and void, yet there are no allegations in the amended bill impeaching these deeds, or either of them. Exceptions were taken to both the original and amended bills in this respect. Now the conveyance to the appellant by Sherman and Dean is expressly grounded on their title under the deed of the 1st of October 1857. It is very manifest that that deed might be good and valid, and unimpeachable by the complainant, even if the deed of the 22nd of April 1855, could have been avoided.

Geo. A. Thruston and Geo. W. Dobbin, for the appellee:

1st. A trustee cannot become a purchaser, either directly or through the agency of another, of property confided to him for sale, and under the application of this rule, Sherman being a director of the appellee and chairman of the committee of six, appointed, on his own motion, to ascertain what [**61]  land could be advantageously sold, and of the subcommittee of three, who actually visited the land to make such ascertainment, and reported thereon, was incompetent to purchase this land, and the sale to him is, therefore, void. 4 H. & McH., 11, State vs. Reed. 4 H. & J., 192, Singstack vs. Harding. 5 H. & J., 148, Davis vs. Simpson. 3 G. & J., 163, Richardson vs. Jones. 4 G. & J., 376, Williams vs. Marshall. 3 H. & J., 427, Dorsey vs. Dorsey. 7 G. & J., 1, Callis vs. Ridout. 12 Md. Rep., 416, Keighler, et al., vs. Savage Manf. Co.

The cases in respect to purchases by the trustee of the trust estate, or contracts with him affecting its interest, naturally divide themselves into two general classes:

1st. Cases in which a trustee buys or contracts with himself, or several trustees of which he is one, or a board of trustees of which he is one.

2nd. Cases in which a trustee buys or contracts with his cestui que trust, who is sui juris, and competent to deal independently of the trustee in respect to the trust estate.

In the first class of cases the purchase or contract is voidable at the option of the cestui que trust, without reference to the fairness or unfairness [**62]  of the purchase or contract. The disqualification of the party purchasing or contracting, is a conclusion of law and is absolute. The right of the cestui que trust to come in as of course, and set aside a sale made by a trustee to himself, though made at public auction, bona fide, for a fair price and without showing actual injury, is fully considered and affirmed by this court, in Mason vs. Martin & Kemp, 4 Md. Rep., 135. See, also, 2 Johns. Ch. Rep., 252, Davoue vs. Fanning. 4 How., 503, Michoud vs. Girod, and notes by English and American editors to Fox vs. Mackreth in White's Eq. Cases; 65 Law Lib., 126, et seq., where a large collection of the cases on the general subject will be found.

In the second class of cases, the presumption of law is against the validity of the transaction, with degrees of strength varying according to the circumstances, but the trustee is permitted to show affirmatively the fairness of the transaction, and to establish the other conditions necessary to its validity. 65 Law Lib., 146, and cases cited in notes. 6 Ves., 627, Lacey, ex-parte.

So great is the jealousy with which the dealings of a trustee with his cestui que trust are regarded by [**63]  courts of equity, so strong is the presumption of fraud which has been applied to such cases, that the distinction here drawn is not always recognized by the elementary writers, (Story's Eq., sec. 311,) or by the judges, (2 Hare, 60, Edwards vs. Meyrick,) but the principle of positive incapacity is applied to this second class of cases as well as to the first. See, also, 9 Ves., 247, Coles vs. Trecothick. Ibid., 296, Hatch vs. Hatch. 12 Ves., 372, Morse vs. Royal.

The rule, however applicable to the second class of cases, throws upon the trustee the onus of rebutting the legal presumption against the transaction, and of proving affirmatively the conditions necessary to give it validity. If no such proof is established, courts of equity will treat the case as one of constructive fraud. Story's Eq., sec., 311. 10 Ves., 427, Randall vs. Errington. 3 Mylne, 113, Hunter vs. Atkins. 2 Hare, 60, 68, Edwards vs. Meyrick. 65 Law Lib., 146. These conditions are:

1st. That the cestui que trust knew that he was dealing with his trustee, and had agreed to discharge him from that relation and capacity. 10 Ves., 426, Randall vs. Errington. Story's Eq., sec. 316. 65 Law Lib., 130. 6 Ves.  [**64]  , 627, Lacey, ex-parte. 9 Ves., 234, Coles vs. Trecothick.

2nd. That the trustee had communicated all the information which he possessed, or could acquire, to the cestui que trust. 8 Ves., 348, Ex-parte James. 9 Pick., 234, Farnam vs. Brooks. 14 Ves., 300, Huguenin vs. Baseley. 6 Ves., 280, Gibson vs. Jeyes. 15 Ves., 40, Harris vs. Tremenheere. 11 Paige, 541, Howell vs. Ransom. 65 Law Lib., 137, 146. Story's Eq., sec. 316, a. 3 Swanst., 73, Walker vs. Symonds.

3rd. That the trustee derived no advantage whatever from his situation as trustee, or from any knowledge acquired in that character. 3 Mylne & Keene, 113, Hunter vs. Atkins. 65 Law Lib., 146, 371.

4th. That the trustee had advised his cestui que trust in the same manner as if the dealing of the latter had been with a third party. 65 Law Lib., 133, 146. 6 Ves., 278. 3 Mylne & Keene, 113.

5th. That the price was fair, the consideration adequate, and the whole bargain just and reasonable. 65 Law Lib., 146. 6 Ves., 280. 16 Ves., 512, Peacock vs. Evans. 2 Hare, 68. 4 Dessausure, 652, Butler, et al., vs. Haskell. Story's Eq., sec. 321.

The principle has been held to apply to trustees, agents, executors, administrators,  [**65]  assignees for creditors, sheriffs, auctioneers, agents for sale, cashiers of banks, directors of corporations, and to all persons who have any general duty, or special duty, in respect to the transaction. 65 Law Lib., 137. 3 Beav., 49, Greenlaw vs. King. 9 Paige, 241, Van Epps vs. Van Epps. Ibid., 663, Torrey vs. Bank of Orleans. 1 Sandf. Ch. Rep., 225, Dickinson & wife vs. Codwise. Ibid., 257, Cram vs. Mitchell. 4 H. & J., 332, Smith vs. Baldwin. 7 G. & J., 1, Callis vs. Ridout. Nor does it make any difference though the purchase were at public auction, or even under the direction of a master. 65 Law Lib., 128. The principle applies equally where the trustee is not the sole purchaser, but is merely interested with others, (3 Dana, 266, Mitchum vs. Mitchum,) for in either case, his interest, which is to buy cheap, is in conflict with his duty, which is to get the best price for his cestui que trust, and the policy of the law which establishes the rule is equally violated; see, 1 Macqueen, 473, Blaikie vs. Aberdeen Railway Co., a case strongly relied on by the appellees. The rule has also been applied equally where the purchaser was one of several trustees who made the sale. Story on [**66]  Agency, sec. 211. 3 Brown's Ch. Rep., 483, Hall vs. Noyes. 3 Ves., 740, Whichcote vs. Lawrence. 3 Sandf. Ch. Rep., 592, Ward vs. Smith. 1 Paige, 393, Case vs. Obeel. 65 Law Lib., 141. 1 H. & G., 11, Ringgold vs. Ringgold. 7 G. & J., 1, Callis vs. Ridout.

The directors of a corporation are agents of the company, and, as such, have duties to discharge of a fiduciary nature towards their principal, and are subject to the obligations and disabilities incident to that relation. 3 Paige, 331, Robinson vs. Smith. Angell & Ames on Corp., (Ed. of 1858,) sec. 312, page 365, and cases there cited. 3 La. Rep., 568, Percey vs. Millandon. 1 Rhode Island Rep., 321, Hodges vs. New England Screw Co. 1 Craig & Phillips, 1 Atty. General vs. Wilson. Redfield on Railways, 494. 1 Younge & Coll., 325, Benson vs. Heathorn. 16 Beav., 485, York & North Midland Railway Co. vs. Hudson.

A director purchasing of, or contracting with the board of which he is a member, falls within the first class of cases above mentioned; he is an agent or trustee dealing with several agents or trustees, of whom he is one; he is under a positive legal incapacity so to deal with any binding effect upon the company; he can [**67]  so buy or contract only subject to the right of the company, at its option, to disaffirm the contract and have the sale set aside without reference to the fairness or unfairness of the transaction. The relation of the director to the stockholder is the same as that of the agent to his principal, the trustee to his cestui que trust, and out of the identity of these relations springs the same duties, the same dangers, and the same policy of the law. The number of the directors or trustees do not give such security as to justify an exception to the rule. But the true answer to this suggestion as to numbers, is, that every director and every trustee owes the entire duty belonging to that character. Each director is bound to give to his co-directors, and through them to the company, the full benefit of all the knowledge and skill which he can bring to bear upon the subject; to advise and assist according to the best of his ability. The company contracts for this service, not from a part, but from all the directors, and they contract to render it. If any one of them, while this relation continues, shifts his position from a protector to an adversary, it is as clearly a violation of his duty [**68]  and of the rights of the company as if he were sole trustee. Experience shows that there is in practice, at least, as much danger of abuse and wrongs by directors towards the stockholders, as in any other class of trusts, while the vast amount of property involved in the administration of these great corporation trusts, and the large number of individuals interested in them as stockholders, makes the application of the settled principles of equity to these cases, a matter of great public importance and necessity, and there is no reason, whatever, nor any safety in relaxing, in respect to them, the rules which have become established in the courts as maxims of public policy. 1 Macqueen, 471. 3 Ves., 751, Whichcote vs. Lawrence.

The case of an agent for sale buying the trust estate is regarded with especial jealousy, and as calling for a very stringent application of the rule. The foundation of this disposition is the opportunity he has of acquiring information which he may use for his own benefit, and the difficulty of ascertaining whether he has made the necessary disclosures. 65 Law Lib., 137, 128, 141. Story on Agency, sec. 211. Ross on Commercial Law, 101, 9 Law Lib., 213.  [**69]  Dunlap's Paley's Agency, 33.

As to confirmation of actual or constructive frauds, or of acts of persons in confidential relations: the rules of law, applicable to such cases, are much more strict than in the ordinary dealings between independent and equal parties, where there is a merely technical defect of power, or where it is the policy of the law to uphold the transaction. In all dealings between persons in confidential relations, or having just emerged from them, the policy of the law is to look with great suspicion on the transaction. In the classification of the books, such transactions, however innocent, are called constructive frauds. For a general and succinct statement of the conditions necessary to make a confirmation valid, see Lewin on Trusts, 390, also Ed. of 1857 of same book, page 778.

1st. The onus of proving all the conditions necessary to make a valid confirmation, is upon the party claiming its benefit. Hill on Trustees, 827. 2 Mylne & Keen, 232 Bennet vs. Colley.

2nd. The confirmation must have been given by a party competent to make a valid act of confirmation, not by a person not sui juris, or a minor, &c. Lewin on Trusts, 390. If the confirmation [**70]  be by a body of the stockholders, it must be shown that those who united in the act were competent to bind the others. Is not the assent of all required in such a case? See, as to creditors, 2 Johns. Ch. Rep., 264, Davoue vs. Fanning. Ex-parte James, 8 Ves., 337, and Lewin on Trusts, 391, as to a class of persons and laches as applicable to them. Should not specific and definite notice that the matter was to be acted on, be required to bind a minority in respect to a transaction so much out of the ordinary course of business, and with a person in a situation of trust and confidence? Does not the duty of disclosure require that a trustee, participating in calling a meeting at which he intends to seek a ratification of such a transaction, should give express notice to the stockholders that the matter was to be acted on? Would any thing less than such notice be uberrima fides? It is the better opinion, that even the common law rule, in cases where the charter is silent, requires, that if the corporation is composed of a definite number, a majority of all the stockholders is necessary to form a quorum. Angell & Ames on Corp., (Ed. of 1858,) sec. 501. But in the present case the charter [**71]  is not silent. It expressly requires (Act of 1840, ch. 214, sec. 5) that for any purpose, except the election of directors, a quorum shall consist of the owners of a majority of the stock, in person, or represented by proxy.

3rd. The act of confirmation must be deliberate, plain and distinct, (12 Ves., 337, Morse vs. Royal,) with knowledge that it will have that effect, (2 Sch. & Lef., 474, Murray vs. Palmer,) and with intent that it should have that effect. Beatty, 413, Molony vs. L'Estrange.

4th. The confirmation must not have been made in pursuance of the original transaction, (18 Ves., 125, Wood vs. Downes,) or under the influence of that transaction, (1 Ves., Jr., 215, Crowe vs. Ballard,) or of the same circumstances which produced that transaction, (18 Ves., 125; 1 Ball & Beatty, 338, Roche vs. O'Brien; 17 Ves., 25, Gowland vs. De Faria,) otherwise it will not be a confirmation but merely a continuation of the original fraud. Lewin on Trusts, 391. 2 Ball & Beatty, 317, Dunbar vs. Tredennick.

5th. The party giving the confirmation must have done so after having full knowledge of his legal rights, of his power to disaffirm the former transactions, and to be relieved [**72]  therefrom on application to a court of equity. Lewin on Trusts, 390. Hill on Trustees, 525. Story's Eq., sec. 345. 1 Russ. & Mylne, 425, Cockerell vs. Cholmeley. 1 Hoff. Rep., 280, Fish vs. Miller. 2 Ball & Beatty, 317. 2 Sch. & Lef., 474. 2 Mylne & Keene, 242, Bennet vs. Colley. 1 Ves., Jr., (Sumner's Ed.,) 220, and notes. 2 Dev. Ch. Rep., 195, Boyd vs. Hawkins.

6th. The party giving the confirmation must have done so after having full knowledge of all the material facts of the case. 1 Hoff. Rep., 280. 9 Pick., 234, Farnam vs. Brooks. 1 Simmons, 89, Austwick vs. Maddeford. Lewin on Trusts, 390, and cases there cited. Hill on Trustees, 525, 527. 65 Law Lib., 165. 2 Sch. & Lef., 474. 2 Dev. Ch. Rep., 195. 1 Russ. & Mylne, 425. 2 Gill, 170, Bell vs. Webb & Mong.

When a trustee seeks from his cestui que trust a confirmation, the same principles apply as in any other dealing between such parties, and all the rules heretofore stated become applicable to the attempted confirmation; all the conditions in respect to disclosure, to take advantage of his situation to advise, and to adequacy of consideration, are to be proved affirmatively by the trustee, as in any other case of such [**73]  dealings.

Applying these principles to the facts of this case, the counsel argued at length, that the original transaction, the conveyance of the lands and the transportation contract, was invalid; that Sherman bore such relation to the appellee as rendered him incompetent to purchase from or contract with the appellee; that the rule of absolute disability to buy of, or contract with the board of directors, of which he was one, applied to him; that it is impossible to find any parallel in the reported cases, or to imagine an instance more illustrative of the necessity of the rule of absolute disability, or calling more urgently for its application, without reference to the actual terms of the transaction, or the actual frauds by which it was effected; that the inadequacy of consideration far transcends any of the cases to be found in the books, and was in fact total, and that the sale and contract, if sustained, would be ruinous to the company; and that there was no such confirmation of the transaction as to bind the appellee. They further cited, as to inadequacy of price, 1 Story's Eq., sec. 246; 1 Brown's Ch. Rep., 8, Gwynne vs. Heaton; 3 Cow., 523, Seymour vs. Delancey; Hilliard [**74]  on Vendors, 356. They also argued that the allegations of the bill, as to actual fraud, were sustained by the proof of positive and material misrepresentations, and fraudulent and corrupt practices, by which the transaction was accomplished and the conveyance and contract obtained, and the conduct of Sherman and his confederates, throughout the whole affair, was tainted with fraud, and dishonestly, deliberate and designed. They also further argued, that Dean is shown by the evidence to have had such complicity with Sherman, that he stands in no better position, and gets no better title than Sherman.

2nd. The formation of the Hoffman Steam Coal Company was but a contrivance to cure, by the creation of a pretended bona fide purchaser without notice, a title originally defective. The company thus formed, was not real and bona fide, but simulative, and the conveyance to it did not substantially change the ownership as it before existed. But this new company had notice of all the facts connected with the title. 2 White & Tudor's Lead. Cases, 123, Le Neve vs. Le Neve. Again, this company has not paid the purchase money and cannot claim the benefit of a bona fide purchase without notice,  [**75]  except upon proof of the payment of the consideration in full. 2 White & Tudor's Eq. Cases, 112. 8 Wheat., 449, Wormley vs. Wormley. 1 Md. Rep., 422, Price & Bevans vs. McDonald. The contract for transportation is a chose in action, and is not a subject for the application of the rule as to bona fide purchasers without notice. 2 White & Tudor's Eq. Cases, 85, 215. 4 Cowen, 717, Hawley vs. Cramer. 10 G. & J., 420, Jones vs. Hardesty. The defence is not sufficiently pleaded. 2 White & Tudor's Cases, 77. Again, if these objections be out of the way, still the Hoffman Steam Coal Company is identical with Sherman and Dean. To raise the question of bona fide purchaser without notice, there must be a vendor distinct from the purchaser --there must be two parties and a transfer from one to the other. Here the parties are the same and not different in interest from Sherman and Dean. What consideration does this new company give? None whatever. The subscription of this land constitutes the whole stock of the company; it had nothing to give but a certificate that it held the land for the benefit of those from whom it received the land. Something must be parted with in the shape of consideration,  [**76]  which was not done here. The nominal stockholders were the mere agents of Sherman and Dean. As a payer of value or as a purchaser, this new company has, therefore, no standing in court. But if it had, it had notice through Sherman, who was a director therein, and also through his counsel, who prepared its articles of incorporation.

3rd. The appropriate remedy for a wrong like this, is a bill in equity to set aside the conveyance of the land and the contract for the transportation of coal, and praying an injunction to restrain the defendants, in the meantime, from alienating, incumbering or working the lands and mines, and transferring the stock, &c. 3 Daniell's Ch. Prac., 307. 2 Story's Eq., secs. 954, 929. 4 Eng. Law & Eq. Rep., 175, Shrewsbury R. R. Co. vs. Birmingham R. R. Co. 18 Ves., 184, Thomas vs. Oakley. 6 Johns. Ch. Rep., 497, Livingston vs. Livingston. The present motion to dissolve being made by one of the defendants alone, the Hoffman Steam Coal Company, it can take no benefit from the answers of its co-defendants, but must stand on its own, and the equity of the complainant's bill must be taken as proved against the defendants who have not appealed. As to the Hoffman [**77]  Steam Coal Company, the equity of the bill cannot be and is not denied, except upon information and belief, and its defence rests entirely upon new matter in avoidance. Under such circumstances an injunction will not be dissolved on motion, but will be continued till final hearing. 2 White & Tudor's Eq. Cases, 110, 111, 112. 3 Ired. Ch. Rep., 170, Lyrely vs. Wheeler. Ibid., 576, Kerns vs. Chambers. 2 Dev. & Batt. Ch. Rep., 13, McNamara vs. Irwin. 12 G. & J., 244, Hutchins vs. Hope. 2 Johns. Ch. Rep., 202, Roberts vs. Anderson. 1 Green's Ch. Rep., 439, Chetwood vs. Brittan. Adam's Eq., 356, and notes. 2 H. & J., 36, Lynch vs. Colegate. 1 Bland, 335, 336, Chase vs. Manhardt.

4th. The exceptions to the sufficiency of the averments of the original and amended bills ought not to be sustained, because the averments are sufficient to show a title to be relieved by injunction, the rule being, that if the bill shows a case, which, though not sufficient in its then form to entitle the complainant to the final relief asked, yet may be made so by proper amendments, and taken in connection with the answer as a mere pleading, shows a case for equitable interference by injunction; the injunction,  [**78]  having been granted, will be continued, and the proper amendments allowed to be made before final hearing. 3 Ired. Ch. Rep., 390, Smith vs. McLeod. Act of 1854, ch. 230. The several deeds subsequent to that of the 22nd of April 1856, were all made in execution of one and the same contract of sale, and are merely confirmatory of the original deed.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*499]  LE GRAND, C. J., delivered the opinion of this court:
This is an appeal from an order granting an injunction, and from a subsequent order continuing the same, upon the hearing of a motion to dissolve, passed by the Circuit court of Allegany county, in an equity cause therein depending, in which the Cumberland Coal and Iron Company was the complainant, and Allen M. Sherman, William B. Dean, and the Hoffman Steam Coal Company, were defendants. The motion to dissolve was made by all the defendants, and, being overruled in the opinion of the court, after an amendment was made to the bill of complaint, the formal order was filed, the amended bill having been answered by all the defendants. The Hoffman Steam Coal Company, alone, appealed.  [**79]  
The object of the bill is, to cause to have declared null and void certain deeds of lands from the complainant to Messrs. Sherman and Dean, and the cancellation of a contract, entered into with them by the complainant, for the transportation of coal, &c., over a railroad belonging to the latter. And, also, to procure a transfer of the aforesaid lands to the complainant, the same having been conveyed, as also the contract of transportation, to the appellant. The bill prays an accounting on the part of the defendants, as to the coal, &c., which have been mined and transported from the lands mentioned in the proceedings; and, also, an injunction restraining the disposition and sale of any of said lands, the stock of the appellant, or the transfer of the contract relating to transportation.
The whole equity of the complaint rests on two principal 

 [*500]  allegations. First, fraud, in fact, on the part of Sherman and Dean in their dealings with the property of the complainant; and, second, that if there be no such fraud, in fact, as to vitiate the whole transaction, the law, under the circumstances of this case, imputes such knowledge to the appellant of the relation [**80]  of Sherman to the complainant and the course of his proceedings, as will affect its title with whatever infirmity belonged to his title.
The principal and operative facts detailed in the bill of complaint, may be thus stated:
The complainant was incorporated by the State of Maryland, at December session 1840. Andrew Mehaffey was its president from the 20th of March 1854 to the 7th of June 1858. Sherman became a director, by an election to fill a vacancy, on the 21st of February 1855, and continued to be such until the 29th of May 1858. On the 4th of April 1855, Sherman was appointed chairman of a committee to prepare by-laws, and as such, on the 4th day of June 1855, reported to a meeting of stockholders, that an executive committee should be created, to be constituted of three directors, two of whom to form a quorum, the committee to be appointed exclusively by the president; that in pursuance of the authority conferred upon him by the adoption of the report, the president, Mehaffey, appointed Messrs. Sherman, Francis Bloodgood and Joseph Torrey, an executive committee, and, as such, they assumed to act on the 29th of May 1858, but they never kept any record of their proceedings.  [**81]  That, on the 9th of October 1855, Sherman, at a meeting of the board of directors of the complainant, held in the city of New York, proposed for the adoption of the directors, which was done, the following resolution: "Resolved, that the president appoint a committee of five directors, whose duty it shall be to proceed to the company's property in Maryland, and ascertain how much and what part of their lands can be sold without interfering with the working and facilities of the company; and if practicable, that they apportion and set-off, by metes and bounds, such portions as they, in their judgment, shall deem advisable, and report the result of their commission to this board at the 

 [*501]  earliest day practicable." Sherman was appointed chairman of the committee, having associated with him on it, Joseph Torrey, M. N. Falls, William Petit and Francis Bloodgood. This committee was appointed by the president, Mehaffey, who, on motion, was added to it. Only Sherman, Mehaffey and Petit acted and visited the lands. On the 11th of December 1855, they made a report recommending a sale of a portion of the lands of the complainant; a resolution was passed authorizing a sale of land for [**82]  $ 200,000. On the 15th of January 1856, another resolution was passed, which, after referring to that of the 11th of December, and declaring its execution to have been found impracticable, proceeds as follows: "It is understood that a sale of a less quantity of land, for $ 150,000, or thereabouts, may be effected, which sale, it is believed, will accomplish all the ends, &c.; therefore, resolved, that the president and secretary be, and they are hereby authorized and directed to make such sale, by executing a deed of the land to be sold, and to make and execute such covenants and agreements, on the part and in the behalf of this company, and as they may deem necessary to accomplish the ends above mentioned. Resolved, that the president be, and he is hereby authorized to modify the terms and conditions of such sale, in his discretion, if he shall deem it necessary to the accomplishment of such sale."
On the 22nd of April 1856, at the city of New York, a deed of conveyance of certain lands belonging to the complainant, and therein described, and a certain agreement relating to transportation, were executed and delivered by Mehaffey, as president, to Sherman and Dean. This transaction [**83]  was, on the 13th of May 1856, reported to a meeting of the directors of the Cumberland Coal and Iron Company, and according to the minutes of its proceedings, "after explanations" it, as well as the acts of the president and secretary, were, by the board, "unanimously approved," and a copy of the deed, together with the agreement entered into, directed to be placed on file for future reference.
On the 19th day of August 1858, the Hoffman Steam Coal Company of Allegany county was formed, under the Act 

 [*502]  of Assembly, of this State, of 1852, chapter 322. On the 20th of August 1858, Sherman and wife, and Dean, conveyed to the Hoffman Company, the land which had been conveyed by Mehaffey to Sherman and Dean, and, according to the bill, were about "to execute and deliver to the said company an assignment of the aforesaid contract for transportation, or other instrument purporting to impart to the said company, rights under and by virtue of the said contract." The bill alleges the capital stock of the Hoffman Company to consist of five thousand shares, of which, they charge, "on information and belief," Sherman and Dean became subscribers to the number of four thousand nine hundred [**84]  and ninety shares; that Sherman was a subscriber for about five-eighths of the shares, and Dean for about three-eighths of the shares; and that the other two shares were nominally taken by other parties for the purpose of enabling the said parties to participate in the formation of the said company and become directors thereof. The bill charges, that Sherman, in the form of stock issued by the Hoffman Company, still retains his interest in the lands mentioned in the deed executed by the president of the complainant, and also, in the contract of transportation, and that he retains possession of the deeds and contract; that he is an officer as well as director of the company, and has and exercises entire practical control of the company, and that the change or conversion of his ownership in the lands into an interest in the stock, is a fraudulent device, for the purpose, and with the design, of evading the jurisdiction and process of the court. It also charges, that the Hoffman Company had, before the execution and delivery to the said company of the deed by Sherman and Dean, and before its agreement to purchase the lands thereby conveyed, and before the formation of any contract, whereby [**85]  the said company was to acquire or enjoy any of the advantages conferred by the said contract for transportation, and that the defendant Dean also had, before he entered into the purchase of the lands, or into the contract for transportation, full notice of the frauds in said sale, in the procurement, origin, formation, execution and delivery of the deed, and of 

 [*503]  the contract for transportation, and of all the facts relating thereto.
In addition to the fraud alleged in the procurement of the deed and contract by Sherman, the bill alleges, the price agreed to be paid for the land to be grossly inadequate, and the terms of the contract of transportation to be ruinous to the Cumberland Coal and Iron Company. It also denies there has been a payment according to the terms of the purchase, and asserts that Dean was but a mere "representative man," by which is meant one without pecuniary substance.
The gravamen of the bill is, that Sherman, with others, but principally with Mehaffey, conspired to despoil the complainant of its property by proceedings conducted by them, as its officers, and that full knowledge of all the facts and circumstances was had by the Hoffman Company,  [**86]  Sherman being, practically and really, the company; and that, whether or not there be sufficient evidence of fraud in fact on the part of those charged with it, nevertheless, in the contemplation of the law, the transaction is such as will be declared null and void, and of non-effect, on grounds of public policy.
Sherman and Dean, in their answers, deny all fraud, the latter disclaiming all knowledge of Sherman or of his transactions until he became connected with the purchase of the land. The Hoffman Company in its answer, sworn to by its president, S. Brooke Postley, admits the formation of the company, and that Sherman and Dean conjointly took the capital stock thereof to the extent of 4990 shares, and avers that the other ten shares were, at the same time, subscribed for by other parties, and denies that it is true that the said ten shares were nominally subscribed for by said other parties, and says they were paid for by such other parties, and were not subscribed for on behalf of Sherman and Dean or either of them. It states that Sherman and Dean have since sold, actually and bona fide, a large part of their stock, so that they are not the large holders they originally were.  [**87]  It denies the frauds alleged in relation to the conveyance and contract of transportation, and insists, that even if they existed, the company had no knowledge of them, but became the purchaser of said property, 

 [*504]  and assignee of said contract of transportation, bona fide and for a full and valuable consideration. It admits the mining of coal on the property, and sets up, as a confirmation of the original deed and contract, the fact of the receipt by the complainant of the price of transporting under the contract.
A great deal of testimony was taken, on the side of the complainant, to show, what is alleged to be, the unconscionable character of the contract, and that what was done at the meeting of the stockholders of the Cumberland Coal and Iron Company, held on the 1st of June 1857, other than the voting for president and directors, was unauthorized, and that of 27,997 votes cast, 22,508 were given by proxy; that the parties voting by proxies were only empowered to vote for president and directors, and several parties were examined to show, that they, as stockholders, had no knowledge whatever of the conveyance to, and contract with Sherman and Dean, and never intended [**88]  to ratify them. It is not necessary the testimony, on the one side or the other, should be critically examined, inasmuch as, on this appeal, the chief inquiry will be, whether the Hoffman Company has a standing in court as an independent litigant, and as a bona fide purchaser for value, and without notice of the circumstances preceding and conducing to its acquisition of title.
Much was said, and earnestly said, in argument, in impeachment of the integrity of the actors in these transactions, and, especially, in the arraignment of the honesty of Sherman and Mehaffey; fraud, studied and systematic, was imputed to them throughout the whole of their dealing with the matters involved in this controversy. Whatever may have been their true motives of action, the facts disclosed in evidence do not demand that we should brand them as wilfully dishonest. One of the most distinctive features in the history of the development of the mineral regions of our State has been, the insane spirit of speculation which has characterized it at almost every step. Honest men, as well as dishonest men, uninfluenced by the disastrous failures of their predecessors, have, from time to time, embarked in [**89]  enterprises under the delusive hope of speedily, and as it were by magic, 

 [*505]  realizing princely fortunes, and have only been awakened to a sense of the unreality of their calculations and hopes, by the crash occasioned by their utter prostration and ruin. This spirit of wild speculation ordinarily blinds those who are engaged in it, and subjects them to the condition in which they are unable to see things as others see them. Legal disabilities rarely occur to them; it being, with most of them, an axiom of public or political economy, that the exchange of one article for another, at fictitious rates, and without the bestowal of labor on either, increases the value of both. Men, involved in transactions of this kind, very frequently, without the slightest consciousness of dishonesty of purpose, do things which the law condemns, and which it declares to be of no value. It is to guard against this proneness to a nonobservance of what is strictly right and proper in the dealings of corporations, the law has wisely interposed its checks and prohibitions; and, we think, in the present aspect of this case, these are all sufficient to justify the action of the Circuit court, without [**90]  staining the reputation of any of the parties to the controversy with fraud or perjury. Uprightness and integrity of character are too precious a possession to be dealt with lightly anywhere, and ought not especially, to be sullied by the judgment of a court of justice, except on clear and conclusive evidence.
The first matter of inquiry is, the nature and legal effect of the transactions of Sherman with the Cumberland Coal and Iron Company.
The whole evidence incontestably establishes these facts:
1st. That Sherman was a director of the Cumberland Coal and Iron Company, from the 21st of February 1855, to the 29th of May 1858.
2nd. That, on the 9th of October 1855, on motion of Sherman, a committee was appointed to visit the lands of the company in Maryland, and report on the expediency of selling a portion of them, and of which committee he acted as chairman, and, as the organ of which, he recommended a sale, &c., &c.
3rd. That, on the 22nd of April 1856, Sherman received 

 [*506]  the deed to himself and Dean for the land, and the contract relating to the transportation over the railroad of complainant.
It thus appears that Sherman was a director in the Cumberland Coal and [**91]  Iron Company, from the incipiency of the project to dispose of a part of its property down to its consummation, and so remained for more than two years thereafter. He actively participated in all measures tending to the completion of the sale, and, of course, had full knowledge of all the circumstances attendant on its progress. About this the documentary proof allows of not a shadow of doubt.
Under this state of case the question is, whether Sherman was competent to become a purchaser of the property of the plaintiff.
In considering the capacities of a trustee to purchase the property of his cestui que trust, the authorities regard them under two classifications: first, where a trustee buys or contracts with himself, or several trustees, of which he is one, or a board of trustees; second, where the dealing of the trustee is with a cestui que trust, who is sui juris and competent to deal independently of the trustee in respect to the trust estate.
Whether the transactions of Sherman be considered, under the one or the other head, is immaterial so far as this appeal is concerned, for, in our judgment, in either case, they cannot be upheld if resisted. The distinction [**92]  between the two classes of cases consists in this: that in the first, the contract is voidable absolutely at the instance of the cestui que trust, without regard to its fairness; whilst in the second, although the presumptions of the law are against the contract, yet, permission is given to the trustee, to show the perfect bona fides of the transaction and circumstances relieving it from the censure of the law. This is a distinction recognized in most of the books, but, it is not universally so. So far from it, some of the cases insist, with great earnestness, that the governing principle ought to be, and is, the same in both cases It is not necessary we should investigate the solidity of this last mentioned doctrine; for, whether the dealings of Sherman 

 [*507]  belong to the one or the other class, they equally fall under the correction of a court of equity.
The necessity of good faith--and that free from suspicion, as far as practicable--between the principal and agent, is the main pillar of support to the doctrine; the necessity of it underlies all the decisions. Remembering the weakness of humanity, its liability to be seduced, by self-interest, from [**93]  the straight line of duty, the sages of the law inculcate and enjoin, a strict observance of the divine precept: "Lead us not into temptation."
In this State, as elsewhere, it is well settled that trustees cannot purchase at their own sales, either directly or indirectly, and if they do, such purchase will be set aside, on the proper and reasonable application of the parties interested. Richardson vs. Jones, 3 Gill & Johnson 163. This doctrine, which is applicable to trustees, applies also to purchases by persons acting in any fiduciary capacity, which imposes upon them the obligation of obtaining the best terms for the vendor, or which has enabled them to acquire a knowledge of the property. The authorities supporting it are numerous and uncontradictory; they will be found brought together to a considerable number in the notes to the case of Fox vs. Mackreth, 1 White & Tudor's Leading Equity Cases, 105. A director in a company holds such a relation to its stockholders. The House of Lords, in the case of the Aberdeen Railway Company vs. Blaikie, 1 Macqueen Rep. 461, held that a contract, entered into by a manufacturer for the supply of iron furnishings [**94]  to a railway company of which he was a director, or the chairman, at the date of the contract, was invalid, and not enforceable against the company; and Lord Cranworth, in delivering the opinion, said: "A corporate body can only act by agents, and it is of course the duty of those agents so to act as best to promote the interests of the corporation, whose affairs they are conducting. Such an agent has duties to discharge of a fiduciary character towards his principal, and it is a rule of universal application, that no one having such duties to discharge, shall be allowed to enter into engagements in which he has, or can have, a personal 

 [*508]  interest conflicting, or which possibly may conflict, with the interests of those whom he is bound to protect. So strictly is this principle adhered to, that no question is allowed to be raised, as to the fairness or unfairness of a contract so entered into. It obviously is, or may be, impossible to demonstrate how far, in any particular case, the terms of such a contract have been the best for the cestui que trust, which it was possible to obtain. It may sometimes happen, that the terms on which a trustee has dealt, or attempted [**95]  to deal, with the estate or interests of those for whom he is a trustee, have been as good as could have been obtained from any other person; they may even, at the time, have been better. But still so inflexible is the rule, that no inquiry on that subject is permitted. The English authorities on this subject are numerous and uniform." The same views are expressed in the case of Michoud vs. Girod, 4 Howard 503, a case elaborately discussed by counsel and court. "The rule," say the court, "embraces every relation in which there may arise a conflict between the duty which the vendor or purchaser owes to the persons with whom he is dealing, or on whose account he is acting, and his own individual interest."
These citations are sufficient to show, that the dealings of the defendant, Sherman, with the property of the complainant, fall directly within the prohibition of the rule, and, as a consequence, obnoxious to disavowal.
But, it is said, however this may be, the whole transaction was fully ratified and confirmed by the complainant, which ratification and confirmation relieved it from all legal infirmity. An attentive consideration of its whole history, as detailed in the record,  [**96]  has not brought us to this opinion. The law governing questions of ratification, in cases like the present, is well settled. To render the act of ratification effective and conclusive, certain considerations are necessary. At the time of the supposed ratification, the principal must have been fully aware of every material circumstance of the transaction, the real value of the subject of the contract, and his act of ratification must have been an independent and substantive act, founded on complete information, and of 

 [*509]  perfect freedom of volition. And, in addition to all this, the cestui que trust must not only have been acquainted with the facts, but apprised of the law, how those facts would be dealt with if brought before a court of equity. Lewin on Trusts, (Ed. of 1858,) page 615.
This last requisite, it is nowhere shown in the proof, has been complied with. But, on the contrary, it is fairly to be inferred that the stockholders believed they were concluded by what had been done, and this inference is particularly strengthened by the circumstance, that the modification in the contract of transportation was solicited and granted, not as a matter of right,  [**97]  but as a concession on the part of the beneficiaries under it. In this view, it is not necessary we should dwell more fully on the other facts attending the negotiation and sale. Such commentary properly belongs to the final hearing.
As to Dean, it is only necessary to observe, that it is impossible to believe he was ignorant, when he became associated in the transaction, of the fact that Sherman was a director in the Cumberland Coal and Iron Company. We cannot suppose him to have become a party to a contract, involving enormous sums of money and great liabilities; without some knowledge of the existence and organization of the corporation, with which he was dealing to so great an extent. Imputing to him the possession of ordinary intelligence, and judging of his transactions by the rules which usually influence human conduct, when taken in connexion with all the facts and circumstances surrounding him, we are led to the conclusion, that he had knowledge of the relation which Sherman bore to the Coal and Iron company, and is, therefore, affected with whatever of legal disability belonged to Sherman, by reason of that relation.
But it is urged that however defective the title of Sherman [**98]  and Dean may, under the circumstances, have been, the title of the Hoffman Steam Coal Company of Allegany is, nevertheless, good and free from blemish, it having been acquired bona fide and without notice.
In view of the facts of this case, it is immaterial to inquire, 

 [*510]  what would be the principles applicable to a case in which the defendant had, in point of fact, become possessed of title bona fide, and without notice of the circumstances impairing that claimed by those from whom it was derived. The facts of this case are too palpable to allow of conjecture; and they all show that, whatever knowledge Sherman had, must have been possessed by the Hoffman Steam Coal Company of Allegany county. This company was incorporated under the act of 1852, on the 19th of August 1858, and, on the day following, the deed was made to it in pursuance, clearly, of one entire plan. Sherman and Dean becoming the owners of 4996 of the five thousand shares, into which the capital stock was divided; it was, in fact, but a contrivance, whereby the same property was held by the same parties, but under a different name. The testimony of Shoemaker shows, that his ownership of one [**99]  share was unreal; that he never did pay for it, and that his participation in the organization of the company was merely to oblige other parties, towards whom he held friendly relations; and, notwithstanding the statement of Postly to the contrary, it is no violent presumption, that others, whose names were used in the organization of the company, occupied the same relation to it as did Shoemaker. If the facts of this case were deemed insufficient to establish notice, then, it is difficult, if not absolutely impossible, to imagine a combination of circumstances adequate to such a result. The whole case shows, that in the early stages of the existence of the appellant, so far as its property and transactions were concerned, it and Sherman were one and the same. In conveying to the Hoffman Company he was but conveying to himself.
It appears, from the evidence, that some of the shares in the stock of the Hoffman Steam Coal Company were held by other persons than Sherman and Dean, prior to the sixth day of December 1858, the date of the filing of the original bill, and, it is contended, that as to them, they being bona fide holders without notice, the objections urged against Sherman [**100]  and Dean are not applicable. There is no doubt that where a purchaser, with notice from a trustee, conveys for 

 [*511]  valuable consideration to another person, who has no notice of the trust, the estate will not be affected with the trust in the hands of the second purchaser. Hill on Trustees, 516, (marginal.) But, as to shareholders so situated, there is no question presented by this appeal. It is only as to the right of the appellant to ask a reversal of the order of the court, that we are now called upon to decide. We need not, therefore, look into the testimony for the purpose of discovering what number, if any, shares of stock were held by innocent parties before the filing of the bill.
We think the objections to the sufficiency of the bills of complaint were properly disposed of by the judge of the Circuit court. The charge of fraud is made specifically, and the invalidity of the deeds given subsequently to that of the 22nd of April 1856, is assailed on the same ground as is that.
We are of opinion there is an abundance in the case, as now made, to justify the continuance of the injunction until final hearing, and we accordingly affirm the orders of the Circuit [**101]  court of the 25th day of May 1859, refusing to dissolve the injunction, and, also, the order of the third day of October 1859, overruling the motion, made by the appellant, to dissolve the injunction.
Orders affirmed. 

CONCURBY:
ECCLESTON 

CONCUR:

ECCLESTON, J., delivered the following opinion:
Without deciding whether, at the time Dean became first associated in the transaction mentioned in the proceedings, he was or was not ignorant of the fact that Sherman was a director in the Cumberland Coal and Iron Company, I think there is enough shown by this record to authorize the court, in the exercise of its equitable discretion with regard to the dissolution of injunctions, to continue the present injunction until the final hearing. And, therefore, I concur with my brothers in affirming the orders appealed from.  

81 of 196 DOCUMENTS 

THE NORTHERN CENTRAL COMPANY vs. MARY ANN SCHOLL, Adm'x of ELIAS SCHOLL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 331; 1860 Md. LEXIS 71 

July 11, 1860, Decided 

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

This action was brought on the 11th of July 1855, by the appellee's intestate, against the appellant, to recover the value of a slave for life, named Solomon Digges, belonging to the plaintiff, and alleged to have been lost to him by being transported in the cars over the railway of the defendant.

Exception. The pleadings and evidence are sufficiently stated in the opinion of this court. After all the evidence had been offered on both sides, the plaintiff asked the following instruction to the jury:

That if the jury shall find, from the evidence in the cause, that the defendant by arrangement with the Hanover Branch Railroad Company, had the authority to appoint an agent for the sale of passenger tickets, from Hanover to Baltimore, York, Harrisburgh and Columbia, and that the defendant in pursuance of such arrangement, and by virtue of such authority, had, prior to May 1855, appointed the witness, Leib, such agent, and that Leib, during May 1855, acted as such agent, and sold tickets for the passage of persons holding them from Hanover to said point, or points, named in said tickets respectively, and that on the morning [**2]  of the 28th of May 1855, Leib, as such agent, sold and delivered to the negro man, Solomon Digges, spoken of by the witnesses Epply and Barrick, a ticket to pass on the said Hanover Branch Railroad to the place called the Junction, and thence in the cars of the defendant to York, and that in virtue of said ticket, the said negro man did travel over the said railroad from Hanover to the Junction, and thence on the railroad of the defendant from the Junction to York; and shall further find, from the evidence, that said slave was a valuable slave, and that he became and was wholly lost to the intestate of the plaintiff, and is wholly lost to his estate and to the plaintiff; and shall further find that the said agent, before the cars started, was notified that the said negro man was a slave and had run away from his master in Frederick county, and that said agent, notwithstanding said notice did not forbid or prohibit the said negro man from keeping in the cars with said ticket, and did not take any steps, nor make any effort to prevent the said negro man from going on in said cars, or to get back said ticket, or to prevent the escape of said negro, then the conduct of said agent was wrongful [**3]  and negligent, and the defendant is responsible to the plaintiff for such damages, if any, as the jury may find, from the evidence, the plaintiff's intestate sustained by reason of such conduct.

The defendant then asked the following instructions:

1st. That the defendant is a common carrier of passengers, and bound to carry in its cars all persons entitled to be so carried, upon tendering the defendant the fare prescribed by law, and complying with such reasonable regulations as the defendant may prescribe, and that it is responsible in damages for a refusal to carry any such persons on those terms.

2nd. That by the true construction of the contract between the defendant and the Hanover Branch Railroad Company, offered in evidence by the plaintiff, the agent mentioned in the third article thereof, though to be appointed by the defendant, was, as to sales of through tickets made by him, the agent of the Hanover company, so far as said tickets authorized a passage over the road and in the cars of said Hanover company, and under the division made by the fifth article of the fare received by him at Hanover for through passenger tickets, the portion thereof payable to the [**4]  defendant was for the transportation of passengers by the defendant over its own road, and not for the transportation over the road of the said Hanover company; and if the jury shall find, from the evidence, that Mr. Leib was appointed by the defendant as agent, under the said third article and accepted said appointment, and while acting as such agent, sold to Solomon Digges, the slave of the plaintiff's intestate, (if they shall find him to have been the slave of the said intestate,) at Hanover, under said agreement, a through ticket from Hanover to York, and that by virtue thereof he was entitled to a passage in the cars of the said Hanover company, and propelled by its motive power upon the said Hanover company's said road, from Hanover to the junction of the said Hanover company's road, with the road of the defendant, and thence in the cars of the defendant, and propelled by its motive power and over its railway to York; and that the defendant and the said Hanover company are not one but different companies, and own and use, and did then own and use, separate roads, cars and motive power, then that the defendant is not liable for the sale of said through ticket so far as it respected [**5]  the transportation of the said slave on the said Hanover company's road, or for the transportation of said slave upon the said last mentioned road.

3rd. If the jury shall find that the defendant was formed, and constituted a corporation in 1854, under the Act of Assembly of Pennsylvania of 1854, No. 531, (which has been offered in evidence by consent,) and the Act of Assembly of Maryland of 1854, ch. 250, upon the terms and conditions contained in the written agreement for that purpose offered in evidence by consent, and entered into by the Baltimore & Susquehanna Rail Road Company, and the other parties thereto, and that a full record and report thereof was certified by the president of said company, and transmitted to the Governors of Maryland and Pennsylvania; and if they shall further find, from the evidence, that Solomon Digges was the slave of the plaintiff's intestate, and that the said slave bought a passage ticket for transportation by the defendant on its cars upon its railway, as stated by the plaintiff's witnesses, then the plaintiff is not entitled to recover in this action under the Act of 1838, ch. 375, provided, the jury shall find from the evidence that the said [**6]  sale of the said ticket was made in Pennsylvania, and that the part of the defendant's railway upon which the said slave so procured a ticket for transportation, and was transported, was within the State of Pennsylvania.

4th. If the jury shall find from the evidence, that Solomon Digges was the slave of the plaintiff's intestate, and that the said slave bought a passage ticket for transportation, and was transported, in the defendant's cars upon its railway, and that the defendant, and the person selling said ticket on the defendant's behalf, to said slave, received no other notice or information that the said Solomon Digges was a fugitive, except what was communicated to said agent by the plaintiff's witness, Epply; and if they shall further find from the evidence that slavery did not exist in Pennsylvania at the time of such sale and transportation, except as to fugitive slaves, and that said Solomon Digges was a fugitive slave and had escaped from his master in Maryland, at the time of such sale and transportation, and that said sale and transportation took place in Pennsylvania, and that the said Epply was not authorized by the master of the said slave to seize and arrest [**7]  said slave, and was not assisting the master or any agent or attorney of said master, and that said sale and transportation were made openly and in good faith, and not to prevent the discovery and arrest of said slave, then, that the sale of said ticket, and the transportation of the slave, under the circumstances above mentioned, was not, nor was either of them, a violation of the rights of the plaintiff's intestate, as to such fugitive slave, secured to him by the Constitution and laws of the United States, and the plaintiff is not entitled to recover.

5th. If the jury shall find from the evidence that Solomon Digges was a slave of the plaintiff's intestate, and had actually escaped out of the State of Maryland, before he purchased a passage ticket at Hanover, or was conveyed in the defendant's cars upon its railway, as testified to by the plaintiff's witnesses; and if they shall further find from the evidence that the said slave was taken on said cars in Pennsylvania, and carried on the defendant's railway, from one point to another, in that State, and that he left said cars and railway, in that State, then, that the plaintiff is not entitled to recover the value of said slave,  [**8]  unless they shall also find from the evidence that the loss of said slave was attributable wholly to his being so transported from one place to another, in Pennsylvania, and that but for said transportation he would not have been lost to the plaintiff.

6th. If the jury shall find from the evidence that Solomon Digges was the slave of the plaintiff's intestate, and that he escaped, from his master, into Pennsylvania, and bought a passage ticket in Pennsylvania, and was transported upon the defendant's railway in Pennsylvania; and if they shall further find from the evidence, that, at the time of said sale and transportation, there was no fact within the knowledge of the defendant, or its agent, to warrant the presumption that said Solomon Digges was a slave, but his color, and that, by the laws of Pennsylvania, in force at the time, every person of color was presumed to be free, that then the plaintiff is not entitled to recover.

7th. If the jury shall find, from the evidence, that Solomon Digges was the slave of the plaintiff's intestate, and escaped into Pennsylvania, and, after such escape, bought a passage ticket there and was transported in the defendant's car upon its [**9]  railway in that State, as testified to by the plaintiff's witnesses; and if they shall further find from the evidence that the defendant received, anterior to said purchase or transportation, no notice, and had no knowledge that the purchaser of said ticket, and the person so transported, was a fugitive slave, except what was given by the plaintiff's witness, Epply, to the ticket agent at Hanover as testified to by him; and if they shall further find, from the evidence, that the said ticket agent at Hanover, had no authority from the defendant to sell passage tickets over any part of its road to any person whom he might reasonably suspect to be a fugitive slave, and that said ticket agent, knowing, or having reasonable grounds for suspecting, that said Solomon was a fugitive slave, sold him a passage ticket, by virtue of which he was transported, as stated by the witnesses, upon the defendant's railway in Pennsylvania, with intent, knowingly and wilfully, to aid said slave in his escape from his master, and that said slave was thereby lost to his master, then that the plaintiff is not entitled to recover.

8th. In estimating the value to be allowed to the plaintiff for his slave,  [**10]  if the jury shall find for the plaintiff, the jury must take into consideration the fact, that at the time when said slave purchased a ticket for transportation, and was transported in the defendant's cars, he was a fugitive in a free State, and allow the value of said slave accordingly.

9th. That this court has no jurisdiction of the tort alleged to have been committed by the defendant, as the same is detailed in the plaintiff's evidence, and that the plaintiff is not entitled to recover, if the jury find from the evidence that slavery does not exist in Pennsylvania, except as to fugitive slaves, because the jurisdiction of said tort is vested, by the Act of Congress, of 1850, ch. 60, exclusively in the District Court of the United States for Pennsylvania, within whose jurisdiction the said alleged tort was committed.

The court (LEE, J.) rejected the plaintiff's prayer, granted the first, third, sixth, seventh, eighth, and rejected the second, fourth, fifth and ninth, prayers of the defendant, and the defendant excepted to the refusal to grant its prayers which were rejected. The verdict was in favor of the plaintiff for $ 813.40, damages and costs, and from the judgment [**11]  thereon the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A ticket-agent of the Northern Central Railway Company, a Maryland corporation, sold a ticket, in Pennsylvania, to a negro, after notice that he was a runaway slave, entitling him to pass over a portion of its road in that State, whereby his escape from service was facilitated. HELD:

1st. That this was a tort for which the master of the slave, a citizen of Maryland, may recover the value of the slave, in a Maryland court, against the railway company.

2nd. It makes no difference that the act was committed without the limits of Maryland, and in the State of Pennsylvania, by whose laws slavery is not recognized.

3rd. Nor is the jurisdiction of such a tort vested, by the Act of Congress of 1850, ch. 60, exclusively in the District court of the United States for Pennsylvania; the 7th section of that Act allowing the recovery of damages in certain cases, does not touch the question of the value of the escaped slave.

4th. Nor is it essential to the plaintiff's recovery, that he should prove that the loss of the slave was attributable wholly to his being transported on the defendant's road, from one place to another, in Pennsylvania; if the defendant aided him in his escape, it matters not who assisted in it.

A personal tort, committed against a citizen of Marryland, in another State, may be redressed by action against the wrong-doer, in the courts of Maryland, whenever he comes within its limits.

In all actions for injuries, ex-delicto to the person, or to personal property, the venue is, in general, transitory, and may be laid in any county, though committed out of the jurisdiction of the court or out of the State.

The right of property of the citizens of Maryland in their negro slaves, is recognized by the Constitution of the United States, which is the supreme law of the country.

Whilst it is competent to Pennsylvania, or any other State, to prohibit negro slavery within its borders, yet, it is beyond its power to authorize its inhabitants, or others, to assist in despoiling the citizens of Maryland of their property in slaves.

A State may, if it pleases, forbid its courts to grant redress for such a wrong, but it cannot oust the jurisdiction of the courts of the State of the injured party; whenever the wrong-doer comes within its limits, he is liable to be made answerable for his tortious acts.

Though slavery be not established by the laws of Pennsylvania, it is recognized, and its protection guaranteed by the Constitution of the United States, and a railway company in that State has no more right, knowingly, to assist in the escape of a runaway slave than a wagoner on the high road.

By an agreement between the defendant and another railroad company, the defendant was to appoint an agent, whose duty it was to receive and collect freight, to sell all passengers tickets, and to receive the revenues accruing from the joint operations of the two companies. HELD:

That by this agreement there is no partition of the agency as to the sales of through tickets over both roads; the defendant is responsible for the manner in which this agent discharges his duty in the sale of such tickets. 

COUNSEL:
Daniel M. Thomas and J. Mason Campbell, for the appellant:

1st. The second prayer is based upon the construction of the contract between the defendant and the Hanover Branch Railroad Company, and asks an instruction to the jury, that by the proper construction of that contract, no partnership was created between the two companies, and that unless they found a partnership, the one company was not responsible for the acts of the other. That the arrangement between the two companies, respecting the sale of through tickets and the appointment of one ticket agent for both, did not constitute a partnership between them, is well settled by authority. Redfield on Railways, 282, 349, 350. 19 Barb., 222, 237, 238, Briggs vs. Vanderbilt. 26 Ala., 736, Ellsworth vs. Tartt. 2 Pet., 150, Boyce vs. Anderson. 4 Richardson, 160, Sill vs. South Caro lina Rail Road Company. And if there was no partnership, the correctness of the latter part of the prayer-- "that the defendant is not liable for the sale of said through ticket, so far as it respected the transportation of the said slave on the said Hanover company's road, or for the transportation [**12]  of said slave upon the said last mentioned road"-- follows as a matter of course. The mere sale of the ticket worked no injury to the owner of the slave, unless the slave actually exercised the right which the ticket gave him. The injury was, his transportation beyond the reach of the master. If, notwithstanding his purchase of the ticket, he had not entered the cars of either company, then no wrong was done to the owner of either company, by the sale of the ticket. And if, with the ticket, he was only transported over the road of the Hanover company, that company alone was responsible for such transportation. Now, if this be so, and if the evidence of the transportation over the defendant's road was merely presumptive, (as was the case, for no witness testified to seeing him enter the cars of the defendant, or even that he went as far as the Hanover Junction,) then the jury were at liberty to find the fact of such transportation or not; and it was proper, therefore, that they should be instructed that unless they did find it, the plaintiff was not entitled to recover. The refusal of this prayer could only be justified on the theory that the Hanover company was the agent of the defendant;  [**13]  and when we search the record for the evidence of such agency, we find there is none whatever, unless the appointment of one agent to act for both, in the sale of tickets, constituted each company, as to every thing respecting the carriage of passengers, the agent of the other.

2nd. The principle asserted by the fourth prayer is, that in Pennsylvania the rights of the slave owner, in respect to fugitive slaves, exists only in virtue of the Constitution of the United States and the Acts of Congress upon that subject; and that the only wrongs in violation of such rights committed in that State, for which he can claim legal redress, are those defined by the Acts of Congress. And if this principle be correct, the plaintiff's case does not come within the scope of the Acts of Congress, and, therefore, does not constitute in her any right of action. The State of Pennsylvania, so far as her laws can make her so, is a free State, in which the slave holder, in respect to his slave property, has no rights whatever. The Pennsylvania Act of 1780, ch. 68, after providing for the emancipation of all slaves from and after the passage of the Act, on their serving till the age of twenty-eight [**14]  years, and requiring the registry before the 1st day of November 1780, of the names of all slaves who were such at the time of the passage of the Act, enacts: "That no man or woman of any nation or color, except the negroes or mulattoes, who shall be registered as aforesaid, shall at any time hereafter be deemed, adjudged or holden within the territories of this commonwealth, as slaves or servants for life, but as free men and free women." Their Bill of Rights, adopted in 1838, asserts the broad principle, "that all men are born equally free and independent." And the Supreme Court of that State, in an action for harboring a runaway slave, and aiding him to escape, has decided that Pennsylvania, since the passage of the Act of 1780, is a free State; and that the principles of the common law do not sustain any such action there. 10 Barr., 514, 516, 519, Kauffman vs. Oliver. The Act of March 3rd, 1847, goes still further, and prohibits the State courts, and State officers, from rendering any assistance in the arrest and recovery of fugitive slaves, and inflicts a punishment upon the master who shall arrest his slave and carry him away againt his will. This being the state of the law in [**15]  Pennsylvania, it must be remembered that the Northern Central Railway Company, so far as its operations are conducted within the limits of the State of Pennsylvania, is a Pennsylvania Corporation, subject to Pennsylvania laws. The original charter (Act of 1827, ch. 72) of the Baltimore and Susquehanna Railroad Company, (the only one of the consolidated companies whose road lies in Maryland,) provides, by sec. 12, that its by-laws shall not be contrary to the laws of any of the States assenting to that Act, and sec. 23 makes the provisions of the Act to be wholly in force after the organization of the company, as to all the property of the company, "which may be situated or may be within the State of Maryland." And the Maryland consolidation Act, of 1854, ch. 250, sec. 1, provides, secondly: "That all laws heretofore made in reference to the said Baltimore and Susquehanna Railroad Company, and not repealed or modified by the Legislature of Maryland, and all ordinances relating to said company heretofore made and not repealed by the Mayor and City Council of Baltimore, shall be binding and operative upon said consolidated company, so far as its operations may be within the jurisdiction [**16]  of the State of Maryland, or the city of Baltimore respectively, and so far as the said laws or ordinances may be applicable to, and consistent with, the new organization of the said consolidated company." And the Pennsylvania Act of consolidation, of 1854, No. 531, sec. 1, provides as follows: "Second, that all Acts of the General Assembly of Pennsylvania, heretofore made and not repealed or modified, relating to either of the said companies, shall be binding upon the said consolidated company, so far as its property or its operations may be within the jurisdiction of this State." By this it appears, that by the consolidation of these several companies by the States of Maryland and Pennsylvania, neither State intended to extend its laws where they did not reach before. But the design of each State was to retain the operation of its own laws upon so much of the consolidated road as lay within such State. And as the part of the road over which this slave was carried, if carried at all, by the defendant, lay entirely within the State of Pennsylvania, this case must be governed entirely by the laws of Pennsylvania, except in so far as these laws are controlled and modified by the Constitution [**17]  and laws of the United States. That the defendant is not a Maryland corporation, as to its operations conducted in Pennsylvania, is shown not only by the legislation above referred to, but also by the cases State vs. Boston, Concord & Montreal Rail Road Co., 25 Verm., 442, and Runyan vs. Coster's lessee, 14 Pet., 129. When a corporation acts by agent in another State, his acts must be tested by the law of the State where he acts. 13 Pet., 589, 588, Bank of Augusta vs. Earle. 9 Pet., 607, 627, Owings vs. Hall. The charter is a contract, and in its construction it is necessary to look to the place where it is to be performed. 2 H. & J., 228, De Sobry vs. De Laistre. 6 Pet., 203, Cox & Dick vs. The United States. 4 Johns., 288, Thompson vs. Ketcham. 2 Burr., 1078, Robinson vs. Bland. It makes no difference that this case is tried in a Maryland forum. The rule is, that the lex fori applies as to the remedy, but the lex loci contractus as to the right. 3 G. & J., 234, Trasher vs. Everhart. Now the act complained of in this case was committed in Pennsylvania, where slavery does not exist, and where the rights of the slave owner are not only not respected, but all the administrative powers [**18]  of the State are withheld from him when seeking to regain his slaves. Apart, therefore, from the remedy provided by the Constitution and laws of the United States, there would be no redress for injuries of the sort complained of in this action. 2 Barn. & Cress., 448, 462, Forbes vs. Cochrane. 16 Pet., 611, Prigg vs. Commonwealth of Pennsylvania. 2 McLean, 601, Jones vs. Vanzandt. 6 Amer. Law Reg., 439, Rodney vs. Illinois Central Rail Road Co. But if the action can only be maintained under the Acts of Congress, it cannot be maintained at all. In order to bring the case within the scope of these Acts, it must be shown that the defendant was guilty of "harboring and concealing" the slave, "after notice" that he was a fugitive from labor. Acts of Congress of 1793, ch. 7, sec. 4, and 1850, ch. 60, secs. 6, 7. But the defendant did not receive the notice required by these Acts. 1 Amer. Law Reg., 149, Oliver vs. Kauffman. 5 How., 225, Jones vs. Vanzandt, and same case in 2 McLean, 607. 2 Barn. & Cress., 458, Forbes vs. Cochrane. And the selling the ticket was not "harboring and concealing," within the meaning of these Acts, as the same authorities show. Therefore this case is not one of [**19]  those for which Congress has provided a remedy. And even apart from this view of the case, the court erred in refusing to grant this prayer, because, in effect, it only asked the court to instruct the jury, that if they found that the ticket agent acted fairly and in good faith, in the sale of the ticket, the plaintiff was not entitled to recover. The color of the negroes raised no suspicion in Pennsylvania of their being slaves, but, on the contrary, they were to be presumed to be free. And the ticket agent might very well, in good faith, have declined to act upon the unauthorized statement of a mere stranger--as Mr. Epply admits he was--in view of the fact that, as common carriers, these roads were bound to carry the negroes, unless they were believed to be slaves. Story on Bailments, sec. 591. 1 Parsons on Cont., 696. Redfield on Railways, 261, 262. An action at common law, for harboring servants, required actual notice that they were servants. 6 Term Rep., 221, Blake vs. Lanyon. 2 Barn. & Cress., 458, Forbes vs. Cochrane. Even in South Carolina it has been held, that the act must be negligent and without knowledge of the owner of the slave not consenting to it. 4 Richardson, 156,  [**20]  Sill vs. South Carolina Rail Road Co. And in Maryland, before the Act of 1838, ch. 375, negligence, actual or constructive, was required. 6 G. & J., 291, Steam Nav. Co. vs. Hungerford.

3rd. The fifth prayer required the court to instruct the jury that the plaintiff was not entitled to recover, unless they believed that the act complained of was the efficient cause of the slave being lost to his owner. The slave, at the time of the transportation by means of the ticket purchased by him at Hanover, had already effected his escape. If he had remained in Hanover, or if he had gone thence by some other way, non constat that his master would ever have recovered him. In fact, the evidence of Mr. Epply shows that it is very probable he would not. And the jury were at liberty to find one way or the other. It was very proper, therefore, that they should be instructed, that the mere fact of his being carried by the defendant from one part of Pennsylvania to another, was no ground for the plaintiff's recovery, unless they also found that it was in consequence of his being so carried that his recovery was prevented. 1 Greenlf. on Ev., secs., 256, 261.

4th. The ninth prayer is based upon [**21]  and is a conclusion drawn from, the position contended for by the appellant in regard to the fourth prayer. If the appellee's right of recovery is derived from and given to him by the Constitution of the United States and the Acts of Congress, then the Federal courts are the proper tribunals in which to have these laws administered. 10 Barr., 514, Kauffman vs. Oliver. 6 Amer. Law Reg., 441, Rodney vs. Illinois Central Rail Road Co.

The appellant therefore contends, that the judgment of the court below ought to be reversed, if this court shall be of opinion, either:

1st. That the defendant ought not to be held liable for the acts of the Hanover Branch Company.

2nd. Or that the appellee's right to recover must depend upon the Constitution and laws of the United States.

3rd. Or that a sale of the ticket, by the ticket agent at Hanover, in good faith, and without being satisfied that the person purchasing it was a slave, constituted no ground of recovery.

4th. Or that the sale of the ticket, or transportation of the slave, worked no injury to the owner, unless the escape was caused thereby.

5th. Or that the federal courts alone had jurisdiction of the controversy.  [**22]  

Wm. Schley, for the appellee, argued:

1st. The second prayer of the appellant was properly rejected. The ticket agent at Hanover, in making sale of a through ticket, acted as an agent of the defendant, and such is the true construction and effect of the third article of the contract between the companies. He was not merely an agent pro rata intineris, as this prayer asserts. But if he was only an agent pro tanto, the distinction makes no difference, inasmuch as the prayer concedes that the slave passed over the defendant's road, from the Hanover Junction to York, by virtue of the same ticket, which enabled him to travel as far as the Junction in the cars of the Hanover Branch company. Now the agreement shows, that the issue of such tickets was within the scope of the authority of the agent, whose appointment was conferred by the defendant. The ticket faciliated the escape. See, for illustration, Arnold vs. Cost, 3 G. & J., 233. The selling of the ticket was a tort, and the doctrine of contract, in reference to separate companies selling through tickets, has no application to this case.

2nd. The fourth prayer was properly refused. The notice given by Epply, if found by [**23]  the jury, was sufficient, at least, to impose the duty of withholding the ticket until further inquiry. Even if the inference might otherwise have been made, from the refusal of this prayer, that the court intended to ascribe a legal effect to the notice, per se, independently of its influence on the mind of the agent, the granting of the defendant's sixth prayer excluded any such inference. But, in support of the refusal of the prayer, I respectfully insist that it was the duty of the defendant to have made reasonable regulations in this behalf, and that it was gross negligence, under the circumstances, to have permitted these negroes to receive tickets, and travel in the cars. 6 G. & J., 291, Steam Nav. Co. vs. Hungerford. 2 H. & G., 182, Ferguson vs. Tucker. 2 Halsted, 253, Gibbons vs. Morse. 2 McLean, 604, Jones vs. Vanzandt, and same case in 5 How., 215. 4 Richardson, 154, Sill vs. South Carolina Rail Road Co. 6 Term Rep., 221, Blake vs. Lanyon. 1 B. Monroe, 292, Johnson & Co. vs. Bryan. The laws of Pennsylvania prohibit slavery only so far as its own people are concerned. Under the Constitution of the United States, the laws of that State cannot interfere with fugitive slaves [**24]  from other States. A slave does not become free by running away into a free State, nor are the rights of the slave owner over him lost by such act. See 5 How., 230, 231, and the Dred Scott Case. The slave in this case, being a slave in Maryland, was a slave in Pennsylvania,--nothing altered his status. If, in Pennsylvania, a suit had been brought in trover for this slave, and the courts and jury had enforced the law, the master could have recovered. Unless the Constitution and laws of the United States are to yield to those of Pennsylvania, the wrong done there is just as much a wrong as if done in Maryland.

3rd. The fifth prayer was properly rejected. Any unwarranted dealing with the slave was unlawful and entitled the owner to sue in trover. A wrong-doer has no right to throw upon the injured party the onus of establishing that the injury was wholly the result of his act. If it contributed to produce the injury there was actual damage pro tanto, and even legal damage would sustain the action. 1 Chitty's Pl., 140, 141, 154. 7 H. & J., 60, Cromwell vs. Owings. 2 H. & J., 347, Hay vs. Conner. 9 Gill, 12, Hacker vs. Dement.

4th. The ninth prayer was properly rejected, and was [**25]  unwarranted by the Act of Congress to which it refers. The action in this case is an action of trover, grounded upon the common law alone, and is not brought under our Act of 1838, ch. 375, nor under the Act of Congress. The act complained of was the selling of the ticket to this slave, which was an unwarranted dealing with the property of the plaintiff, entitling him to bring the action of trover therefor at common law. The cases already cited abundantly establish this position. The Act of Congress gives a special remedy in certain specified cases and forms of action, but it does not oust the jurisdiction of the ordinary tribunals. A party may sue a defendant for a tort done any where, whenever he can catch him in the State, and within the jurisdiction of our courts. He may sue him in the ordinary way, and before the ordinary tribunals, for a wrongful act done in another State.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*346]  LE GRAND, C. J., delivered the opinion of this court.
This suit was brought by the intestate of the appellee against the appellant, to recover the value of a slave for life, belonging to said intestate, and [**26]  lost to him, by being transported in the cars over the railway of the appellant. The declaration contains two counts; the first of which alleges, 

 [*347]  that the appellant transported said slave in its cars, whereby he was enabled to escape, and did escape, and was wholly lost to the plaintiff; the second count was in trover. The plea was, not guilty, on which issue was joined. It was agreed that all errors in pleading should be released; and, also, that all statutes of Maryland and of Pennsylvania might be read from the printed statutes of those States.
Proof was given, at the trial, of the ownership and value of the slave, and that the slave was last seen at the home of his master, in Frederick county, Maryland, on the evening of Whitsunday of 1855; and that he was next seen on Whitmonday, in Hanover, Pennsylvania, by a Mr. Epply, in company with two other slaves, who had also run away, at the same time, from the same neighborhood in Frederick county. At the time Mr. Epply saw them, all three slaves were in the ticket office of the Hanover Branch Railroad; and one of the other slaves had applied for, and had obtained, a ticket for Little York, Pa. The agent of the railroad [**27]  then inquired of the slave to whom he had sold a ticket, whether the others wanted tickets also. Being answered in the affirmative, the agent proceeded to prepare for the last mentioned slaves, two tickets, and whilst so employed, Mr. Epply asked him, "How he came to give those boys tickets, not knowing whether they had permits, or were free or slaves?" He replied, "That it was not his business to enquire," and added, "that if a black man called for a ticket, and paid for it, he had as good a right to a seat in the first class cars as any other man." Epply told the agent that the boys were runaways and that he wanted to arrest them. It was after this notice, given by Epply,--according to his testimony,--that the ticket was given to the slave of the intestate of the appellee. Mr. Lieb, the agent, testifies the ticket was sold before the notice was given to him. The ticket purchased by the slave was a through ticket to York, by which he was entitled to travel over the appellant's road. There is no direct evidence how far the slave travelled on either the Hanover or the appellant's road; he was never heard of after the starting of the cars from Hanover. Evidence was given of articles [**28]  of agreement 

 [*348]  entered into on the 12th day of April 1855, between the Northern Central Railroad Company and the Hanover Branch Railroad Company. By the third article of the agreement, the Northern Central Company was to provide an agent, whose duty should be, "to forward and deliver all tonnage at Hanover, to receive and collect the freight thereon, to sell all passenger tickets, and to receive the revenue therefrom accruing from the joint operations of the two companies."
The plaintiff offered one prayer, which was refused; and the defendant nine prayers, of which, the first, third, sixth, seventh and eighth were granted, and the second, fourth, fifth and ninth were rejected.
When the instructions which were given to the jury at the request of the defendant are duly considered, to entitle it to a reversal of the judgment rendered against it, one of two proposition must be made out to the satisfaction of this court. Either, that as the sale of the ticket, and the transportation of the slave, took place within the limits of the State of Pennsylvania, and without those of the State of Maryland, there can be no recovery for the escape of the slave, because [**29]  slavery is not recognized in Pennsylvania; or, that the jurisdiction of the alleged tort is vested, by the Act of Congress of 1850, chapter 60, exclusively in the District Court of the United States for Pennsylvania, within whose jurisdiction the said alleged tort was committed.
All the other propositions, contended for by the appellant, it had the benefit of, in the directions given by the court. Indeed, instructions were given to the jury which, in our opinion, were not authorized by the law of the case. In granting the sixth prayer of the defendant, the court gave it every possible advantage; it told the jury if they were of the opinion the slave had escaped from his master into Pennsylvania, and at the time of the sale of the ticket to, and the transportation of, the slave, there was no fact within the knowledge of the defendant, or its agent, to warrant the presumption that the negro was a slave but his color, then the plaintiff could not recover. This direction gave it every advantage to be desired from want of knowledge on the part 

 [*349]  of the defendant and its agent, and from the laws of Pennsylvania, which do not recognize slavery in negroes. The second [**30]  prayer of the defendant was properly rejected for the reason, if for none other, that it does not give a proper construction to the articles of agreement between the Hanover road and the defendant. It makes the agent, "as to all sales of through tickets made by him, the agent of the Hanover Company, so far as said tickets authorized a passage over the road and in the cars of said Hanover Company." The articles of agreement make no such partition of the agency; all that it provided for, is, the partition of the proceeds of sale, &c., between the companies. The appointment of the agent is with the defendant, and it alone must be held responsible for the manner in which its appointee discharges his duty. The fourth prayer was also properly rejected; it, in point of fact, denied the sufficiency of the information derived from Mr. Epply, to put the agent on the inquiry whether or not the negro was a slave. If the jury believed the testimony of Epply, nothing, except the title papers to the negro, could have been more specific and positive than were his declarations to the agent, or better calculated to awaken the caution of the latter. The fifth prayer makes it incumbent upon the plaintiff [**31]  to establish, to the satisfaction of the jury, that the loss of the slave was attributable, wholly, to his being transported from one place to another in Pennsylvania, and that but for such transportation he would not have been lost to the plaintiff. This prayer, if granted, was well calculated to mislead the jury. It is quite possible that had the negro not gone over the railroad that he may have escaped in another direction. That which is complained of is not the passiveness of the defendant, but its active co-operation in facilitating the escape of the slave. By the sale of the ticket he was permitted to travel over the road; and after he had qualified himself by the possession of the ticket to travel, he escaped by the means which it afforded him to do so. There is no evidence whatever in the case, going to show, that he made his escape through any other instrumentality than that of passing over the road of the defendant. If the defendant 

 [*350]  aided him in his escape from service, it matters not who assisted in it, the defendant would still be responsible. The ninth prayer asserts the proposition, that inasmuch as slavery does not exist in Pennsylvania, except as to [**32]  fugitive slaves, and because of the provisions of the Act of Congress of 1850, chapter 60, the jurisdiction of the tort complained of is vested in the District Court of the United States for Pennsylvania.
There is no doubt that it is with the courts of Pennsylvania to determine, whether or not they will enforce the laws of Maryland on the subject of negro slavery. The whole matter rests in comity, and, in extending it in any particular case, a foreign tribunal always gives due weight and influence to the spirit and policy of its own institutions. But this case calls for no application of the principle of comity. It is not an appeal to the courts of Pennsylvania, but one by a citizen of Maryland to the courts of his own State.
There is nothing in the Act of Congress of 1850, chapter 60, confining the jurisdiction of torts, like the present, to the federal courts. The seventh section of the Act, which allows damages to the amount of one thousand dollars in certain cases, and which confers jurisdiction on the District courts in action of debt, does not touch the question of value of the escaped slave; that is left where it was previously. Nor, is there anything in the principles [**33]  of the common law which ousts the jurisdiction of the courts of Maryland, in cases of personal tort committed without its limits. Ever since the celebrated case of Mostyn vs. Fabrigas, Cowper, 161, it has been uniformly held, both in England and this country, that personal torts, committed against a subject of Great Britain, or a citizen of the United States, in a foreign country, may be redressed by action against the wrong-doer, in the courts of England, or the State courts of the United States. In the case referred to Lord Mansfield suggested a doubt, whether the jurisdiction would exist where neither of the parties were subjects of Great Britain, and the injury was done without the realm; and this doubt, after a very full and able argument, was resolved, on principles of public 

 [*351]  policy, in the negative, in the case of Malony vs. Dows, reported in Abbott's Reports of Practice Cases, 316. It was there determined, that the courts of one State or country have no jurisdiction of actions between citizens of another State, for damages for purely personal torts committed within the jurisdiction of another State. There, the plaintiff and defendant [**34]  had been citizens of the State of California, and the false imprisonment and other wrongs complained of were committed in that State. The court, in New York, whilst recognizing the doctrine of the decision in Mostyn vs. Fabrigas, nevertheless held, that, whether or not it took jurisdiction of a case between citizens of another State, for a wrong done in such other State, was a question to be settled in the discretion of the court, according to what might appear to be the best policy and most conducive to the general good; holding, in the particular case, California, and not New York, to be the proper place where the matter should be investigated and adjudicated. This is a transitory action, and the venue may be laid in any county of the State. Robinson & wife, vs. Armstrong, 34 Me. 145. In all actions for injuries, ex-delicto, to the person, or to personal property, the venue is in general transitory, and may be laid in any county, though committed out of the jurisdiction of the court, or out of the King's dominions. 1 Chitty's Pleadings, 269, marginal, (Ed. of 1851.)
In the case before the court, the plaintiff is a citizen of Maryland, and [**35]  his right of property in his negro slaves is recognized by the Constitution of the United States, which is the supreme law of the country; and whilst it is perfectly competent to Pennsylvania, or any other State, to prohibit within its borders, negro or any other kind of slavery of the person, yet, it is beyond its power to authorize its inhabitants, or others, to assist in despoiling its neighbors of their property in slaves. It may, if it pleases, forbid its courts to grant redress for the wrong, but it cannot oust the jurisdiction of the courts of the State of the injured party. Whenever the wrong-doer comes within its limits, he is liable to be made answerable for his tortious acts.

 [*352]  Considering that the defendant had the benefit of every instruction it was entitled to, and that the evidence was sufficient to authorize the jury in finding as they did, we see no reason why the judgment should be disturbed. Although slavery be not established by the laws of Pennsylvania, it is recognized, and its protection guaranteed, by the Constitution of the United States; and a railroad company, in Pennsylvania, has no more right, knowingly, to assist in the escape of a runaway slave, [**36]  than a wagoner on the high road.
Judgment affirmed. 

82 of 196 DOCUMENTS 

EDWARD LANE, and MARY his wife, vs. PETER FALLEN, and ANN his wife.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 352; 1860 Md. LEXIS 72 

July 11, 1860, Decided 

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

The bill, in this case, filed on the 8th of June 1857, by the appellants against the appellees, alleges, that before the intermarriage of the complainants, the said Mary loaned money to the said Ann, who had a separate estate, consisting of real and leasehold property, to assist the said Ann in improving her property; that a part of the money was returned and the note of the said Ann, for $ 62.32, was given to the said Mary for the balance, and the bill prays that the said Ann may be decreed to pay this note out of her separate estate, and for general relief.

The defendants, in their answer, admit the borrowing of the money and its application to the payment for improvements on the said Ann's property, and the execution of the note for the balance due, but they deny that the money was borrowed for that purpose, and they allege that the said Mary, before her marriage with the said Edward, boarded with the defendants and was indebted to them on that account, in the sum of $ 71.37, for which said sum the defendant, Peter Fallen, recovered a judgment on warrant before a Justice of the Peace, against the complainants, Lane and wife,  [**2]  which is still unpaid and unsatisfied, and which the defendants plead in bar to any claim the complainants may have against them, or either of them, and they deny the power of the said Ann to contract in manner and form as alleged by the complainants, or that she intended to charge her separate estate, or that the same is responsible at law or in equity for this pretended claim of the complainants.

A general replication was filed to this answer, and a commission to take testimony was issued, under which it was, among other things, proved, by the magistrate who rendered the judgment against Lane and wife at suit of Peter Fallen, that, within the time prescribed by law for taking appeals, the attorney for the defendants gave notice of an appeal from this judgment and an intention to file a bond, but never did so. The deed of trust, under which the defendant, Ann Fallen, claims her separate estate, conveys a house and lot to a trustee, "in trust, nevertheless, for the sole and separate use and benefit of the said Ann Fallen, without the let or control of her present, or any future husband, and with full power and authority to her, whether sole or covert, to sell or otherwise dispose [**3]  of the same by any instrument of writing in the nature of a deed or will." The court (KREBS, J.) on passing the decree appealed from, delivered the following opinion:

"I am of opinion that the judgment, pleaded in this case, by the defendants, is a bar to the claim of the complainants. It exceeds in amount that claim. The claim upon this judgment is of such a character as to bring it within the principles established by courts of equity in reference to the allowance of counter claims, or discounts in bar. The complainants have offered evidence for the purpose of proving that this judgment should not be regarded, by this court, as conclusive against them, because they were prevented, by surprize, from availing themselves of the privilege of appeal therefrom, and thus deprived of the opportunity of showing that it was erroneous, and that the claim which it established was unjust. But there is nothing in the pleadings upon which a right to be relieved from the judgment, on that ground, can be sustained. There are no statements in the bill anticipating the production of this judgment as a bar or set-off to the claim of the complainants, and setting forth, in advance, the facts and [**4]  circumstances constituting the surprize relied upon against the conclusiveness of the judgment, nor are they set up in any other form in the pleadings. Under these circumstances, I must regard this judgment as in full force, and, therefore, a bar to the demand of the complainants in a court of equity. Entertaining these views upon this point, it is not necessary for me to decide the other questions that have been discussed at the hearing."

A decree was then passed, dismissing the bill with costs, from which the complainants appealed.  

DISPOSITION:
Decree affirmed, with costs to the appellees.  

HEADNOTES:

A feme sole loaned money to a feme covert, who had a separate estate, to assist her in improving her property. For a part of the money so loaned the feme covert gave her note. The feme sole then married, and she and her husband filed a bill against the feme covert and her husband, praying that this note might be paid out of her separate estate. The defendants pleaded in bar, and as an off-set, a judgment for a larger amount, recovered by the husband against the complainants for the board of the feme sole, before marriage. HELD: That this judgment was a proper off-set to the complainant's claim.  

COUNSEL:
L. M. Reynolds, for the appellants, argued:

1st. That the money, mentioned in the bill, was borrowed by the defendant, Ann, of the complainant, Mary, and by the former expended in improving her separate estate, and that estate is liable for the payment of the note and interest. By the terms of the deed of trust to her, she has the power to sell, which includes the power to charge, and the only question, then, is, did she charge her separate estate with this debt? She appropriated the money to the improvement of her house, and it went into, and now composes, a part of her separate estate. The [**5]  money of Mary having been used in paying debts incurred in building the house, she became substituted for the persons doing the work and furnishing the materials. For authorities to sustain the liability of this separate estate for this claim, see Willard's Eq., 646; 2 Story's Eq., secs. 1398, 1400, et seq.; 7 Paige, 13, North American Coal Co. vs. Dyett; 22 Wend., 528, Gardner vs. Gardner; 7 H. & J., 302, Price vs. Bigham's ex'cr.

2nd. That the judgment filed in bar by the defendants is not such a claim as can be properly the subject of set-off to the complainant's claim; because, 1st, it is not a final judgment, and is not, therefore, of itself evidence of liquidated damages. The general replication put in issue the validity of this claim for set-off. The evidence of the magistrate shows that the complainants had taken their appeal from it. On the trial of that appeal, the defendant, Peter, would have had to prove his case exactly as though it had never been tried before the magistrate. 2nd. The claim of the defendant, Peter, (if it were a final judgment,) against the complainants, and the claim of the complainants against the seperate estate of the defendant, Ann, are not mutual [**6]  and due in the same right. Admitting, therefore, the judgment to be final, it is no bar to the complainant's claim. The wife of the complainant, and the husband of the defendant, are mere formal necessary parties to this proceeding. 2 Story's Eq., sec. 1368. 2 Bright on Husband & Wife, 255. One side of the case stands exactly as if the bill had been filed by, and is in law the claim of, Edward Lane against Ann Fallen, and it would be perfectly competent for Ann to set off or plead in bar any claim she might have, or might have purchased, against the said Edward, or against him and his wife; but I deny that Ann can say to Edward, "I will not pay you my note, held by you, unless you pay a judgment my husband has against you." The effect of that law would be, in case of the death or insolvency of Peter and Ann, that the creditors or distributees of Ann would gain what the creditors or distributees of Peter would lose. That Peter assents to this arrangement does not help it, because he still retains in himself the property in the judgment. Suppose a creditor of Peter were to attach the judgment in the hands of Edward, and a creditor of Edward were to attach the note in the hands of Ann,  [**7]  could Edward plead his claim against Ann to the attachment of Peter's creditors, or could Ann plead the judgment to the attachment of Edward's creditors? I submit that they could not, that Ann must pay her note to Edward's creditor, and if Edward should happen to be insolvent, then Peter's creditor is no worse off than before. 3 Md. Ch. Dec., 65, 71, Robertson's Ex'cr vs. Parks. 4 Md. Ch. Dec., 13, Watkins vs. Zane. 12 G. & J., 51, Hall vs. Cresswell.

T. Parkin Scott, for the appellees, argued:

1st. That the power of Ann Fallen to dispose of her trust estate, is restrained by the terms of the deed of trust, to be "by any instrument of writing in the nature of a deed or will," and she could dispose of, or charge it, in no other way. 11 Md. Rep., 503, 506, Cooke vs. Husbands.

2nd. That if she had authority to charge her estate in any other manner, which is denied, yet there is no evidence to show that in giving her note to the appellant, Mary, she intended so to charge it. 1 Md. Ch. Dec., 213, Conn vs. Conn.

3rd. That the judgment obtained by the appellee, Peter Fallen, against the appellants, was for a debt contracted by the said Mary to the said Ann, and is in full [**8]  force and effect, no appeal having been prosecuted; and that in a suit at law by the appellants against said Peter on the note of his wife, this judgment would have been pleadable as a set-off; and that, under all the circumstances, it is a good defence in equity.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*356]  ECCLESTON, J., delivered the opinion of this court.
The decree appealed from dismissed the bill, upon the 

 [*357]  ground, that the judgment presented in defence is a proper set-off against the claim of the complainants. Believing, as we do, that the circumstances disclosed by the record are sufficient to sustain the decision below, the decree will be affirmed. See Smith & Talbott vs. Donnell, 9 Gill 84. Ferris, et al., vs. Burton, 1 Vt. 439, 455.
Decree affirmed, with costs to the appellees. 

83 of 196 DOCUMENTS 

CHRISTIAN KEENER vs. HIRAM H. KAUFFMAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 296; 1860 Md. LEXIS 67 

June 29, 1860, Decided 

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

Trespass quare clausum fregit, brought on the 7th of December 1852, by the appellant against the appellee. Plea non cul., and defence on warrant. A warrant of re-survey was issued, and plats, containing the locations, made and returned, with testimony taken on the survey. It was then agreed that the plea of liberum tenementum, shall be conceded to have been pleaded by the defendant.

Exception. Much testimony, oral and documentary, was offered on both sides. It appears from it that the defendant had the paper title. The plaintiff proved possession under a contract of purchase from Nathan Tyson, dated the 23rd of June 1851. He then proved the removal of the fence from the place where it was standing before this suit was brought, and the commission of the trespass by the defendant. He further proved that the fencing about the land, as located by the plaintiff, was put there in 1817, by Jessop, as far as concerns the northern line thereof, the land of Jessop and the land in dispute being adjacent; that the land in dispute was in wood and was enclosed by George Ellicott, deceased, his outer fencing being run up to the fencing [**2]  built by Jessop; that Nathan Tyson, who married the daughter of George Ellicott, held possession of the land as agent for said Ellicott before his death, which took place in 1832, and continued in possession after his death till the sale to the plaintiff, and that there was no other boundary known between said Ellicott and the adjoining lot north; that the enclosure was uninterrupted from 1816 or 1817, down to the year 1845, when the fences needed repairing.

The defendant proved by George Myers, that he had known the land in controversy about fifty-six years, and bought his lot adjoining in 1836, which he held till 1851, and lived on it about eighteen years; that, in 1843, the fence enclosing the land in controversy was down, and the lot was pastured by people from town with old horses and cattle, and it remained for two years a common; witness saw the property every day, and put up the fence after it had been open for two years. This witness further proved that he had a conversation with Nathan Tyson, under whom the plaintiff claims, in the year 1851, when said Tyson offered to sell witness the land belonging formerly to George Ellicott, and said there was a lot of two or three [**3]  acres adjoining which he did not claim, and it was more than probable that whoever got his (Tyson's) lot would get this, (the two or three acres,) as there was no owner for it. To the admissibility of this conversation the plaintiff objected, but the court overruled the objection and permitted the same to go the jury. Myers then further proved that the land in dispute never was cultivated by Ellicott or Tyson, or any one else, whilst they held it in possession, and that the stumps on the land were only removed by the plaintiff after he purchased from Tyson. The defendant further proved by John Nicholson, that he (the witness) purchased in 1851, from Nathan Tyson a lot of land, when Tyson requested witness to buy the land afterwards sold by him to the plaintiff, and said that whoever did buy it might get the lot adjoining, to which he could give no title, as he had none to it.

The plaintiff then proved by Nathan Tyson, that he might have had a conversation with Myers, as testified to by the latter, but has no recollection that he ever had; that he held the land as agent for George Ellicott, and told the plaintiff when he sold to him, that persons had informed him that there was [**4]  a difficulty about the title to some part of it, but he thought it belonged to George Ellicott. He also proved by James Tyson, that some time before 1845, Myers complained to witness of the condition of the fence enclosing this land, and, as well as witness recollects, there were not more than three pannels missing, and that $ 125 paid for the whole of the repairs. The plaintiff also proved, by Joshua Jennings, that the fences were only in the condition of other fences when rotten, and then asked three instructions to the jury as follows:

1st. If the jury believe, from the evidence, that the plaintiff was in possession of the property located as his premises, and find that the trespass, as alleged in the declaration, was committed by the defendant, and that the defendant took down and removed the fence, referred to by the witnesses, from its original position, while the plaintiff was so in possession, and put it up in its present place, then the plaintiff is entitled to recover such damages as the jury find, from the evidence, he shall have sustained.

2nd. That if the jury find, from the evidence, that George Ellicott was in possession of the property, as located within the [**5]  plaintiff's premises, in the year 1817, by actual enclosure and by the use and cultivation of the property so enclosed; and if the jury further believe, from the evidence, that he so continued in the possession of the same by himself, or his tenants, until April 1832, and that about that date Ellicott died, and that Nathan Tyson having, previous to that event, intermarried with the daughter of said Ellicott, continued in possession subsequent to that time until the year 1845, and that the plaintiff bought the same by contract, dated the 23rd of June 1851, and took possession under the same, that then the entry of the defendant is barred, and the plaintiff would be entitled to recover.

3rd. If the jury find, from the evidence, that George Ellicott entered upon the actual possession of the land as located by the plaintiff on the plats, in this cause, and enclosed the same by fences, as stated in the proof, in the year 1817, and having thus enclosed it, occupied, used and cultivated it, and so continued in the occupation, use and cultivation thereof until his death, on the 4th of April 1832, and if the jury further find, from the evidence, that Nathan Tyson intermarried with the [**6]  daughter of said George Ellicott, who was living at the death of her father, and that her husband, the said Nathan Tyson, immediately after the death of the said Ellicott, entered upon the possession of the said lot and occupied, used and cultivated it, in the same manner as did the said George Ellicott, and continued so to do with the said fences up until the year 1845, then the jury are bound to presume a deed of the piece of land in dispute in this cause, from the defendant, or those under whom he claims, to the said Tyson.

The court (PRICE, J.) rejected all these prayers, and verbally instructed the jury, that the will of George Ellicott was like a deed of bargain and sale, which would not operate at law to render the possession of the devisee continuous with that of the devisor, and would not in law constitute the same possession, and that the one must, therefore, in estimating the period of limitations, be taken as distinct from the other, and could not be added together so as to make one possession.

The plaintiff excepted to the rejection of his prayers, and to the overruling of the objection to the testimony of George Myers, above stated. The verdict and judgment [**7]  were in favor of the defendant, and the plaintiff appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Where, to the plea of liberum tenementum, the plaintiff replies specially, a term created by the defendant, the freehold of the latter is admitted with the assertion of a right of possession in the plaintiff under the term, and under that issue the plaintiff's right of possession is the question to be decided.

But where issue is joined on the plea of liberum tenementum, the freehold of the defendant is in issue and the jury have nothing to do with the right of possession, because the plaintiff's traverse of the plea admits the defendant's right to the possession, if the jury find him entitled to the freehold.

If there be evidence explaining the character of an entry and possession by enclosure for twenty years, by the plaintiff, and those under whom he claims, an instruction that this is sufficient to bar the entry of the owner, without leaving it to the jury to ascertain the fact of adverse possession, from all the proof in the case applicable to that question, is erroneous.

In such a case it is for the jury to ascertain the fact of adverse possession, from all the proof in the case, embracing the intent with which the entry was made, the nature of the possession, and the acts of ownership, conduct and declarations of the party under whom title by possession may be claimed.

The declarations of a man respecting his title, made before he parts with his estate, are evidence against him and all claiming under him.

Where a plaintiff relies on title by possession, which must be adverse to the owner, the declarations of one of the occupants under whom he claims, as to the character and extent of the possession, showing that such occupant entered without claim of title, are admissible in evidence against the plaintiff.  

COUNSEL:
J. C. King and G. L. Dulany, for the appellant, argued:

1st. The appellant's first prayer is based on the general principle, that possession alone is sufficient to maintain an action of trespass against any person but the real holder of the legal title, which the defendant is required to establish in himself. 1 Chitty's Pl., 176. 1 East., 244, Graham vs. Peat. 11 East., 65, 67, Chambers vs. Donaldson. 4 Taunt., 547, Catteris vs. Cowper. The plea of liberum tenementum admits the possession to be in the plaintiff. 2 McCord, 226, Caruth vs. Allen. 1 Chitty's Pl., 503, 529. 1 Saunder's Pl. & Ev., 299, e.

2nd. The second prayer is based on the evidence of exclusive possession in the plaintiff, and those under whom he claims, from the year 1817 down to the bringing of the action. Ellicott held possession from 1817, by himself and Tyson, his agent, till 1832, and this possession of Ellicott and Tyson, by the agency of Tyson, and his intermarriage with the daughter of Ellicott, before his death in 1832, may well be tacked, and the privity of title was thus sustained sufficient to make the possession [**8]  continuous for the full period of more than twenty years, and the entry of the defendant was consequently barred. 1 H. & J., 545, Gibson vs. Martin. 5 Md. Rep., 247, Hoye vs. Swain. 1 Johns., 156, Brandt vs. Ogden. 16 Johns., 293, Jackson vs. Thomas. 19 Vermont, 164, 169, Winslow vs. Newell. 6 Pick., 410, Ward vs. Bartholomew. 6 Metcalf, 407, 412, Wade vs. Lindsey. 5 Metcalf, 15, 32, Melvin vs. Proprietors, &c. 9 Barr., 194, 196, Moore vs. Small. 5 Barr., 126, 131, Scheetz vs. Fitzwater. 7 Sergt. & Rawle, 177, Overfield vs. Christie. 11 G. & J., 361, Wilson vs. Inloes.

3rd. The third prayer is to the effect that the facts embraced in the second prayer will justify the jury in presuming a deed of the piece of land, in dispute in this case, from the defendant, and those under whom he claims, to Tyson, and for this see 1 Gill, 505, Casey vs. Inloes; 1 Cowen, 609, Jackson vs. Camp; 5 Md. Rep., 273, Armstrong vs. Risteau.

4th. The testimony of Myers is excepted to as allowing the declarations of Tyson, not made in the presence and hearing of Keener, to affect the operation of his subsequent grant to Keener. They were offered as a disclaimer of title and proof of ownership in a [**9]  third party. The declarations are not confined in their effect to an explanation of the possession, but to prove title, which title the defendant is bound to prove as subsisting in himself, by the requisite mode and by the best evidence. 8 Gill, 30, Maslin vs. Thomas. 9 Gill, 12, Harker vs. Dement. 5 Cowen, 133, Jackson vs. Davis. 7 Johns., 186, Jackson vs. Vosburgh. 10 Johns., 358, Brant vs. Livermore.

Benj. C. Barroll, for the appellee:

1st. The first prayer was properly rejected, because, if Kauffman had the legal title, he was not a trespasser, whether he disturbed the premises of Keener or not. Again, if Keener relied upon possession in himself, and those from whom he claimed, as giving him a title to the land, as covering a period exceeding twenty years, then the prayer should have left it to the jury to find such adversary possession. This prayer claims a verdict upon the isolated fact of Keener being in possession at the time the fence was removed, even as against the party having the legal title. There was evidence that Kauffman had the legal title, and this fact is wholly left out of view; it assumes there was no evidence of legal title in Kauffman. This prayer [**10]  is also defective in putting to the jury to find the trespass as a fact, instead of leaving them to find the facts which in law amounted to a trespass, if believed by them.

2nd. The second prayer was properly rejected, because, 1st. There was no evidence of continued uninterrupted possession by Ellicott from 1817 to 1832; 2nd. There was no evidence of actual enclosure by Ellicott, during these years, and, even if there was, the prayer does not put it to the jury to find that such enclosure continued during the period of Tyson's possession. To avail anything, the jury were bound to find a possession by enclosure during the entire twenty years. 3rd. There was no evidence of the use and cultivation of the property so in possession and enclosed by Ellicott during these years. 4th. There was no evidence that Ellicott had tenants who rented and cultivated the land during these years. 5th. To make out the twenty years possession it was not competent and lawful to connect the possession of Tyson (a stranger) with the former possession of Ellicott; there was no privity between Ellicott and Tyson. 6th. The prayer is defective in not requiring the jury to find the possession of Ellicott [**11]  and Tyson to have been an adversary possession. 10 G. & J., 443, Matthews vs. Ward. The law requires a possession which is to bar the legal owner to commence and be continued as an adversary possession under a claim of right against the legal owner. 3 Wash. C. C. Rep., 478, Potts vs. Gilbert. 7th. The prayer only requires Tyson's possession to continue up to 1845. If a party holds adversely for twenty years and then abandons that possession, the property reverts to the original proprietor--a grantor who designs to convey title by reason of twenty years adverse possession, must be in possession when he undertakes to convey. 8th. The prayer assumes the contract of sale from Tyson to Keener, and does not submit that fact to be found by the jury. 9th. The prayer asks the jury to find that Keener bought the land from Tyson by contract, when the record shows that Tyson was not the owner of the land. Keener's title has no foundation except under the deed from Tyson to him, which was not recorded till the 12th of April 1853, long after this suit was brought, and this deed was offered in evidence by Kauffman. 10th. The locus in quo was never enclosed on four sides, separate from the adjoining [**12]  land.

3rd. The third prayer is liable to nearly every objection which has been suggested against the second, and to the further objection, that it involves a mere abstraction, and if granted or rejected, was entirely irrelevant. It also submitted to the jury to find that the defendant made a deed of the land to Tyson prior to 1845, when the record shows the inception of the defendant's title to have been in March 1852. Again, why presume a deed to Tyson, who testified that he held the land as agent of Ellicott. There was no pretence that Tyson had any title, or claimed any title, to the land. A deed is never presumed, except in favor of a party who has had an adverse possession claiming title, and this is an additional reason why the time of his possession cannot be added to that of the previous possession of Ellicott to make up the twenty years. There is no evidence showing when Tyson took possession, although the second and third prayers both seem to assume that there is evidence of his having taken possession immediately after the death of Ellicott, of which fact the record furnishes no evidence whatever. At the period of Ellicott's death, he was not in any manner connected [**13]  with this land. He became a trustee under the will of Ellicott, subsequently, by taking the place of another trustee; but when this substitution took place, there is no evidence in the record. Nor is there any evidence that he used and cultivated it in the same manner as did Ellicott. The second and third prayers are fatally defective, for the reason, if for no other, that they submit numerous facts to be found by the jury not justified by the evidence in the record.

The appellee contends that where a party goes upon land as a trespasser, or without color of legal title, in order to make twenty years possession a bar, the possession must be adverse from the commencement, and with intent to make it his own by possession. In the language of the court, in Armstrong vs. Risteau, 5 Md. Rep., 279, the possession must be a hostile invasion of another's rights. He must, also, have actual occupancy and enclosures. Nor can one party tack his possession to that of his predecessor in the occupancy, in order to eke out the twenty years possession, where the party originally entering into possession, enters without title or as a trespasser, with or without a conveyance from the former to the [**14]  latter. The moment the first intruder parts with his possession, he loses the scintilla juris which his former possession gave him, and the second intruder enters as a trespasser, without color of title, and he must commence de novo his possession, exclusive, adverse, and by actual enclosure, substantial, definite, positive and notorious. There is no privity between them, and one can pass no title to the other. The questions in the case seem to be covered by the case of Hoye vs. Swan, 5 Md. Rep., 238 to 256, in which all the doctrines relating to this subject are set forth, and all the authorities are mentioned and commented upon by the court. In Armstrong vs. Risteau, 5 Md. Rep., 275, the court say: "Where different persons enter upon land in succession without title, the last possessor cannot tack the possession of his predecessors to his own, so as to make out continuity of possession sufficient to bar the entry of the owner. The possession of the one cannot be the possession of the other, because the moment the first occupant quits the possession, the legal possession of the owner is restored, and the entry of the next occupant constitutes him a new disseizor. There is no privity [**15]  between them."

Another vital objection to the plaintiff's recovery in this case is, the fact that the land in controversy, (two acres,) was never enclosed on four sides, separate from the adjoining land. It was enclosed, if at all, as part of the remainder of the land conveyed to Keener by Tyson. That an actual separate enclosure is indispensable, is decided in Armstrong vs. Risteau, 5 Md. Rep., 278.

4th. The court rightfully admitted the evidence excepted to. The evidence of Myers was offered to show the character of the holding by Tyson, and consisted of statements made by Tyson in relation to the land, and particularly that he did not claim it, had no title to it, and could give none. It was clearly admissible, upon the question of adverse possession, to show, that if Tyson held possession, it was not as claiming a right to do so, or with a view to the obtention of the title by length of possession. 5 Md. Rep., 276, Armstrong vs. Risteau. 1 Greenlf. on Ev., sec. 109. 2 Phillips' Ev., (4th Amer. Ed.) 266. But if Kauffman had the paper title, and if Keener has proved no adverse continuous possession by enclosures, as the appellee contends, then the testimony excepted to,  [**16]  whether admissible or not, did not injure the appellant, and he has no ground of complaint.  

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

OPINIONBY:
TUCK 

OPINION:

 [*305]  TUCK, J., delivered the opinion of this court:
This is an action of trespass, quare clausum fregit, by the appellant against the appellee, which was tried on issues framed upon the pleas of non cul, and liberum tenementum. The defendant below has the paper title, the plaintiff claiming 

 [*306]  by possession in himself, and those under whom he claims, for more than twenty years.
After the parties had offered much parol and documentary evidence, the plaintiff submitted three prayers, all of which were refused by the judge below, who gave a verbal instruction. The plaintiff excepted to the refusal of his prayers, but not to the direction as given by the court. He also excepted to the admissibility of a portion of the evidence of George Myers, offered by the defendant.
As the first prayer is based on the principle that possession is sufficient to maintain an action of trespass q. c. f., against all persons except the legal owner, it is necessary to determine how far that [**17]  doctrine applies to the present case, in view of the issues made by the pleadings. The plea of liberum tenementum admits possession by the plaintiff, but does it admit such a possession as entitles him to sue in the particular case? The nature of the plea--what it admits, and what it denies--was discussed in Hunter vs. Hatton, 4 Gill 115, where we are told that "it must admit such a possession as would suffice to maintain the action, if unanswered, or as against a wrong-doer. On the other hand it must deny a rightful possession, or it would fail as a defence to the action. It gives implied color to the plaintiff, but asserts a freehold in the defendant, with a right to immediate possession." Where, in answer to such a plea, the plaintiff replies a term created by the defendant, the freehold of the latter is admitted, with the assertion of a right of possession in the plaintiff, under the terms. Under that issue the plaintiff's right of possession would be the question to be decided. But where, as here, a special replication is not filed, and the issue is joined on the plea of liberum tenementum, the matter in issue is the freehold of the defendant, and [**18]  if the jury find that fact they have nothing to do with the right of possession. The plaintiff's traverse of the plea admits the defendant's right to the possession, should the jury find him entitled to the freehold. This prayer is, therefore, clearly defective in leaving out of view all notice of the freehold title, and placing the plaintiff's right to recover on mere proof of possession, 

 [*307]  without reference to its character as an adversary holding against the legal owner.
The second prayer asserts the plaintiff's right to recover on proof of possession in the plaintiff, and those under whom he claims, from 1817 to 1845, "by enclosure, and by the use and cultivation of the property so enclosed," on the ground that such possession barred the defendant's entry. Without passing upon all the objections urged against this prayer, we think it was properly refused. Conceding, which we do not decide, that where there is no evidence to explain the character of the entry and possession, the court may instruct the jury--as a conclusion of law--that possession by enclosure for twenty years is sufficient to bar the entry of the owner, without submitting to the jury to find whether it [**19]  be an adversary holding as against him, we have no doubt that, if there be such evidence, it must be embraced by the prayer, to enable the jury to ascertain the fact of adverse possession, from all the proof in the cause applicable to that question, embracing the intent with which the entry was made, the nature of the possession, and the acts of ownership, conduct and declarations of the party under whom title by possession may be claimed.  Helms vs. Howard, 2 H. & McH. 57. Matthews vs. Ward, 10 G. & J. 443. 1 Gill, 449. Adams on Eject., 505. In this case the prayer confines the jury to possession by enclosure and cultivation, without noticing the declarations of Nathan Tyson, under whom the plaintiff claims, made before the sale, and proved by Myers and Nicholson. Under the instruction the plaintiff would have been entitled to the verdict, although the jury might have believed that Tyson had offered to sell his wife's land demised under Ellicott's will, without including this disputed lot in the sale, and had said that he did not claim it, and could give no title to it. These were important facts, if found by the jury,  [**20]  because Tyson had been the agent of Ellicott in his life time, in reference to the property which he devised to his daughter, Mrs. Tyson, and had had the possession and management of it since Ellicott's death, and tended to show that neither he nor Ellicott regarded the possession by 

 [*308]  enclosure as of such a character as conferred title to the land, by adversary holding against the owner.
The third prayer, reciting substantially the same facts, assumes that they are sufficient to authorize--indeed, to require-- the jury to presume a deed to Tyson. For the reasons above stated, this prayer was also properly rejected. If the jury believed that Tyson had no title to the land in 1851, and could give none to his vendee--of which his own admissions were evidence--how could they find that he had a deed from the defendant, or those under whom he claims?
The remaining question relates to the admissibility of that portion of Myer's evidence which was objected to by the defendant. Title to land cannot be shown by parol. The law prescribes other modes of acquiring legal estates. But, although parol admissions are incompetent to prove facts that cannot be lawfully established by [**21]  parol proof, (1 Greenlf. Ev. 203,) "the declarations of a man respecting his title, made before he parts with his estate, are evidence against him, and all claiming under him." Dorsey vs. Dorsey, 3 H. & J. 410. See, also, Clary vs. Grimes, 12 G. & J., 31. 1 Greenlf. Ev., sec. 189. 2 Metcalf 363.
In this case the plaintiff relies on title by possession, Tyson being one of the alleged occupants, under whom he claims. The possession, to be effective, must have been adverse to the claims of the owner, which, as far as Tyson was concerned, was without claim of title, if this witness can be relied on. It is clear that the character and extent of the possession may be shown, and no more reliable testimony on the question could have been offered than his declarations as proved by Myers.
Judgment affirmed. 

84 of 196 DOCUMENTS 

WILLIAM GARITEE vs. DURUS CARTER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 309; 1860 Md. LEXIS 68 

June 29, 1860, Decided 

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

Action brought on the 10th of September 1857, by the appellant against the appellee, to recover damages for delivering up to one Kingsmore certain title papers, in violation of a contract by which the defendant had agreed to hold said papers, as security for the payment, to the plaintiff, of the sum of $ 500, as commissions for services rendered by the plaintiff to said Kingsmore. The damages claimed were $ 1000, and pleas were filed putting in issue the matters alleged in the declaration.

It was agreed, that the cause should be referred to L. H. Reynolds, Wm. Scharf and L. M. Bennett, and the court in pursuance of this agreement, ordered "that the whole matter in variance, in the said premises, between the said parties, be referred to the said" referees, "and that the said arbitrators, when the whole matter concerning the premises shall have been fairly adjusted, have their award, in writing, under their hands and seals, before the court here," &c. It was further agreed, that the award should be binding, if made by any two of the referees. An award was then made, and filed in court, by two of the referees, in which they: "Award,  [**2]  order, determine and adjudge, that there is due and owing by the defendant, Durus Carter, to the plaintiff, William Garitee, the sum of $ 500, and that judgment be rendered by this court, in favor of said Garitee, plaintiff, for the sum of $ 500, and costs to be taxed by the clerk of this court, as well as for the costs of this reference and award, which is the sum of $ 45, being the sum of $ 15 for each of said referees." To this award exceptions were filed by the defendant:

1st. Because the arbitrators did not decide therein all or any part of the matters submitted to them, and decided on matters not within the submission.

2nd. Because said award is not certain to a common intent and final.

The court (LEE, J.) sustained these exceptions, and set aside the award, and from this judgment the plaintiff appealed.  

DISPOSITION:
Judgment reversed and judgment for appellant.  

HEADNOTES:

An appeal lies from the judgment of a court setting aside an award made by referees to whom the case was referred under a rule of the court.

A more liberal and reasonable interpretation of awards is now adopted by the courts than formerly existed; every reasonable intendment will be made in their favor, and a construction given to them that will support them, if possible, without violating the rules adopted for the construction of written instruments.

A pending cause was referred, under rule of court, to referees, who returned an award that a certain sum was owing by the defendant to the plaintiff, and that judgment be rendered in his favor for that sum and costs, "and the costs of this reference and award, which is the sum of $ 45, being the sum of $ 15 for each of said referees." HELD:

That the latter part of this award, determining the costs of the reference, is not within the submission, and the award is, pro tanto, void, but this does not vitiate the other part, which is within the submission.

Where that part of the award, within the submission, is of entirely distinct matter, and not depending on that which is awarded without the terms of the submission, the award is good as to the former, and void as to the latter.  

COUNSEL:
Orville Horwitz, for the appellant:

It is believed that all the questions arising in this case have been definitely settled by this court. In Roloson vs. Carson, 8 Md. Rep., 220, it is said, that "by a long course of decision, courts have manifested a strong inclination to sustain the judgments pronounced [**3]  by arbitrators;" and in Ebert vs. Ebert, 5 Md. Rep., 359, that "every reasonable intendment will be made in favor of awards, and a construction given to them that will support them if possible."

It is said, on the part of the appellee, that this award has gone beyond the submission. This exception can only apply to the expenses of the arbitration and cannot affect the residue of the award. 5 Md. Rep., 359. 6 H. & J., 14 Cromwell vs. Owings. There is nothing on the face of the award to sustain the objection that it is not certain and final.

The question upon the motion to dismiss the appeal upon the ground, that it is interlocutory, is believed to have been finally settled in the case of State, use of Hickley, vs. Stewart, et al., 12 G. & J., 456.

Sheppard A. Leakin, for the appellee:

1st. The appeal should be dismissed, because the order setting aside the award is not a final judgment, but interlocutory merely, and, therefore, no appeal lies from it. 7 Gill, 366, Welch vs. Davis. 11 G. & J., 405, Keirle vs. Shriver. 2 Md. Rep., 274, Mitchell vs. Smith. 3 Md. Rep., 334, Bridendolph vs. Zellers. Upon setting aside the award, it was in the power of the court to have [**4]  reinstated the case, and directed it to be tried as other causes, until final judgment; but the court was prevented from so doing by this appeal. 1 H. & J., 362, Selby vs. Gibson. 11 G. & J., 310, Dorsey vs. Dorsey. The decision in State, use of Hickley, vs. Stewart, et al., 12 G. & J., 456, cited by the appellant, has, it is submitted, no application to the motion to dismiss this appeal.

3nd. If the appeal is allowed, it is then insisted: 1st, that the award must be set aside pro tanto, because the arbitrators decide therein matters not within the submission in awarding themselves $ 45 costs of reference. Willes, 62, Candler vs. Fuller. 1 Ev. Harr., 20. 1 Barn. & Cress., 277, Frith vs. Robinson. 2 Chitty's Rep., 157, Bell vs. Belson, in 18 Eng. C. L. Rep., 283. 4 Excheq. Rep., 842, In re. Coombs. 8 East., 13, George vs. Lousley. 2nd. That there is no error in the order setting the award aside. 6 H. & J., 12, Cromwell vs. Owings. 8 Md. Rep., 287, Ing, et al., vs. State. 10 G. & J., 214, Caton vs. McTavish.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*311]  BARTOL, J., delivered the opinion of this court.
In the opinion [**5]  of this court, the motion to dismiss this appeal ought not to prevail. The question has been settled by the case of The State, use of Hickley, vs. Stewart & Gross, 12 G. & J. 456, where an appeal from the judgment of the county court setting aside an award, was sustained.
We think the court below erred in sustaining the objections 

 [*312]  to the award and setting it aside. It is shown by the return to the writ of diminution, that the reference in this case was made under a rule of court. The only exceptions to the award, presented for our consideration, are: 1st, because the arbitrators did not decide therein, on all, or any part, of the matters submitted to them, and decided on matters not within the submission. 2nd. Because said award is not certain to a common intent and final.
The rule by which this court is governed, in dealing with awards, has been often announced. It has been more than once said, with approbation: "That a more liberal and reasonable interpretation of awards is now adopted by the courts than formerly existed. Every reasonable intendment will be made in their favor, and a construction given to them that will support them if possible,  [**6]  without violating the rules adopted for the construction of written instruments." 10 G. & J. 193. 5 Md. Rep., 359. 8 Md. Rep., 225.
Applying this rule to the present case, we are unable to perceive any ground for the second exception taken to this award. It has all the certainty which the law requires, and is a final determination of the cause referred to the arbitrators.
With reference to the first exception, we are clearly of opinion that so far as the award ascertains and decides that, "there is due and owing by the defendant, Durus Carter, to the plaintiff, William Garitee, the sum of five hundred dollars," and awards, "that judgment be rendered by the court in favor of said Garitee, plaintiff, for the sum of five hundred dollars and costs to be taxed by the clerk," it is a decision of the matters submitted to them, plainly within their authority.
We think, however, that part of the award which determines that judgment be entered against the defendant for "the costs of this reference and award, which is the sum of forty-five dollars, being the sum of fifteen dollars for each of said referees," was not within the submission,  [**7]  and that the award was, pro tanto, void. George vs. Lousley, 8 East., 14. 

 [*313]  Bell vs. Belson, 2 Chitty's Rep., 157. See, also, the authorities cited in note (a.) in 18 Eng. C. L. Rep. 283.
In the case of Cromwell vs. Owings, 6 H. & J. 10, it was said: "But it is well settled that if an award be both of matter that is submitted, and of that which is not within the submission, it may be good as to all that is within the submission, and void as to the residue."
This rule applies where that part of the award which is within the submission, is of entirely distinct matter, not depending upon that which is awarded without the terms of the submission. That is the case here, the award was bad only in so far as it awarded to the arbitrators their expenses, to be paid by the defendant; in other respects it was good. The judgment will be reversed, and a judgment entered in favor of the appellant, in conformity with the views expressed in this opinion.
Judgment reversed and judgment for appellant. 

85 of 196 DOCUMENTS 

THEOPHILUS B. HORWITZ vs. ALLEN B. DAVIS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 313; 1860 Md. LEXIS 69 

June 29, 1860, Decided 

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

Action on the case brought on the 9th of January 1858, by the appellee against the appellant, for the use and occupation of a certain house and lot on Pratt street, in the city of Baltimore. Plea, that the defendant did not hold, use, occupy or enjoy the premises as alleged.

Exception. The evidence is fully stated in the opinion of this court. The deed of trust from Fowler to Horwitz, conveys "all the stock of goods, fixtures and furniture contained in the store, on the south side of Pratt street, No. 155, and all debts due him, the said Fowler, and choses in action to him belonging, and all his property of every sort and description," upon trust, in the usual form, to sell the same and apply the proceeds to pay the debts of Fowler. The advertisement, signed by Horwitz as trustee, states that it is a trustee's sale of the goods and fixtures in this store, and that he will sell the same at the store above named, by virtue of the above deed of trust. The court (MARSHALL, J.) granted, at the instance of the plaintiff, the instruction set out in the opinion of this court, and to this ruling the defendant excepted, and the verdict and judgment [**2]  for $ 125 and costs, being against him, he appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Where a lessee makes a general assignment of "all his property of every sort and description," for the benefit of his creditors, it is sufficiently comprehensive to pass to the trustee the grantor's interest in the term.

But the trustee was not bound to accept the assignment of the term; he had his election to take it or not, as he might deem it for the benefit of the creditors.

Unless the trustee elects to take it, or goes into possession and occupies the premises under the assignment, he will not be bound for use and occupation as tenant.

But if the trustee actually goes upon the premises and occupies them under the assignment, he becomes liable to an action for use and occupation as tenant.

If the trustee enters upon and takes possession of the premises and uses them for the purpose of selling the goods assigned, this is such an entry and acceptance of the assignment of the term as will make him liable for the rent, as assignee of the lease. 

COUNSEL:
T. B. Horwitz and Geo. H. Williams, for the appellant, argued:

That there was no evidence to establish the relation of landlord and tenant between these parties, nor from which the jury could find that the defendant used and occupied the premises as tenant of the plaintiff, or that he used or occupied them as assignee of Fowler's interest as lessee thereof. The entry of the appellant as trustee, and not in the capacity of the assignee of the term, for the purpose of disposing of and removing the property belonging to the trust, as speedily as possible, and of immediately putting an end to all connexion with the premises, did not render him the tenant of the appellee, and as such, or in any other way, responsible for the rent of the premises, or any part thereof. 6 Johns., 48, Smith vs. Stewart. 7 H. & J., 255, Stoddert vs. Newman. Archbold's Law of Landlord & Tenant, 149, 150. Woodfall's Landlord & Tenant, 220. 3 Adol. & Ellis, 659, How vs. Kennett, et al. Moody & Malk., 481, Carter vs. Warne. 7 East., 343 to 345, Turner vs. Richardson. 1 Esp., 234, Bourdillon vs. Dalton. 2 G. & J., 326, Stockett vs.  [**3]  Watkins. 10 G. & J., 156, De Young vs Buchanan. There is no assignment of the lease in terms, and no proof that Fowler did not occupy the premises at the time of the sale. The appellant never saw the agreement between Fowler and Davis, creating the tenancy, and had no time or opportunity to elect whether he would take it or not, and it is submitted that the case of Dorrance vs. Jones, 27 Ala., 630, cited by the appellee, cannot overrule the English authorities above referred to.

T. A. Linthicum, for the appellee, argued:

That the instruction was properly given. The appellant entered under Fowler, who was tenant of the plaintiff, and held possession for several days. He had possession of, and control over, the key of the front or street door, giving access to the entire building. His tender of the key was evidence of his right to surrender the premises, and consequently of his right as assignee of the interest of the lessee. Having thus entered under the tenant, and as assignee of his interest in the premises, he became tenant to the appellee, and could not determine such tenancy without the consent of the appellee, his landlord. The assignment from Fowler was clearly sufficient [**4]  to pass his interest in this term, and having gone into possession and occupied the premises under the assignment, he became bound as tenant. The case of Dorrance vs. Jones, 27 Ala., 630, clearly decides this position, and contains the true exposition of the law in reference to such cases. See, also, 12 Barb., 263, Carter vs. Hammett; 1 Dow. & Ry., 201, Gibson vs. Courthope, in 16 Eng. C. L. Rep., 33; Archbold's Law of Landlord & Tenant, 149, 150, 152; Ry. & Moody, 207, Clark vs. Hume. Under the English bankrupt laws, the assignee has the right to refuse or accept such a term as this, and in this respect the English cases are not applicable here.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*316]  BARTOL, J., delivered the opinion of this court:
This is an action for use and occupation, instituted by the appellee against the appellant. The facts of the case, as disclosed by the record, are as follows:
John R. Fowler rented the premises (for the use and occupation of which this suit is brought) from Davis, the appellee, for one year, commencing the 1st of April 1857, at a yearly rent, payable quarterly. The premises were occupied [**5]  by Fowler as a dwelling and store house, and while so occupying them, he made an assignment to the appellant, for the benefit of his creditors, of his effects and property. The assignment was made on the 14th of September 1857, and was accepted by the appellant, who took possession of the goods which were in the store room, and occupied the store for the purpose of arranging the goods and effects, assigned to him, for sale, and selling the same; gave notice, by advertisement, that he would sell at public auction, on the premises, on the 22nd of September 1847, the goods, with the furniture and fixtures in the store, and did sell the same in pursuance of the advertisement, and on the following day offered to surrender the key of the premises to the appellee, who refused to receive the same unless the defendant would pay him the quarter's rent about to fall due on the 1st of October ensuing, which the defendant refused to do, and this action was brought to recover for the use and occupation of the premises by the defendant, as assignee of the lease.
The court, at the instance of the plaintiff, instructed the jury "that there was evidence from which they might find that the defendant [**6]  used and occupied the premises, as tenant to the plaintiff, and as assignee of the interest of Fowler, as lessee, and, if the jury should so find, their verdict ought to be for the plaintiff." To this instruction the defendant excepted.

 [*317]  The deed of trust from Fowler to the defendant, was sufficiently comprehensive to convey the interest which the grantor had as lessee of the premises; but the trustee was not bound to accept of the assignment of the term; he had his election either to take it or not, as he might deem it for the benefit of the creditors, and unless he elected to take it, or went into possession and occupied the premises under the assignment, he would not be bound for use and occupation, as tenant. Turner vs. Richardson, 7 East., 336. Gibson vs. Courthope, 1 D. & R., 201, (16 Eng. C. L. Rep. 33.) Carter vs. Hammett, 12 Barbour 263. See, also, the authorities referred to in Archbold's Landlord & Tenant, 149 & 150, marg., (53 Law Lib. 151.) But if the assignee actually goes upon the premises and occupies them under the assignment, he becomes bound as tenant, and is liable under this form of action.  [**7]  A majority of this court are of opinion that, in this case, there was evidence of such occupancy, and that the judgment ought to be affirmed.
The case of Dorrance vs. Jones, decided by the Supreme Court of Alabama, in 1855, (27 Ala. 630,) was very similar to this, in its facts and circumstances, and that court sustained the action for use and occupation. A majority of this court concur in the judgment pronounced in Dorrance vs. Jones, and refer to and adopt the reasoning and authorities on which it was based.
Judgment affirmed. 

86 of 196 DOCUMENTS 

JOSEPH D. GREEN vs. WILLIAM HAMILTON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 317; 1860 Md. LEXIS 70 

June 29, 1860, Decided 

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

Trover, brought on the 10th of April 1856, by the appellant, against the appellee, to recover damages for an alleged wrongful conversion, by the defendant, of certain goods, consisting of sundry pieces of silks, satins, &c., belonging to the plaintiff. A copy of the declaration, in which the damages were laid at $ 2000, and a notice of a rule to plead thereto in fifteen days after appearance, were duly served upon the defendant with the writ. The writ was returned at the May term 1856, and the personal appearance of the defendant entered by the court, pursuant to the Act of 1852, ch. 76, sec. 2, and a rule to plead was then entered according to the notice previously given. The case was afterwards continued by successive continuances to January term 1857, when a judgment by default was entered against the defendant for want of a plea, with leave to the plaintiff to have an inquiry of his damages.

Two commissions were then issued to take testimony in Philadelphia, the first, on the 28th of September 1857, to William Ogle, Esq., and the second, on the 23rd of October 1857, to J. Henry Bryan, Esq., of that city. The facts proved [**2]  under these commissions are substantially these: The plaintiff was a dry-goods merchant in Philadelphia, and the defendant an auctioneer doing business on Pratt street, in Baltimore. On the night of the 8th of March 1855, the plaintiff's store was broken into and robbed, by one Dougherty, of a large quantity of valuable silks and satins, valued, as stated by one of the witnesses at about $ 1000. Dougherty conveyed the stolen goods to Baltimore and brought them to the defendant's store in carpet bags, and the defendant sold them at auction and accounted for the proceeds to Dougherty. A list of a portion of the goods stolen, made out by the plaintiff, with the current prices annexed, amounting to $ 533.04, and a list of the defendant's account of sales, showing sales to the amount of $ 204.66, were filed with the first commission.

On the 14th of December 1857, an inquisition was taken at bar, and the plaintiff's damages assessed at $ 1000, and final judgment was thereupon rendered, and at the succeeding January term, a writ of fieri facias was issued on this judgment, returnable to the May term 1858, which writ is still outstanding. Afterwards, in May term 1858, the defendant moved [**3]  the court to strike out the judgment of the 14th of December 1857, "for fraud, deceit, surprise and irregularity in obtaining the same," and as the ground for such motion, alleged in his affidavit:

1st. That the judgment has been entered for $ 1000, in face of the fact that the plaintiff's own evidence appearing on the record establishes the amount which he can claim of the defendant to be not more than $ 204.66.

2nd. That the only evidence submitted by the plaintiff to the jury, who found the inquisition, was that contained in the commissions issued to Philadelphia, and that no notice of the asking, or granting, of either of these commissions, was given to the defendant, and no copy or notice of the interrogatories annexed thereto served on him, and that he was not served with any notice to appoint a commissioner, or with the name of any commissioner nominated by the plaintiff, and that the plaintiff, so far as the proceedings disclose, did not nominate either Bryan or Ogle, to whom these commissions were issued, to the Superior court, or the judge, or the clerk thereof, as a commissioner, and that there was no power in the court, or the judge, or the clerk, to issue either [**4]  of them, and that the court had no power to allow the evidence taken under either to be read to the jury, which was in point of fact read to them and was the only evidence on which they found the inquisition.

The defendant further alleges that certain merchandize was brought to his auction store, in March 1855, by one Dougherty, a stranger to him, and was represented by Dougherty to be his property; that he sold the same at public auction, at Dougherty's request, and paid him the whole proceeds, and at the time defendant received and sold these goods, he believed Dougherty to be the owner, and had no suspicion, or grounds of suspicion, that they were the property of any one else; and that after the sale, a person on behalf of the plaintiff came to defendant's store, and inquired if he had had or sold any such goods, and defendant furnished him with all the information in his possession on the subject, and showed him the account of sales in his books, and that the plaintiff was acquainted with the facts when he instituted this suit and recovered this judgment; that defendant never received of the goods, alleged by the plaintiff to have been his, to a greater extent than what had [**5]  been sold as aforesaid, for $ 204.66; and that the plaintiff also knew that the proceeds of such sales had been paid over by the defendant before the institution of this suit, and in ignorance of the alleged property therein of the plaintiff; and the defendant can prove all the facts above mentioned, by competent testimony, if he be allowed an opportunity to do so.

The plaintiff for cause why the judgment should not be stricken out, and for answer to the allegations of the defendant in the premises, filed an answer, verified by affidavit, in which he alleges:

1st. That the defendant has no standing in court to make this motion, because of his laches and delay.

2nd. That the judgment, upon the finding of a jury, cannot be disturbed after the term at which it was given, or, at all events, a power, so doubtful, ought not to be exercised in circumstances like the present, where the defendant has been so remiss and negligent.

3rd. That it is too late now to inquire into the evidence produced to the jury on the inquisition, and whatever objections might have obtained to any evidence then offered, should have been taken at or before the trial, or, at least, within the [**6]  period thereafter during which the defendant could have moved for a new trial.

4th. Not waiving the preceding grounds, the plaintiff further says, the facts averred in the defendant's affidavit, and upon which his motion is based, are not only immaterial and irrelevant, but are not set forth according to the truth of the case. It is not true, as alleged, that the plaintiff's own evidence, appearing on the record, establishes the amount of his claim to be not more than $ 204.66. The plain facts are, that the plaintiff's store, in Philadelphia, was robbed at night of silks and satins, and other valuable dry goods, to a large amount, by one Dougherty. These goods were traced to the defendant's store, whither they were brought, as the plaintiff has been informed, with the labels and wrappers torn off, packed in part or wholly in carpet bags, and otherwise in such a condition that any man of ordinary intelligence could not well help suspecting something was wrong about them. The defendant received them, sold them, and delivered them to purchasers, and therefore, upon the plainest principles of law, was guilty of a conversion, and liable for the real value to the true owner. The value [**7]  of the goods so stolen and converted, was far more than the amount for which the defendant says he sold them, and at a moderate estimate at least $ 1000, the sum that an intelligent jury, upon the evidence before them, pronounced the same to be worth. Touching the commissions, he submits that nothing connected with them can possibly be a ground for striking out the judgment, because they were issued long after the judgment by default, and that judgment cannot be affected by matter subsequent. The inquisition cannot be affected, because the most that can be said against the issuing of the commissions is, that the evidence taken under them might have been objected to. But nothing is clearer than that any objection to evidence ought to be made at the time it is offered. The defendant, by construction of law, was in court when the inquisition was taken, and if any ground of objection, to any evidence that may then have been offered, existed, it was his place to have urged it, otherwise no inquisition could stand, and there never would be an end of litigation. The plaintiff further insisted that the second commission, the evidence taken under which alone was read to the jury, was properly [**8]  and legally issued and executed.

The court (LEE, J.) sustained the motion, on the ground that the commissions, under which the testimony was taken, were not issued in conformity with the Acts of Assembly and rule of court, and ordered the inquisition and judgment thereon to be struck out and set aside, but that the judgment by default stand, and that the plaintiff shall at any time be entitled, on motion, to have an inquiry of the damages and costs. From this order the plaintiff appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

In an action of trover judgment by default for want of a plea was entered, and subsequently an inquisition was taken and damages assessed to the plaintiff, and a final judgment rendered thereon, and execution issued which was outstanding. After the lapse of a term, the defendant moved to strike out the final judgment, for fraud, deceit, surprise and irregularity, and the court ordered the judgment and inquisition to be struck out, but allowed the judgment by default to stand, with leave to the plaintiff to proceed thereon, and have another inquisition, and from this order the plaintiff appealed. HELD that the appeal lies.

A judgment by default, regularly entered, is as binding as any other, as far as respects the power and jurisdiction of the court in declaring that the plaintiff is entitled to recover, though the amount of the recovery, in some cases, remains to be ascertained by a jury.

A finding upon an inquisition has the same dignity and efficacy as a verdict on issues; the defendant may participate in the inquiry at bar, and if he absents himself, he has no better standing in court afterwards than a defendant who has defended the cause.

The fact that the jury, on an inquisition, in an action of trover, assessed more damages than the evidence would warrant, is nothing but a reason for a new trial; it is no ground for striking out the judgment for fraud, deceit, surprise or irregularity, under the Act of 1787, ch. 9, sec. 6.

Nor is the admission of inadmissible evidence, on an inquisition, ground for striking out the judgment under this Act; if a party allows such evidence to go to the jury, he is bound by the verdict; he must object when the testimony is offered, and the fact of his absence does not vary the principle.  

COUNSEL:
R. J. Gittings and A. W. Machen, for the appellant, argued:

1st. That whatever control the court might have had over the inquisition and consequent judgment within the term, it had no power, either at common law or under the Act of 1787, ch. 9, to set them aside, at a subsequent term, for any such cause as is attempted to be established here, and the court, therefore, in passing the order appealed from, acted without jurisdiction, for--

1st. The issuing of a commission to take testimony in a cause, is a collateral proceeding, which has nothing to do with the judgment. Any want of regularity touching the commission, may be ground for objecting,  [**9]  at the trial, to the use of the evidence obtained under it, if the same shall be offered, but, as the commission is no necessary step in the cause, and as a judgment is equally capable, in law, of being given, whether a commission issue or not, such want of regularity cannot, in any sound use of the words, be said to be an irregularity in obtaining the judgment, as provided in the Act of 1787, ch. 9, sec. 6. Error is not irregularity. An irregular judgment is a judgment entered contrary to the course and practice of the court, as without service of process, or by default before the proper period of the term, or in scire facias, upon the return of but one nihil, and the like. 2 Dev. & Batt., 156, Skinner vs. Moore. The appellee might just as reasonably contend that the irregularity in the execution of the first commission, the evidence taken under which was never used at all, would make the judgment irregular.

2nd. The commission was sufficiently well issued, or if it was not, any defect therein has been cured under the 29th rule of court, by the defendant's omission to raise the objection before the jury were sworn.

3rd. The introduction of incompetent evidence not objected [**10]  to at the time by the party, and permitted to go in by the court, the inquisition being taken at bar in its presence, is not even ground for a new trial, much less is it irregularity and capable in law of vitiating the entire proceedings. 7 G. & J., 95, Farmers Bank vs. Duvall. Graham on New Trials, 199. At all events, the objection ought to have been made within the time allowed for a motion for a new trial, or in arrest, or, at farthest, within the term. 6 How., 31, Bank of U. S. vs. Moss. 12 Pet., 492, Sibbald vs. United States. 13 Md. Rep., 566, Katz vs. Moore. 14 Md. Rep., 564, Sherwood vs. Mohler.

2nd. That granting the power of the court in the premises, it was not duly exercised, nor was there just cause for its exercise. In support of this position, we rely upon the points and authorities above mentioned, and in addition urge:

1st. That the gross laches and delay of the defendant disentitled him to be received with any favor. 1 G. & J., 396, Burch vs. Scott. 3 Johns. Ch. Rep., 356, Duncan vs. Lynn. 7 Missouri, 6, Weimer vs. Morris. 1 Tidd., 513, 514, 533, 567.

2nd. That justice was done by the judgment, and therefore it ought not to have been disturbed. It is [**11]  clear that the appellee (even supposing him to have acted in the most perfect good faith,) was guilty in law of a conversion, and liable in trover to the owner of the goods for their value. The case of Hoffman vs. Carow, 20 Wend., 21, affirmed by the Court of Errors in 22 Wend., 285, decides this very point. See, also, 4 Bing., 66, Adamson vs. Jarvis; 80 Eng. C. L. Rep., 148, Buckland vs. Johnson; 1 Wilson, 328, Perkins vs. Smith; 2 Strange, 813, Parker vs. Godin; 1 Leigh, 86, Newsum vs. Newsum. Indeed, it has not been attempted to unsettle the judgment by default, which establishes the right of the plaintiff, and only leaves open the question of damages. There can be no reasonable doubt that all the stolen goods came to the appellee, and the appellant swears, and so is the other proof, that the sum awarded by the jury is a moderate estimate of their value.

3rd. The Act of 1787, ch. 9, requires that in all cases where the power given by it is exercised, the court shall direct continuances to be entered from the term when the judgment was obtained, until the term when it is set aside. Either, therefore, the court had no power to set aside the inquisition and judgment, as was attempted,  [**12]  or the entering up of the continuances was an indispensable condition of its exercise. But this condition was not complied with. 2 H. & G., 382, State vs. Cox.

3rd. An appeal lies. If our first point is maintained, that the judge of the court below acted without jurisdiction, there can be no question that his order is ground for appeal. 9 Gill, 93, Webster vs. Cockey. 5 Md. Rep., 337, State vs. Mace. But if he had jurisdiction, yet exercised it without good grounds, the appeal is still well taken. An order or judgment vacating a final judgment, and given after the term at which the judgment so affected was rendered, is always a subject for appeal. 2 H. & G. 374, Munnikuyson vs. Dorsett. 1 G. & J., 393, 426, Burch vs. Scott. 11 G. & J., 147, Oliver vs. Palmer. 3 Ohio N. S., 445, Huntington vs. Finch. An appeal, under such circumstances, has been sustained in other cases, in several of which the circumstances were not so strong as the present. 12 G. & J., 456, State, use of Hickley, vs. Stewart. 3 G. & J., 349, Klinefelter vs. Carey. 1 G. & J., 393, 426, Burch vs. Scott. An appeal lies from an order quashing an execution, which the order in the present case in effect does. 6 G.  [**13]  & J., 79, Waters vs. Duvall. 2 H. & G., 87, Hollingsworth vs. Floyd. An appeal also lies, on the ground that continuances are not ordered to be entered. 2 H. & G., 379, State vs. Cox.

J. Mason Campbell and P. McLaughlin, for the appellee, argued:

1st. That the order appealed from, is not an order from which an appeal will lie. It does not conclude the case. The plaintiff may still go on and get his final judgment. 2 H. & G., 374, Munnikuyson vs. Dorsett. Ibid., 379, State vs. Cox. 7 G. & J., 113, Boteler vs. State.

2nd. If the motion to dismiss is overruled, the appellee then insists upon the grounds disclosed in his affidavit in the court below, and the rules of that court, as sufficiently warranting the order appealed from. He was entitled to notice of the issual of the commissions, and none was given him. They were, therefore, issued without authority of law, and so the evidence upon which the jury acted was not only incompetent, but a surprise and fraud on the appellee, which fatally vitiates the judgment. It would be a very great reproach to the administration of justice if such a judgment as this is permitted to stand--a judgment for $ 1000, where the plaintiff [**14]  admits, by the evidence adduced by himself, that less than half that sum is due him. His own list of articles stolen, which, it now appears, was withheld from the jury, (the evidence under the second commission only having been offered,) shows that the goods were worth but $ 533.04. The account of sales furnished by the defendant and returned under the first commission, as evidence on the part of the plaintiff, shows that the goods sold for but $ 204.66. This renders the judgment fraudulent, for if there be fraud in the judgment itself, or in the mode of obtaining it, the judgment is equally vitiated.  

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

OPINIONBY:
TUCK 

OPINION:

 [*326]  TUCK, J., delivered the opinion of this court.
In this case a judgment, for want of a plea, was entered against the present appellee--the defendant below--in January 1857. On the 14th of December following, an inquisition was taken and damages assessed to the plaintiff, on which a final judgment was rendered, and a writ of fi. fa. issued in January 1858, returnable to May court of that year, which writ is outstanding.
During May term 1858, the defendant moved the court to strike [**15]  out the final judgment, for "fraud, deceit, surprise and irregularity," which motion the plaintiff answered, and the court struck out the judgment and inquisition, allowing the judgment by default to stand, with leave to the plaintiff to proceed thereon, and have another inquisition.
The first question for consideration relates to the right of appeal, the appellee insisting that the order appealed from does not conclude the case, as the plaintiff may still go on and get his final judgment upon another inquiry at bar. In this view of the question, we do not concur. An appeal will not lie from a judgment on demurrer against the defendant in an action of debt on a bond with collateral condition, until an inquisition is taken and final judgment entered; the appeal must be taken from the final judgment. Wheeler vs. The State, 7 Gill 33. The reason is that the first judgment is merely interlocutory. The same rule applies where a judgment by default is entered, and, from the nature of the case, an inquisition is necessary to ascertain the extent of the plaintiff's right to recover. Wilmer vs. Harris, 5 H. & J. 1. But here the plaintiff appeals from an order striking [**16]  out the final judgment, after the term has elapsed. We think this cannot be distinguished from the case of Munnikuyson vs. 

 [*327]  Dorsett, 2 H. & G. 374. There a fiat on sci. fa. was entered by default. After several years the defendant moved the court to strike out the judgment, and filed affidavits presenting a strong case for the interference of the court, showing, among other things, that she had removed from the county, and had no knowledge of the writ of sci. fa. until long after the fiat--an attorney having appeared for her without authority. The fiat was stricken out, but on appeal that ruling was reversed, not merely because, as stated in argument here, the court had omitted to order regular continuances to be entered, but expressly, also, on the "broad ground that, under the circumstances of the case, the county court were not authorized to strike out the judgment on the sci. fa." It was suggested that the appeal should be dismissed, because the court had given no final judgment; bu the decision was made on the merits and the order reversed It is true, that in the next case--2 H. & G. 379--growing out [**17]  of the same original judgment--the court, in reversing the order striking out the judgment, confined their opinion to the failure of the county court to enter the continuances-- but, as the same judges sat in both cases, we are not to suppose that it was meant to impair the force of the first decision, based on the merits. The case of Keirle & Walker vs. Shriver, 11 G. & J. 405, is not like the present. That suit appears to have been so irregularly conducted, that it cannot be taken as settling principles to govern in others not precisely of the same character. The plaintiffs, though the proceedings were clearly erroneous, had no cause of complaint, because most of the irregularities operated in their favor. On a motion in arrest of judgment the court, instead of discharging the defendant without day, merely set aside the verdict by which a new trial was allowed the plaintiffs, and it was held that there could be no appeal until that trial had taken place. There was no final judgment in the case at all. And so in Boteler vs. The State, 7 G. & J. 109, the defendant appealed from an order granting a new trial, where the judgment on issues of [**18]  law was for him, but the verdict on issues of fact against him, (see page 111.) 

 [*328]  But, as in the last quoted case, there had been no final judgment. In both these instances the proceedings, that gave rise to the appeal, were had during the term. In the cases of Baldwin vs. Wright, 3 Gill 241, an appeal was entertained, and the judgment reversed, where the court below had quashed a ca. sa. See No. 8, page 244. But in No. 9, page 245, the appeal from a judgment overruling a motion to quash an attachment was dismissed, because it was interlocutory and not final. It had previously been decided that a plaintiff might appeal from a judgment quashing an execution. Wilmer vs. Harris, 5 H. & J. 1, (note.) Hollingsworth vs. Floyd, 2 H. & G. 87. And so from a judgment setting aside an award. State vs. Stewart & Gross, 12 G. & J. 457. And even in ejectment, where judgment against the casual ejector may be struck out after the term, if of recent date, an appeal lies at the instance of the plaintiff from an order striking out the judgment. Klinefelter vs. Carey, 3 G. & J. 349. Now it may be [**19]  said, that striking out these judgments, or quashing an execution, did not conclude the cases, but left the plaintiffs to proceed to another judgment, or to sue out another execution, as the cases required, with as much reason, as it is here contended, the plaintiff may proceed on his judgment by default, and have another inquisition. Indeed the argument is less cogent in support of the right of appeal in the case of an execution quashed than here, because there the judgment ascertains the debt, and the lien on realty is not disturbed, whereas the effect of setting aside the inquisition is not only to deprive the plaintiff of all benefit, from the outstanding fi. fa., but also to remit him to the uncertainties of another trial. When the authorities inform us that, "an appeal cannot be prosecuted until a decision has been had in the court below, which is so far final as to settle and conclude the rights involved in the action, or denying to the party the means of further prosecuting or defending the suit;" and "that when the proceedings below shall be terminated, an appeal will then lie, and all the errors of the court below, in the progress of the cause, will be proper subjects [**20]  for complaint 

 [*329]  of the party, and for the correction of the Court of Appeals," (7 G. & J. 109; Welch vs. Davis, 7 Gill 364,) they are to be understood as applicable to cases where the judgment appealed from is entered, while the cause is in fieri, and not as embracing those where the plaintiff has obtained a final judgment, and the term has passed. In such cases it is an injury--and in many a most serious one to him--to be deprived of his judgment and the chances of early reaping its fruits, although he might eventually succeed in the cause.
The same principle applies to cases in equity. An appeal lies from an order refusing to vacate a decree and to let in the merits as a defence, on a proper case made, and also where the enrolment is opened, and the decree vacated. In each case the rights of the party are injuriously affected. Oliver vs. Palmer & Hamilton, 11 G. & J. 136. For the reasons stated, the motion to dismiss the appeal is overruled.
Considering the case upon the reasons assigned, we think the court erred in striking out the judgment. A party who is himself in default, by disregarding the process of [**21]  the court, whether contemptuously or not, ought to present a much better case for striking out a judgment than this record discloses. If the appellee had appeared to the suit according to the exigency of the writ, and defended the cause, he might have escaped the predicament in which he now finds himself. A judgment by default, if regularly entered, (and to this one there is no objection,) is as binding as any other, as far as respects the power and jurisdiction of the court, in declaring that the plaintiff is entitled to recover; though the amount of the recovery, in some cases, remains to be ascertained by a jury. When determined, we are not aware of any rule or principle of law, which attributes to such a finding less dignity or efficacy than to a verdict found upon issues. They are both based upon evidence, and if any be improperly admitted, it is the fault of the defendant himself, who is entitled to participate in the inquiry at bar; and if he absents himself, he has no better standing in court afterwards than a defendant who has defended the cause. Indeed ours would 

 [*330]  be a singular system of jurisprudence if it were otherwise. The Act of 1794, ch. 46, places the inquiry [**22]  on the same footing with other jury trials: "The evidence is to be given in open court in the same manner, and under the same regulations." The parties may pray the opinion of the court and take bills of exception, and may appeal, as in other cases; and the inquisition may be set aside for the same grounds as would avail on a motion for a new trial. Ev. Prac., 335, 338. Belt vs. Worthington, 3 Gill & Johns. 247.
The grounds of the present motion are fraud, deceit, surprise and irregularity, which are supposed by counsel to be covered by the allegations that, "the judgment was rendered for one thousand dollars, in the face of the fact that the plaintiff's own evidence, appearing in the record, establishes the amount to be not more than $ 204.66," and that the only evidence before the jury was that contained in the return of a commission that had not issued according to the Act of Assembly, accompanied by a statement of the circumstances of, and manner in which the defendant became possessed of the plaintiff's goods; all which grounds are fully set forth in the defendant's motion to strike out the judgment. As to the first ground, we think that it is nothing [**23]  more than a reason for a new trial, because the jury found against the evidence in the cause, and does not substantiate the charge of fraud, deceit, surprise or irregularity. We cannot go into the circumstances of the case, to perform the office of jurors; and especially in an action of trover, where the question was the value of the property, and not what it produced at public auction. The defendant might have moved for a new trial, and the judge who tried the cause, in the exercise of his legal discretion might have afforded relief, but we cannot. In our judgment the Act of 1787, ch. 9, sec. 6, does not apply to any such reason for opening a case. It is not a sufficient answer to say that he was not present. At any rate, it was his own laches that he was not, and the plaintiff ought not to suffer by it.
The same may be said, substantially, of the irregularity as to the commissions. It is merely the case of alleged inadmissible 

 [*331]  testimony submitted to the jury. The law is well settled, that if a party allow such evidence to go to the jury he is bound by the verdict. He must object when the evidence is offered. As before observed, his absence does not vary the principle.  [**24]  If he had been present, or if this had been a trial inter partes, would he now be heard to object to the evidence on any such ground? Certainly not. If such were the law, every judgment might be opened where, on the trial, incompetent witnesses had been examined, or inadmissible evidence tendered and read to the jury. Besides, the very rule of court relied upon by the appellee requires, that, "exceptions to the execution and return of a commission shall be made before the jury is sworn, otherwise they shall be considered as waived."
We do not think that this ruling of the court below can be maintained consistently with well settled principles of law. We are satisfied that a party defendant, who had been present at the trial, could not be relieved on any of the grounds suggested, and to allow a defendant who was absent, without any fault on the part of his adversary, to come in after the term and have redress, would be reversing the maxim, "vigilantibus non dormientibus leges subveniunt."
The judgment must be reversed and a procedendo ordered, to allow the appellant the benefit of his fi. fa.
Judgment reversed and procedendo awarded. 

87 of 196 DOCUMENTS 

EDWARD COCKEY vs. GEORGE MILNE'S lessee.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 200; 1860 Md. LEXIS 62 

June 28, 1860, Decided 

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

Ejectment, brought on the 20th of November 1855, by the appellee against the appellant, to recover a lot of ground in the city of Baltimore. Plea, non cul.

Exception. The titles under which the parties respectively claim, are fully stated in the opinion of this court. The mortgage from Sinclair to Forster of the 15th of November 1851, was executed by the grantor, residing in the city of Brooklyn, State of New York, and was acknowledged before a commissioner of deeds for the city and county of New York, but it is not stated or certified that he was a commissioner of deeds for the State of Maryland, and there is no affidavit by the mortgagee of the bona fides of the consideration stated in the mortgage. The plaintiff asked an instruction that if the jury find from the evidence that the title to the property in question was out of the State, and that John Sinclair had the title to the same on the 1st of January 1851, and that the title continued in the same state, except as affected by the attachment and proceedings thereunder, in the case of George Milne vs. John Sinclair, and the sheriff's deed, offered in evidence by the plaintiff,  [**2]  and by the alleged mortgage from Sinclair to Forster, and the assignment from Forster to Hasbrouck, and the bill in equity and the proceedings thereunder, in the case of Hasbrouck vs. Sinclair, and others, offered in evidence by the defendant, and that the property is the same property mentioned in the said attachment proceedings, and said chancery proceedings, and in the deed from John Hayes, sheriff, also offered in evidence by the plaintiff, then the plaintiff is entitled to recover in this case.

The court (LEE, J.) granted this prayer, and to this ruling the defendant excepted, and the verdict and judgment being against him, appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

An attachment on warrant, under the Act of 1795, ch. 56, against the property of a non-resident or absconding debtor, may be issued upon a transcript of a judgment rendered in another State.

In a proceeding in rem., by attachment laid on land, the lien of the judgment of condemnation is a specific lien on the property condemned, which relates back to the time when the attachment was laid, and ripens into a perfect legal title in the purchaser under the execution.

The registration of a deed, defectively acknowledged, is not constructive notice to a subsequent bona fide purchaser, and cannot affect him without actual notice.

The want of the affidavit to a mortgage, as required by the Act of 1846, ch. 271, is fatal to the validity of the mortgage, whether it be assailed by a creditor or a subsequent bona fide purchaser.

The Act of 1846, ch. 271, avoids the instrument as to all persons except the grantor, and was designed not merely to prevent fraud, but for the benefit of creditors who may claim against such an instrument as void in law under the Act, no matter how the question of actual fraud may stand.

The right and title of a person who was not a party to proceedings in equity, for the sale of land, are not, in any manner, bound or affected thereby.  

COUNSEL:
John Stewart and S. T. Wallis, for the appellant, argued:

1st. That the attachment improperly issued, inasmuch as the Act of 1795, ch. 56, sec. 1, among the causes of action therein enumerated, upon which an attachment may issue against the property of a non-resident, does not include judgments. Now the attachment here was upon the transcript of a record of a judgment of the Superior court of New York. Is this such an instrument as will authorize an attachment to issue upon? The principle is well settled, that our [**3]  attachment laws are to be strictly construed. 8 Md. Rep., 444, Brown vs. Somerville. Every requirement of the law must be strictly complied with. There must be a short note accompanying every attachment, simply because the law requires it to be done, and in every other particular the directions of the law must be strictly followed, or otherwise the attachment falls. 5 H. & J., 130, Shivers vs. Wilson. 6 H. & J., 446, Yerby vs. Lackland. Ibid., 497, Mandeville vs. Jarrett. 12 G. & J., 53, Dawson vs. Brown. 3 Gill, 313, Barr vs. Perry. Drake on Attachments, sec. 87. In view of these authorities thus strictly construing these laws, it would be departing from the principle they desire to hold, that a transcript of a judgment of the court of another State is an instrument on which the party is indebted. When the Legislature designed to embrace judgments in their legislation upon this subject, they have used the word "judgment," as in the Acts of 1715, ch. 23, sec. 6, and 1715, ch. 40, sec. 7, and 1834, ch. 189, where special provisions are made for the case of judgments, and attachments thereon. It is not to be presumed that such special legislation would have been adopted, if a judgment [**4]  was an instrument upon which an attachment could issue under the Act of 1795. 8 Gill, 192, Wilson vs. Wilson.

2nd. That the appellee who purchased the property in dispute, on the 10th of June 1853, took only the interest of the execution debtor, subject to all its equities, and that Sinclair, the execution debtor, ceased to have any interest in the same on the 20th of December 1852, the date of the sale by the trustee, in the case of Hasbrouck vs. Sinclair & others, in the Superior court of Baltimore city, and had only the equity of redemption, from and after the 15th of November 1851, the date of the mortgage to Forster. The judgment was after, and the appellee, therefore, became a creditor subsequently to, the date of the mortgage. Though the mortgage was defectively acknowledged, yet the chancellor would have ordered it to be recorded under the Act of 1785, ch. 72, so as to bind the appellee. This same policy is carried out by the Act of 1825, ch. 203, sec. 1. An equitable assignment, bona fide made prior to the attachment, will overcome the legal right of the attaching creditor. 5 Gill, 180, Alexander vs. Ghiselin. 1 Strob. Eq. Rep., 103, Williams vs. Hollingsworth. Why should [**5]  not the same principle apply to cases of attachment of realty? In support of the positions assumed under this point, see 5 H. & J., 225, Boring vs. Lemmon; 6 H. & J., 204, Barney vs. Patterson; 6 Md. Rep., 201, Stump vs. Henry; 7 Md. Rep., 368, Martin vs. Martin; 3 H. & McH., 594, Davidson vs. Beatty; 2 Richardson's Eq. Rep., 179, Bank of South Carolina vs. Campbell; 2 Bay, 85, Ashe vs. Livingston; Drake on Attachments, secs. 603, 604, 10 G. & J., 420, Jones vs. Hardesty; 4 Md. Rep., 242, Winchester & Lemmon vs. Balto. & Susq. Rail Road Co.

Geo. W. Dobbin, for the appellee, argued:

1st. That the mortgage from Sinclair to Forster, not having any affidavit of the bona fides of the consideration, according to the laws of Maryland, could pass no title to the property except as against the mortgagor, and not having been acknowledged according to the laws of Maryland, the recording thereof was not notice to any one. Act of 1846, ch. 271. 8 Gill, 237, Neptune Ins. Co. vs. Montell. 1 Md. Rep., 469, Waters vs. Dashiell. 3 Md. Rep., 82, Charles vs. Clagett. 13 Md. Rep., 392, Fouke vs. Flemming. The want of the affidavit is fatal to the mortgage under the Act of 1846, ch. 271. This [**6]  Act was designed not only to prevent fraud, but also to protect creditors. The Statute of 13th Eliz., contains a clause making the deed good as against the grantor, yet a creditor could levy on the property notwithstanding such a deed.

2nd. That the proceeding in chancery, instituted by Hasbrouck, as assignee of Forster's mortgage, did not improve the title, except as to Sinclair and Forster, and Milne, the attaching creditor, not being a party to it is not affected thereby. 12 G. & J., 318, Brooks vs. Brooke. 1 Md. Ch. Dec., 236, Duvall vs. Speed.

3rd. That Milne, by his attachment laid on the 7th of April 1852, and by the judgment of condemnation of the 10th of May 1852, acquired a lien on the property in question, which was ripened into a perfect legal title in him by his purchase at the sheriff's sale, on the 10th of June 1853, and no act of Sinclair, or his alienee, after the attachment, could lessen or impair the security of the attaching creditor. 7 Md. Rep., 377, Martin vs. Martin. 3 Gill, 325, Barr vs. Perry. 7 G. & J., 429, Farmers Bank of Delaware vs. Beaston.

4th. That the attachment properly issued on the foreign judgment. The Act of 1795, ch. 56, sec. 1,  [**7]  authorizes an attachment on warrant to be issued against a non-resident, or absconding debtor, upon certain enumerated vouchers, and "any instrument, or instruments, of writing, by which the debtor is so indebted." This language is comprehensive enough to include a foreign judgment, and the Act has always been construed in that way. 8 Gill, 228, Neptune Ins. Co. vs. Montell.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*204]  BARTOL, J., delivered the opinion of this court:
This is an action of ejectment, instituted by the appellee against the appellant. It is admitted that John Sinclair was seized in fee of the land in controversy, on the 1st of July 1851, and continued so seized, except as affected by the proceedings under which the parties to this suit respectively claim title.
George Milne, (the plaintiff's lessor,) on the 17th of April 1852, issued an attachment out of the Superior court of Baltimore city, against John Sinclair, upon a transcript of a record 

 [*205]  of a judgment, recovered by him against Sinclair in the Superior court of the city of New York. The attachment was laid upon the property in question on [**8]  the same day. Judgment of condemnation was entered on the 10th of May 1852. A writ of fieri facias was issued thereon on the 11th of May 1853, and levied upon the same property, which was sold by the sheriff, and bought by Milne (the plaintiff in the attachment) on the 10th of June 1853, on the 3rd of June 1854, the sheriff conveyed the property to Milne, by deed duly executed, acknowledged and recorded, and upon this title the action was instituted.
Two grounds of defence were taken by the appellant:
1st. That the attachment improperly issued; because the Act of 1795, ch. 56, does not authorise an attachment against the property of a non-resident, to be issued upon a transcript of a judgment rendered in another State.
2nd. That the title acquired by the appellee (if any) under the proceedings in attachment and the purchase from the sheriff, is subject to the superior title acquired by the defendant under the mortgage from John Sinclair, the decree in equity of the 23rd of November 1852, and the sale thereunder, made on the 29th of December 1852.
Both these points were ruled against the defendant by the court below, and an instruction granted to the jury in accordance with [**9]  such ruling, which is brought before us for review on this appeal.
In the opinion of this court, the decision below was correct, and ought to be affirmed.
The Act of 1795, ch. 56, sec. 1, gives the remedy by attachment to any citizen of this State or any other of the United States, for the recovery of any debt due him by a nonresident or absconding debtor. In order to obtain the warrant for an attachment, it is necessary for the creditor to produce a voucher of his claim, and the Act, in the enumeration of the vouchers which may be produced, includes, in general terms, "any instrument or instruments of writing by which the debtor is so indebted." This language clearly embraces such a voucher as the transcript of a record of a judgment from another State. It is not only within the general scope and 

 [*206]  purpose of the law, but within its very letter. What is a transcript of record but an instrument of writing evidencing the debt; an instrument of the highest and most solemn character, the verity of which cannot be impeached, or its binding force denied, except by showing that the court, from which the record comes, has exceeded its jurisdiction. This is the first time [**10]  such an objection has been made since the passage of the Act of 1795, so far as we are aware; although debts on foreign judgments have been enforced by proceedings under that Act. In The Neptune Ins. Co. garnishee, vs. Montell, adm'r of Hughler, 8 Gill 228, the voucher produced was the record of a judgment recovered at Nassau, in the Island of New Providence, and the attachment was sustained.
The ground of the second objection, as stated by the appellant, is as follows: "That the appellee, who purchased the property in dispute, on the 10th of June 1853, took only the interest of the execution debtor, subject to all its equities, and that John Sinclair, the execution debtor, ceased to have any interest in the same on the 20th of December 1852, the date of the sale by the trustee in the case of Hasbrouck vs. Sinclair and others, and had only the equity of redemption from and after November 15th, 1851, the date of the mortgage to Forster."
In support of this position, several authorities have been cited in argument, all of which have been carefully examined. But it is unnecessary particularly to notice them, as we consider them inapplicable to the present case.  [**11]  Whatever may be the rights acquired by a purchaser, under an execution issued upon a general judgment, in this case, where the proceeding was in rem. by attachment, and the judgment one of condemnation of the particular property, we are clearly of opinion that the lien of the judgment was a specific lien upon the property condemned, which related back to the time when the attachment was laid, and ripened into a perfect legal title in the plaintiff, by the purchase under the execution.  7 G. & J. 429. 3 Gill, 325. 7 Md. Rep., 377. In opposition to this title, the defendant claims under the mortgage 

 [*207]  executed by Sinclair to Forster, on the 15th of November 1851. That instrument was defective in two particulars. It was not acknowledged according to law, nor did it contain any affidavit of the bona fides of the consideration, as required by the Act of 1846, ch. 271.
The law is well settled in this State that the registration of a deed defectively acknowledged, is not constructive notice to a subsequent bona fide purchaser, and cannot affect him without actual notice. 1 Md. Rep., 403. 5 Md. Rep., 81. [**12]  It is unnecessary for us, in this case, to decide whether a party claiming under an attachment levied upon the property, is entitled to the same protection as a bona fide purchaser against a prior deed defectively executed; because we consider that the want of the affidavit, under the Act of 1846, is fatal to the validity of the mortgage from Sinclair to Forster, whether it be assailed by a creditor or a subsequent bona fide purchaser. The Act of 1846 avoids the instrument as to all persons except the grantor. In our opinion, it was designed not merely for the prevention of fraud, but for the benefit of creditors, who may claim against such an instrument as void in law, under the Act, however the question of actual fraud may stand. This point has not before been directly decided; but we can give no other construction to the language of the Act of Assembly, and whenever this court has been heretofore called on to construe it, we have so understood its operation, without expressly so deciding. See Charles vs. Clagett, 3 Md. 82. Fouke vs. Fleming & Douglass, 13 Md. 392. See also Waters vs. Dashiell, 1 Md. 455.
In [**13]  the judgment of this court, the title of the appellee, acquired under the proceedings in attachment, was good against any title asserted under the mortgage, and was in no manner affected by the proceedings in chancery, instituted by Hasbrouck, the assignee of Forster, against Sinclair, under which the appellant's title was acquired. The appellee was not a party to those proceedings and his right was not, in any manner, bound or affected thereby.
Brooks vs. Brooke and others, 12 G. & J. 318. Duvall vs. Speed, 1 Md. Ch. Dec. 229.
Judgment affirmed. 

88 of 196 DOCUMENTS 

AUGUSTUS D. CLEMENS vs. MAYOR and CITY COUNCIL OF BALTIMORE, use of VOLKMAR & WILD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 208; 1860 Md. LEXIS 63 

June 28, 1860, Decided 

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

Assumpsit, brought on the 11th of January 1856, by the appellee against the appellant, to recover a paving tax for the paving of Fulton street. There was a judgment for the plaintiff, by default, and an inquisition taken, by which $ 491 were assessed as damages, but this judgment was subsequently stricken out by consent, and non assumpsit pleaded.

1st Exception. The evidence offered on both sides, as appears from the record, is fully stated in the opinion of this court. The evidence of the record, from the office of the Commissioners of Streets, having been taken subject to exception, the defendant presented the two objections which are also stated in the opinion of this court, and then asked the following instructions to the jury:

1st. That there is no evidence of any specific sum due the plaintiff in this case, and, therefore, the plaintiff cannot recover.

2nd. If the jury find that the claim sought to be recovered is a claim for paving done for the City of Baltimore, on Fulton street, then the plaintiff cannot recover under the pleadings in this case.

3rd. If the jury find that the claim, in this case, is for paving [**2]  of Fulton street, by and for the City of Baltimore, in order to recover, it is necessary for the plaintiff to offer in evidence proof, that the paving was done by virtue of an ordinance of the City of Baltimore, and must also show that the defendant owned property on Fulton street, and that the amount sought to be recovered was assessed against said property.

4th. If the jury find that the claim, sought to be recovered in this case, is for paving of Fulton street, and that such paving was done, and that the defendant owned property along the line of Fulton street, where the same was so paved, then in order to recover the plaintiff must show, in evidence, to the jury, that an assent, in writing, by a majority of the proprietors of the ground, binding on Fulton street, was given prior to such paving being done.

5th. That there is no sufficient evidence in the cause, that Fulton street was paved by the plaintiff, or that the defendant owned any property binding thereon.

The court (MARSHALL, J.) rejected all these prayers, and to this ruling the defendant excepted.

2nd Exception. This exception contains a prayer offered by the defendant, that the book offered in evidence,  [**3]  by the clerk of the city commissioners, does not furnish evidence to the jury, that the facts therein stated are true, so as to bind this defendant, but the court refused the prayer, overruled the objections and admitted the testimony, and the defendant excepted. The verdict was in favor of the plaintiff for $ 500, and from the judgment thereon the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The defendant made certain objections to a book, offered in evidence, which objection the court below overruled. This book does not appear in the bill of exceptions. HELD:

That this court cannot decide upon the propriety of the refusal of the court below to sustain these objections; the presumption is, the ruling of the court below was correct, and unless there be error disclosed on the record, its action will be affirmed.

Proof that the bills for paving were served on the defendant, corresponding in amount with the inquisition formerly taken in the case, (which the record shows was $ 491,) and that the defendant promised to pay the amount of the bills less about $ 25, is sufficiently definite to enable the jury to find the sum for which the defendant was bound.

A claim for paving taxes may be recovered in an action of assumpsit; the declaration containing an insimul computassent count, which there is evidence to support, the suit is well brought.

Presentation of the bill for paving to the defendant, his acquiescence therein, and his promise to pay it, constitute an admission by him, that the necessary preliminary steps had been taken by the city, and that the paving had been done, and would authorize the jury to find a verdict for the plaintiff.  

COUNSEL:
Benj. C. Barroll, for the appellant, argued:

1st. That the book of the Commissioners of Streets was not competent evidence to prove that the proprietors of a majority of feet of ground on Fulton street made application to pave the same.

2nd. That the approval of the Mayor, as required by the 4th section of the Ordinance, No. 15, cannot be proved by the book of the Commissioners of Streets.

3rd. That there was no evidence of any specific sum due by the defendant.

4th. The declaration should have set out a claim for paving, averring a compliance with the ordinances, ownership of property on Fulton street, by the defendant, and an assessment against his property for such paving, for the amount sought to be recovered. 1 G. & J., 480, Mayor & C. C. of Balto. vs. Hughes.

5th.  [**4]  To entitle the plaintiff to recover it ought to show an ordinance authorizing the paving of Fulton street; that the defendant owned property on that street, and that the amount sought to be recovered was assessed against such property.

6th. There was no evidence in the case that Fulton street had been paved, or that the defendant owned property thereon.

7th. The claim was for paving Fulton street, and if the defendant was under no legal obligation to pay, his promise was nudum pactum. There is no evidence to whom such promise was made, and its character is exceedingly indefinite, for it is said he promised to pay "the amount of the claim in the case." What amount that was is left without proof.

No argument was made for the appellee.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*210]  BARTOL, J., delivered the opinion of this court.
This action was instituted by the appellees against the appellant. The declaration contains the common money counts, a count for work and labor, and an insimul computassent count. The defendant pleaded the general issue.

 [*211]  The bills of exceptions state: "That the plaintiff proved by Wm.  [**5]  H. Cowan, a competent witness, that the defendant promised to pay the amount of the claim in this case, which amount the witness only knew from the bills that he had seen, some three or four of which bills he (witness) knew, had been served on the defendant, and he believed the amount to be about four hundred dollars; but that he knew well, the sum in the bills, and the inquisition heretofore taken in this case, correspond, and that the sum promised to be paid by the defendant, was some twenty five dollars less than the amount of the said bills and inquisition. The cestuis que use were pavers, and the claim is for paving Fulton street for the plaintiff. The plaintiff then offered in evidence the following: (Here insert the record from the City Commissioners.)
"Memorandum.--The clerk having repeatedly called on the plaintiff's counsel for the record from the City Commissioners (referred to above) has been unable to obtain the same, up to the present time.
"Before the reading of the record of the Commissioners of Streets, as produced by the clerk of said commissioners, he, the said clerk, deposed that the original papers and proceedings, in the matter of paving Fulton street, [**6]  had been lost, and that he could not find them, though he had repeatedly made diligent search for them in the place where such papers should be.
The defendant offered in evidence the Ordinance of the city of Baltimore, No. 15, entitled, 'An Ordinance establishing a system for grading, paving and repairing the streets, lanes and alleys in the city of Baltimore.'"
This constitutes the whole evidence in the case.
The defendant presented two objections to the record book of the city commissioners:
1st. That it was not evidence to prove to the jury that the proprietors of a majority of feet of ground on Fulton street, made an application to pave Fulton street, as in said book set forth.
2nd. That said book was not evidence that the Mayor of 

 [*212]  the city of Baltimore approved, &c., as required by the 4th section of Ordinance, No. 15.
These objections were overruled by the court below. In the absence of the record book of the proceedings of the city commissioners, this court cannot decide upon the propriety of the refusal by the Court of Common Pleas, to sustain the objections made by the defendant.
The presumption is that the court ruled correctly, and unless there be error [**7]  disclosed on the record its action will be affirmed. Burtles vs. The State, use of Turner, 4 Md. 273. Reynolds vs. Negro Juliet and others, 14 Md. 118. See, also, Duvall vs. Peach, 1 Gill 172. Thomas vs. Catheral, 5 G. & J. 23.
The defendant offered five prayers, all of which were refused; these are contained in the first bill of exceptions. We find no error in the action by the court upon these prayers. The testimony of Mr. Cowan, the witness, proved that the bills for paving had been served on the defendant, and although he could not speak from recollection of the precise amount, he stated positively that the bills served on the defendant corresponded in amount with the inquisition formerly taken in this case, which the record shows was $ 491, on the 5th of June 1857. Mr. Cowan further proved that the defendant promised to pay the amount of the bills, less about $ 25. We think that testimony was sufficiently definite to enable the jury to find the sum for which the defendant was bound, and, therefore, the first prayer was properly refused.
The second prayer has been based, in the argument, upon [**8]  the decision of the Court of Appeals in The Mayor and C. C. of Balto. vs. Hughes' Adm'r, 1 G. & J. 480. But there is nothing in that case to authorize the instruction asked for in the second prayer. We think this suit is well brought. The declaration contains a count on an insimul computassent, which the evidence of Mr. Cowan was sufficient to support. The presentation, to the defendant, of the bill for paving, his acquiescence therein, and his promise to pay it, was an admission by him that the necessary preliminary steps had been 

 [*213]  taken by the city, and that the paving had been done, and would authorize the jury to find a verdict for the plaintiff. For this reason the 3rd, 4th and 5th prayers were properly refused. They ignore the facts deposed to by Mr. Cowan, and would have tended to mislead the jury. See Clements vs. Smith's Adm'r, 9 Gill 156, 160. Wilson, Adm'r of Owens, vs. Smith, 10 Md. 67, 75.
In the second bill of exceptions is a prayer asked by the defendant, and refused by the court, predicated of the book of proceedings of the city commissioners; upon which, as we have before stated, we are [**9]  unable to decide, as the contents of the book are not disclosed.
Judgment affirmed. 

89 of 196 DOCUMENTS 

AARON LEVERING vs. MARY E. LEVERING.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 213; 1860 Md. LEXIS 64 

June 28, 1860, Decided 

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

Petition for a divorce a vinculo, filed on the 14th of May 1857, by the appellee against the appellant. The petition states that the parties were married on the 5th of February 1850, and avers that, within a few months thereafter, the defendant became very dissipated in his habits, and unkind and cruel in his treatment of the petitioner; that she bore and submitted to this ill-treatment, and, by every effort which an affectionate wife could make, endeavored to reclaim him and induce him to abandon his evil habits; that her efforts, however, proved ineffectual, and on the 8th of May 1854, she was compelled by his ill-treatment, not only in language but blows frequently inflicted upon her, to separate herself from him, and return to her father's house, where she has ever since resided; that from about six months after her marriage her husband has contributed nothing towards her support, and she was wholly dependent upon her father for the necessaries of life; that she has one child by the defendant, a daughter about six years old, who is also with the petitioner's father, and is entirely supported by him, the defendant [**2]  having never contributed any thing to her support. She avers that there is no possibility of her reclaiming her husband, or of their ever living together again, and prays for a divorce a vinculo, and for general relief.

The defendant answered the petition under oath. He avers that his wife left him without just cause, but he states his belief that she was induced to do so through the solicitations of her parents, by offering and surrounding her with luxuries which his limited means were unable to afford. He denies that he ever struck his wife a blow or ever used language to her unfit to be addressed by a husband to his wife. He denies that he is or ever has been a drunkard, although he admits that formerly he indulged occasionally in the use of ardent spirits, but has now abandoned such use forever. He avers that his wife and her parents knew his means when he applied for her hand--that he was a clerk at a salary of $ 400 per annum. The answer then shows that he made unsuccessful efforts, on borrowed capital, to improve his condition, but failed. He denies the charge that he has contributed nothing towards the support of his wife from six months after their marriage, and avers [**3]  that from the time of their marriage until his wife's desertion and separation from him, his whole energies were strained to provide, to the utmost of his abilities, for his wife and child, and states what these exertions were, and that he would now gladly and cheerfully expend his whole time for their comfort. He avers that he has frequently sought to reclaim his wife, and since her desertion of him, has repeatedly sought to have an interview with her, but her parents have, up to this time, prevented it. He denies that there is no possibility of their ever living together again. On the contrary, he avers that they can live together and happily. He says he cannot possibly furnish his wife with all the luxuries she may now enjoy, but, let his means be great or small, he is ready joyfully to share them with her. The answer then, whilst resisting the application for a divorce, states that he has abstained from claiming a restitution of conjugal rights, only because his means and circumstances did not permit him to support his wife and child as he felt they deserved, and to avoid paining his wife's feelings by an angry and excited collision, that must have occurred in the discussion of [**4]  the subject between her parents and himself.

Testimony was then taken on both sides, the purport of which is sufficiently stated in the opinion of this court. The following opinion was delivered by the court below (LEE, J.) upon passing the decree appealed from.

"Upon a careful examination of this petition for a divorce, and the circumstances and facts disclosed by the evidence, I am of opinion that the complainant is entitled to a divorce, a vinculo matrimonii, under a construction of the Acts of Assembly referred to in the argument, and that such a case as this comes within the remedy indicated by the Act of 1849, which provides for a divorce a vinculo, where parties are living separate and apart, and have been thus separated for more than three years, with no default shown on the part of the complainant, who, in this case, was compelled by inability of her husband to maintain her, and also from ill treatment, which she alleges, to leave him and seek protection and support under her father's roof. Therefore, I, as a chancellor, must regard the abandonment as having been occasioned by the defendant, and if the complainant was compelled to leave him, (which is fully shown [**5]  by the proof,) she ought to be entitled to the relief I now give, and, therefore, a decree divorcing her, a vinculo matrimonii, will be signed by me, the complainant to pay the costs."

From this decree the defendant appealed.  

DISPOSITION:
Decree reversed and decree for a divorce a mensa.  

HEADNOTES:

Under the Act of 1841, ch. 262, and its supplements, a divorce a vinculo, on account of abandonment of the party complaining by the party complained against, cannot be decreed, unless the court is satisfied, by competent testimony, that such abandonment has continued for at least three years, and is deliberate and final, and the separation of the parties beyond any reasonable expectation of reconciliation.

If the husband fails to supply his wife with such necessaries and comforts of life as are within his reach, and by cruelty compels her to quit him, and seek shelter and protection elsewhere, it is as much an abandonment of her by him, as if he deserts her and goes away himself.

In this case, the evidence did not sustain the charge that the husband failed or was unwilling to support his wife or share with her the fruits of his earnings, but there was proof that, on one occasion, forgetful of his duty, or impelled by the madness of intoxication, he inflicted violence on her person. For this and other ill-treatment, the wife left him and went to her father's house, where she lived for three years, apart from her husband, but the proof shows that the latter earnestly and anxiously sought to have her restored to him and to renew their marital relations. HELD:

1st. That this is not a case for a divorce a vinculo, but there being evidence of such cruelty as justified the wife in leaving the society of her husband, it is a proper case for a divorce a mensa et thoro.

2nd. There being but one child, a daughter of tender years, the court, under the power given by the 3rd sec. of the Act of 1841, ch. 262, confided her to the custody and guardianship of the mother, there being no proof or intimation of any unfitness or want of qualification on her part to take proper care of the child.  

COUNSEL:
Wm. Schley, for the appellant, argued:

1st. The court below had no jurisdiction in the case, except by virtue of the Act of 1841, ch. 262, and its supplements, and could not rightfully pass a decree a vinculo, except upon the allegation and proof of one of the causes specified in that Act.

2nd. The petition does not set forth any sufficient ground for such decree. There is no pretence of the causes, firstly, secondly and thirdly specified in that Act, and there is no allegation whatever of abandonment, by the appellant. The charge of cruel treatment is vague and indefinite, and even if properly alleged and proved would not justify the decree. The petition seeks to excuse the wife's admitted desertion of her husband by charging poverty and cruel treatment.

3rd. Upon the pleadings and proof in the cause there is no ground for divorce, even a mensa et thoro, much less a vinculo. Unless past [**6]  irregularity in the use of ardent spirits and present poverty, constitute separately, or together, a ground of separation, there is no conceivable ground for the decree. That the husband has been unfortunate and is poor, is a very good reason why an affectionate wife should not desert him, but should cling to him with increased devotion, affording him the consolations of friendship, the comfort of her society, the rich treasures of her love, and thus inspiring him with hope, confidence and strong motives for future effort and exertion.

4th. But to dissolve the marriage bond, for light or trivial causes, is against public policy. If this decree could be affirmed the marriage relation would be so loose in Maryland that either party might dissolve it at will.

Chas. H. Pitts, for the appellee, argued, that the appellant's failure to support his wife, his drunkenness, and the violence committed on her person, justified her in leaving him, and that in law it was an abandonment of her by him, and that abandonment having continued for more than three years, the court properly granted the divorce a vinculo, under the Acts of 1841, ch. 262, 1844, ch. 306, and 1849, ch. 245. Bishop [**7]  on Marriage & Divorce, sec. 515. 2 Dana's Abr., 308. 3 Bing., 127, Houliston vs. Smyth. Reeves' Dom. Rel., 207. 4 Rand., 662, Almond vs. Almond. 5 Iredell, 674, Wood vs. Wood. 2 Carr. & Payne, 22, Houliston vs. Smyth. 1 Younge & Jervis, 501, Emery vs. Emery.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*217]  BARTOL, J., delivered the opinion of this court:
There is no more painful and delicate duty devolved on a court of justice, than that of pronouncing upon the causes which justify a severance of the marriage relation. Public policy and public morals, alike, require that a relation so intimate and tender should not be broken for slight or trivial causes, and impose on us the duty of carefully weighing and considering the grounds upon which we are called on to affirm a decree dissolving the bonds of matrimony, between parties who respectively claim and resist the exercise of the power conferred on us by law.

 [*218]  The Act of Assembly of 1841, ch. 262, and its supplements, which confer jurisdiction, in such cases, on the chancery courts, limit and define the causes for which they are authorized to decree a divorce a vinculo matrimonii,  [**8]   and our plain duty is to decide whether, under the proof in this case, such cause has been shown. One of these causes mentioned in the law, is an abandonment of the party complaining by the party complained against; for that cause the decree in this case was passed, and on that ground alone are we asked to affirm it. By the Act of 1841, ch. 262, sec. 2, it is provided, that the court may decree a divorce a vinculo "where the party complained against has abandoned the party complaining, and has remained absent from the State for five years." By the Act of 1844, ch. 306, absence from the State for five years is dispensed with, and it is provided that the Chancellor, &c., "shall, in no case, decree a divorce a vinculo matrimonii on account of abandonment on the part of the party complained against, unless they shall be satisfied, by competent testimony, that such abandonment has continued uninterruptedly for at least three years, and is deliberate and final, and the separation of the parties beyond any reasonable expectation of reconciliation." The Act of 1849, ch. 245, gives power to the court to decree a divorce a vinculo, as provided for in the Acts of 1841 and 1844,  [**9]  "as well where the parties have lived separate and apart, without any reasonable expectation of reconciliation, in the State, as where the party complained against has lived out of the State."
We cannot agree with the late learned Judge of the Superior court, who passed this decree, that under these Acts of Assembly, the complainant was entitled to ask, or the court authorized to grant, the decree from which this appeal was taken. Here the complainant was not abandoned by the defendant; she left his home and society and returned to her father's house, and had been living separated from him for a period of three years. The argument of the appellee is, that the appellant's failure to support her, his intemperate habits and violence committed upon her person, justified her in leaving him, and was, in law, an abandonment of her by him. 

 [*219]  We can very well imagine a case in which this argument would apply. If a man fails to supply his wife with such necessaries and comforts of life as are within his reach, and by cruelty compels her to quit him, and seek shelter and protection elsewhere, we should have no hesitation in saying it would be as much an abandonment of her by him, as [**10]  if he had deserted her and gone away himself. In this case, the evidence does not sustain the charge that Levering failed, or was unwilling, to support his wife, or share with her the fruits of his scanty and meager earnings. There is evidence to prove that, on one occasion, forgetful of his duty and obligation to cherish and protect her, or, what is more probable, impelled by the madness of intoxication, he inflicted violence upon her person. Such conduct, when taken in connection with other facts and circumstances of the case, showing his ill-treatment of his wife, in the eye both of humanity and the law, would justify her in leaving his society; but it does not warrant a court to pronounce a decree of final separation between them. The statute requires that the abandonment shall continue uninterruptedly for at least three years. The proof in this case is, that the appellant has earnestly and anxiously sought to have his wife restored to him, and to renew their marital relations. In such a case, we think, it would be a perversion of the meaning of the law, to declare that there exists cause for a divorce a vinculo matrimonii. It does not come within either the letter or the spirit [**11]  of the Acts of Assembly.
By the Act of 1841, the court is authorized to decree a divorce a mensa et thoro for cruelty of treatment. We have said that in this case there is evidence of such cruelty as justified the complainant in leaving the society of her husband. Such evidence, under the law, authorizes us to sanction that separation by pronouncing a decree of divorce a mensa et thoro, and this relief we are warranted in granting by the evidence in this cause, under the 3rd section of the Act of 1841. The same section authorizes the court "to order and direct who shall have the guardianship and custody of the children." In this case, there is one child, a daughter of 

 [*220]  tender years, whom we think it our duty to confide to the custody and guardianship of her mother, the appellee. There is no evidence in the cause, nor any intimation, of any unfitness, or want of qualification on her part, to take proper care of the child.
A decree will be signed, reversing the decree below, and divorcing the complainant and defendant a mensa et thoro.
Decree reversed and decree for a divorce a mensa. 

90 of 196 DOCUMENTS 

OTHO H. WILLIAMS, survivor of JOHN B. HOWELL, vs. HIRAM C. WOODS, Jr., and JOHN C. BRIDGES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 220; 1860 Md. LEXIS 65 

June 28, 1860, Decided 

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

Assumpsit, brought on the 10th of September 1853, by the appellees, partners, trading as Woods, Bridges & Co., against the appellant and John B. Howell, trading as William Howell & Son, to recover damages for non-compliance with an alleged contract for the sale of a lot of coffee, part of the cargo of a vessel called the "Clintonia Wright."

The declaration contains five special counts. The first alleges that the defendants, on the 26th of August 1853, bargained and sold to the plaintiffs 1244 bags of coffee, containing 200,000 pounds, at 9 3/4 cents per pound, to be delivered immediately thereafter, and to be paid for by the plaintiffs to the defendants in promissory notes or bills of exchange satisfactory to the defendants, and payable in six months after the date of said delivery--averment, that the plaintiffs have always been ready and willing to accept the goods and pay for the same at the price and in the way aforesaid, of which the defendants had notice--breach, refusal and neglect to deliver. The second count alleges that the coffee was to be delivered at any time the plaintiffs might request or demand, to be paid for [**2]  in notes, &c., payable six months after the 26th of August 1853. The third count alleges that the coffee was Rio coffee, to be delivered within a reasonable time thereafter, to be paid for in notes, &c., payable six months after the 26th of August 1853. The fourth count alleges that the coffee was to be delivered in a reasonable time thereafter, to be paid for by the plaintiffs on the delivery thereof. The fifth count alleges that the coffee was to be delivered within a reasonable time thereafter, and to be paid for six months after the 26th of August 1853.

Plea, non assumpsit.

Subsequently Howell's death was suggested, and the case was prosecuted against the appellant, Williams, as surviving defendant.

Exception. The evidence on both sides is very voluminous, and need not be stated at length. Its purport sufficiently appears from the arguments of counsel, the opinion of this court, and the following prayers, on both sides, which are given in full.

The plaintiffs offered the five following prayers:

1st. If the jury shall find, from the evidence, that the witnesses, White and Elder, during all the months of August and September 1853, were engaged as partners [**3]  in Baltimore, under the firm of White & Elder, in the business of merchandise brokers, and sellers of merchandise on commission, and that on the 26th of August 1853, the said firm of White & Elder had authority from William Howell & Son to sell for them the coffee mentioned in the declaration, at a certain price, and upon certain terms, and did, in fact, on said 26th day of August, in pursuance and execution of their said authority, and within the scope thereof, contract, on behalf of said William Howell & Son, with the plaintiffs, to sell them the said coffee, at the price and upon the terms for and upon which said White & Elder were as aforesaid authorized to sell it, by said William Howell & Son. And if the jury shall further find that the book, produced in evidence by the witness White, was the sales book of White and Elder, at the time of said contract, wherein they made or caused to be made, entries of all sales made by them, as brokers and sellers of merchandise as aforesaid, and that the entry therein, on page 251 of said book, [this entry is set out in the opinion of this court,] with the exception of the words "paper to be satisfactory to the sellers," and the figures "9 [**4]  3/4" and "1244," was made therein, on August 26th, 1853, by Richard W. Hall, then a clerk of White & Elder, by the order, in the presence and under the actual personal direction and supervision of said White, acting for his said firm, as and for a partial note or memorandum of the said contract of sale to the plaintiffs, by William Howell & Son, through White & Elder, and that the words and figures, excepted above, were added by the said White himself, acting for his said firm, in his own handwriting, to complete the memorandum or note of said contract, on said 26th day of August 1853, or before any revocation (if the jury shall find any such) by William Howell & Son, of their authority aforesaid to White & Elder; then the said entry is a sufficient note or memorandum in writing of a contract to bind the defendant in this action; provided, the jury shall further find that said entry, either expressly or according to the sense and signification of its language and figures, under the established custom and usage of merchants in the city of Baltimore, at the time, (if the jury shall find such custom and usage,) and under the other proof in the cause, represented truly and fully the terms [**5]  of and parties to the contract of sale, entered into as aforesaid by White & Elder for William Howell & Son, and under their authority, (if the jury shall so find,) with the plaintiffs; and provided the jury shall further find that John B. Howell and the defendant then constituted the firm of William Howell & Son, and that said Howell hath since died.

2nd. If the jury shall find, from the evidence, the facts set forth in the plaintiffs' first prayer, and shall further find that the witness Murgiondo, during all the month of August 1853, was a clerk of William Howell & Son, and was authorized and empowered by William Howell & Son, to make and confirm a sale, or accept an offer for the purchase of the coffee in question, at 9 3/4 cents per pound, on a credit of six months, for satisfactory paper, and, being so authorized and empowered, did receive from White & Elder, on the 25th of August 1853, either an offer on the part of the plaintiffs, and made by their authority, to purchase said coffee, at the price and on the terms aforesaid, or a report of an actual sale already made by said White & Elder, for William Howell & Son, to the plaintiffs, at the price and on the terms aforesaid.  [**6]  And if the jury shall further find that the said Murgiondo did either accept said offer, (if the jury find it was an offer,) or confirm said sale, (if the jury find that White & Elder reported a sale, as aforesaid,) and that he acted within the scope of his authority in so doing, and did accordingly, on the said 25th of August 1853, make in the blotter of William Howell & Son, (if the jury so find,) the entry following:--"Woods, Bridges & Co. Aug. 25th, 1853--6 mos.--Ed. C. Wright.--1244 bags of coffee--a. 9 3/4," in his own handwriting, as and for a note or memorandum, in writing, of the offer so made to him and by him accepted as aforesaid, or as a note or memorandum, in writing, of the sale so as aforesaid to him reported, and by him confirmed as aforesaid (according as the jury may as aforesaid find,) and did further, on August 26th, 1853, write, sign, and transmit to the defendant, as a member of, and for the firm of, William Howell & Son, the letter of that date, purporting to be signed by said Murgiondo, and produced in evidence by the defendant, [in this letter the writers says: "I beg to advise sale about 1500 bags coffee by C. Wright to Woods, Bridges & Co., a. 9 3/4 c.  [**7]  , 6 mos. I hope that said sale will prove to your satisfaction, say lots 1 a. 24, leaving only four numbers more of said cargo in B. & Pearson's hands. Elder & White tell me that they, the purchasers, will make all right even in case you should not wish to take their note for the whole am't,"] and that said Williams received the same, and did, on the 29th day of August 1853, write, sign, and caused to be telegraphed, in reply to the said Murgiondo, a note or dispatch, of which the jury shall find that the writing following:--"Newport, Aug. 29th, 1853. To Williams, Howell & Son.--Do not deliver the coffee-- sale not satisfactory.--Otho,"--produced by the defendant, is a copy, and that said Williams did sign the same in the name "Otho," as and for his own name, and for and on behalf of William Howell & Son; then said entry, letter and note or dispatch, taken together, constitute a sufficient note or memorandum, in writing, to bind the bargain as against the defendant in this action; provided, the jury shall believe that, either in express words or according to the interpretation and meaning given and attached to the language therein used, at the time, by the usage and custom of merchants [**8]  in the city of Baltimore, (if the jury find such interpretation, meaning, usage and custom,) and from the other proof in the cause, the said entry, letter, and note or dispatch, together, truly and fully set forth the terms of and parties to the contract, which the jury may find as aforesaid to have been entered into, accepted, or confirmed, by said Murgiondo, for William Howell & Son, with, from or to the plaintiffs, through White & Elder, as aforesaid.

3rd. If the jury shall find the facts set forth in the first and second prayers of the plaintiffs, then there is evidence from which the jury may find a sale from William Howell & Son, on the 25th day of August 1853, to the plaintiffs, of the coffee in question, and a sufficient note or memorandum thereof, in writing, to bind the bargain as against the defendant in this action.

4th. If the jury find the facts set forth in the first and second prayers of the plaintiffs, and further find that the witness, White, as a member of, and for the firm of, White & Elder, did write, sign and deliver to the plaintiffs, on the 26th of August 1853, or before the revocation of the authority of William Howell & Son to White & Elder, mentioned [**9]  in the plaintiffs' first prayer, (if the jury find such revocation,) the paper following:--"Sold Messrs. Woods, Bridges & Co., for acc't of Wm. Howell & Son, CW 1244 bags Rio coffee, at 9 2/3, 6 mo., 1--26, 2--42, 3--27, 4--62, 5--24, 6--70, 7--60, 8--58, 9--72, 10--85, 11--38, 12--39, 13--43, 14--68, 15--101, 16--30, 17--95, 18--34, 19--26, 20--60, 21--52, 22--16, 23--56, 24--60. Baltimore, August 26th, 1853. (Signed,)--White & Elder,"--as and for a memorandum or note of the sale by White & Elder, made to the plaintiffs for William Howell & Son, and mentioned in plaintiffs' first prayer; then such paper is a sufficient note or memorandum, in writing, to bind the bargain as against the defendant in this action; provided, the jury shall find that it contains and sets forth, either expressly or in words sufficient and competent therefor, under the usage and custom of merchants, at the time, in the city of Baltimore, (if the jury find such usage and custom,) and under the other proof in the case, the terms of the sale so as aforesaid made by White & Elder to the plaintiffs, and in said first prayer mentioned.

5th. That if the jury find, from the evidence, the execution and delivery [**10]  to the plaintiffs, by White & Elder, of the memorandum in writing, purporting to be signed by them, and set forth in the plaintiffs' fourth prayer, the presumption of law, in the absence of evidence to the contrary, is, that the said paper was so executed and delivered on the day on which the jury may find that it bears date.

The defendant then offered the following prayers:

1st. If the jury shall find, from the evidence in the cause, that the entry in the memorandum book, offered in evidence by the plaintiffs, as the memorandum book of Messrs. White & Elder, under the date of the 26th day of August 1853, as follows: [this is the entry set out in the opinion of this court,] was made and written (except as to the words "paper to be satisfactory to the sellers," and except as to the figures "1244," and except as to the figures "9 3/4,") by Richard W. Hall, and that said Hall, at the time said entry was made and written, (in case the jury shall find that the same was written by said Hall,) was a mere clerk of said White & Elder, and not interested in their partnership or in their business; and shall further find, from the evidence, that said Hall was not engaged in business [**11]  at that time as a broker, and that he had not been authorised or requested to make any sale or sales, for or on account of the firm of William Howell & Son, either by said firm or by any member of said firm; and shall further find, from the evidence in the cause, that no part of said memorandum is in the handwriting of Mr. Elder, one of the firm of White & Elder, and that no part thereof is in the handwriting of Mr. White, one of said firm of White & Elder, except the words "paper to be satisfactory to the sellers," and the figures "1244," and the figures "9 3/4;" and shall further find, from the evidence in the cause, that a bargain was actually made between the said Mr. White, as one of the firm of White and Elder, and the plaintiffs, in relation to 1244 bags of coffee, belonging to the said Wm. Howell & Son, and that in making such bargain, the said Mr. White professed to act as representing his said firm, as broker for said William Howell & Son, and that the terms of such bargain as made, were, that there should be a credit of six months for payment of the price, and that the said price should be settled for by paper satisfactory to said firm of William Howell & Son, or else in [**12]  cash at the usual discount; and shall further find that no part of said price was paid by the plaintiffs, or on their behalf, and that no part of said coffee was delivered to the plaintiffs, then the said memorandum is not a sufficient note or memorandum of the said bargain to bind the said firm of William Howell & Son, or the defendant, as surviving partner of said firm.

2nd. If the jury shall find the facts set forth in the first prayer of the defendant, as the hypothesis of that prayer, and shall further find, from the evidence in the cause, that the paper signed White & Elder, and dated the 26th of August 1853, and in the following words: [this paper is set out in the plaintiffs' fourth prayer,] was written by the witness, Mr. White, on or after the 5th day of September 1853, and was delivered to the plaintiffs on or after that date, and not before; and shall further find, from the evidence, that on the 29th day of August 1853, the following telegraphic dispatch was received at Baltimore, by the witness, Murgiondo, from the defendant, Mr. Williams, and that Mr. Williams was then at Newport, Rhode Island, [this dispatch is set out in the plaintiffs' second prayer;] and [**13]  shall further find that said dispatch was communicated on the day of its receipt, and shortly after its receipt, to Mr. Elder, one of the firm of White & Elder, and that the said Elder knew and understood that the said telegraphic dispatch was a communication from the defendant, and that said dispatch relates to the said 1244 bags of coffee, and that said Elder, on reading over said telegraphic dispatch, replied that it was all right, or in words to that effect, and that no communication was made to the said firm, or to the said Mr. Murgiondo, or to any agent of the said firm of Wm. Howell & Son, by the said Mr. Elder, or by the said firm of White & Elder, or by the plaintiffs, prior to the 31st day of August 1853, that the refusal of said defendant was not right, or that it was not assented to by the said plaintiffs; and shall further find that, on the 31st day of August 1853, the said defendant had returned to Baltimore, and, on said last mentioned day, informed said Elder, and also informed the said plaintiffs, that he did not approve the said bargain, and that he objected to both the price and the paper; and shall further find that the said memorandum, recited in this paper, was [**14]  made out and signed by said White & Elder, at the request of the plaintiffs, and that express notice of the refusal on the part of the said William Howell & Son, to approve or comply with said bargain, (in case the jury shall find there was such refusal,) had then been given as well to the said White & Elder as to the said plaintiffs, then the said paper above recited in this prayer, is not a sufficient note or memorandum of said bargain, (in case the jury shall find such bargain was made,) to bind the said firm of Wm. Howell & Son or the defendant.

3rd. If the jury shall find the facts set forth in the defendant's first prayer, as the hypothesis of that prayer, and shall further find, from the evidence in the cause, that said Mr. White called, on the 26th day of August 1853, and before he made any conclusive bargain with the plaintiffs, at the counting-room of William Howell & Son, in the city of Baltimore, for the purpose of reporting to said firm of William Howell & Son, an offer for 1244 bags of coffee, at the price of 9 3/4 cents per pound, at six months' credit, and that in so calling, the said Mr. White, intended to be governed by such answer as he might receive from said [**15]  firm in relation to said offer, and either to accept or reject said offer, as the said firm, in the exercise of its discretion and judgment, might elect and direct; and shall further find that such interview then took place at the counting-room of the said William Howell & Son, between said Mr. White and the witness, Mr. Murgiondo, and that afterwards, and on the basis of authority given, or supposed by him to have been given, in such interview, by the said Mr. Murgiondo, the said Mr. White made the bargain, with the plaintiffs, for the sale of the said 1244 bags of coffee, (in case the jury shall find that such bargain was made,) and shall further find that said Mr. White would not have made such bargain, with the said plaintiffs, without having previously reported the offer to the said firm of William Howell & Son, or to one of the members of said firm of William Howell & Son, but for the authority given, or supposed to have been given, by said Murgiondo, in such interview as aforesaid; and if the jury shall further find that said Mr. Murgiondo, in such interview, did not represent himself to have any authority to act definitely, by accepting said offer without the approval of the [**16]  said firm, or, (in case the jury shall find, from the evidence, that the said Mr. Murgiondo did represent himself to have the authority to act definitely, without the previous approval of said firm,) if the jury shall find that he had in fact no such authority; and shall further find that said Murgiondo, without any unnecessary delay, did communicate to the said firm of William Howell & Son, the fact that a sale had been made subject to their approval, and that the said firm promptly and without unnecessary delay, rejected the same, then the bargain made with the plaintiffs, by said White & Elder, (in case the jury shall find the facts aforesaid,) was not a bargain binding on the said firm of William Howell & Son, or on the defendant.

4th. If the jury shall find the facts set forth in the second prayer of the defendant, as the hypothesis of that prayer, and shall further find, from the evidence in the cause, that a bargain was made by Mr. White, as one of the firm of White & Elder, with the plaintiffs, for the sale of 1244 bags of coffee, belonging to the firm of William Howell & Son, at the price of 9 3/4 cents per pound, at six months' credit, on the terms that the paper therefor [**17]  should be made satisfactory to the seller; and shall further find that, by the usage and custom of merchants in the city of Baltimore, a sale of coffee on credit, without any stipulations as to the paper to be given therefor, means that the paper of the purchaser will be received for the price of the coffee, and that in such case the seller would not be entitled to demand paper of other parties, or to require any thing more than the mere paper of the purchasers, and that by the usage and custom of merchants in the city of Baltimore, a sale of coffee on credit, on the terms that the paper shall be made satisfactory to the seller, means that the seller has an absolute and unqualified right to judge for himself as to the satisfactoriness of the paper, and cannot be required to accept any paper except such as the seller may actually agree to accept for the price, then the said memorandum, mentioned in the defendant's second prayer, is not a sufficient or true memorandum of such bargain, in case the jury shall find, from the evidence, that such bargain was made on the terms that the paper should be made satisfactory to the seller.

5th. That the plaintiffs are not entitled to a verdict [**18]  upon the issues joined in this case, unless the jury shall find, from the evidence in the cause, that the plaintiffs, at or before the time of bringing this suit, had actually in their possession, or under their control, a sufficient amount of paper, satisfactory to the said William Howell & Son, to cover the price of said coffee, or satisfactory to the defendant, ready to be handed to the said William Howell & Son, simultaneously with the delivery of the said coffee to the plaintiffs, or had in their possession, or under their control, money sufficient in amount to cover the price of the said coffee, less the usual discount in case of a payment in cash.

6th. If the jury shall find, from the evidence in the cause, that the said William Howell & Son did sell, to the plaintiffs, on the 26th of August 1853, 1244 bags of coffee, in manner and on the terms as testified to by the witness, Mr. White; and shall also find, from the evidence, that the said William Howell & Son, immediately, upon being informed of said sale, (in case the jury shall find said sale,) refused to recognize the same as valid and binding on them; and shall also find that, on the 31st day of August 1853, the said [**19]  firm of William Howell & Son had an interview with the plaintiffs, on said last mentioned day, in the city of Baltimore, and that in such interview, (in case the jury shall find such interview,) positively and expressly refused to ratify or comply with said sale, and then and there, distinctly and expressly, refused to deliver said coffee; and if the jury shall also find that the plaintiffs knew and understood that the said William Howell & Son refused to ratify said sale, and refused to deliver said coffee, (in case the jury shall find such refusal,) then such refusal, on the part of said William Howell & Son, if found by the jury, constituted a breach of the contract of said sale, (in case the jury shall find such sale,) on the said 31st day of August 1853; and if the jury shall further find, from the evidence in the cause, that the said plaintiffs, at the time of such breach, (in case the jury shall find such breach,) had not paid the price, or any part of the price, of said coffee, and had not delivered, or tendered, notes satisfactory to the said William Howell & Son, for the price, or any part of the price, of said coffee, then the measure of damages, in case the jury shall find [**20]  for the plaintiffs upon the issues joined in this case, is the difference, if any, between the price of a lot of coffee, of the same quality and quantity, at the time of such breach, and the price at which the same had been sold, in case the jury shall find such sale, and such interest thereon as the jury may think right; and if the jury shall not find, from the evidence in the cause, that the price, at the time of such breach, (in case the jury find such breach,) had increased beyond the price at which the same had been sold, in case the jury shall find such sale, then the jury, in case they shall find for the plaintiffs, shall find their verdict merely for nominal damages.

The court (LEE, J.) granted all the prayers of the plaintiffs except the first and fourth, which it rejected as offered, but modified the said first prayer by substituting the word "a" for the words "the said" before the word "contract," in the paragraph next to the last in said prayer, and by adding to the fourth prayer the following proviso: "Provided, also, the jury find all the other facts in the cause, going to show the authority of the agents, White & Elder, and the usage of the particular trade governing [**21]  such a sale, as stated in the first and second prayers of the plaintiffs;" and granted the instructions so modified, and rejected all the prayers of the defendant.

In disposing of the prayers, the court made use of the expressions following to the jury, which were reduced to writing by the defendant's counsel at the time, and corrected by the plaintiffs' counsel as here inserted, but in regard to which the court afterwards said, that all the instructions on the law which it meant to give to the jury were contained in the plaintiffs' prayers as granted and modified.

1st. The entry in the book, "paper to be satisfactory," &c., is to be presumed to have been made by Mr. White on the 26th of August--the defendant being at liberty to show, from the evidence, that it was made afterwards.

2nd. That under the phrase, "paper to be satisfactory," &c., it is competent for the plaintiffs to show that it imports that the paper was to be on a credit of six months from the sale, if the evidence shows that, by the usage of trade, coffee was sold on a credit of six months, and that the words quoted, under such usage, import that credit.

3rd. That the entry in the book of White &  [**22]  Elder and the said note, in connection with the entry in the book of William Howell & Son, and Mr. Murgiondo's letter of the 26th of August, may show a sufficient memorandum of the contract within the Statute of Frauds, if the jury find that they contain the names of parties and terms of sale.

4th. That the entry in the books of William Howell & Son, made by Mr. Murgiondo, may be evidence of the correctness of said note, if the jury find that the entry explains and corroborates the said note, in accordance with what they may find to have been the terms of the contract.

5th. That if the jury shall find that, by the usage of trade, or otherwise, under the evidence, the coffee was to be delivered in a reasonable time, then the jury may, in forming their estimate of damages, in case they shall find for the plaintiffs, look to the rise in coffee, even beyond the period when the defendants revoked the authority of White & Elder, even if they find said authority was revoked on the 31st of August 1853, and even if they shall find, from the evidence, that the defendants, expressly and positively, refused to recognize the contract as binding on them, or to deliver the coffee, on the [**23]  said 31st day of August 1853, provided said period of reasonable time be extended beyond said 31st day of August 1853.

The defendant excepted to the granting of each of the several prayers of the plaintiffs as offered and modified, and to the refusal of the court to grant each of the several prayers of the defendant, and to the several additional expressions or declarations of the court to the jury, while delivering its opinion on the prayers. The verdict and judgment were in favor of the plaintiffs, for $ 3065.83 damages with interest and costs, and the defendant appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

A broker having made a contract of sale may authorize his clerk to make and sign an entry or memorandum thereof, under the broker's direction and in his presence, so as to bind the parties named in the contract.

A broker's clerk may reduce the contract to writing and sign the same where he exercises no discretion, but merely acts ministerially, or mechanically under the direction and supervision of his employer, the broker.

An agent may perform a mere ministerial or mechanical act by a subagent or deputy, even where he cannot delegate any portion of his authority requiring the exercise of the least discretion.

As a general rule, written instruments are to be construed by the court alone according to the meaning of the language therein employed, without the aid of parol proof to explain the meaning and intention of the parties thereto.

But in a mercantile transaction, where the terms of a written instrument are technical or equivocal on its face, or are made so by reference to extraneous circumstances, parol evidence of the usage and practice in the trade, is admissible to explain their meaning.

In such case the evidence of usage and surrounding circumstances, is for the jury, and the province of the court is to instruct them conditionally or hypothetically, what should be the proper construction or interpretation of the instrument, as they may find the evidence to support or not the purpose for which it has been offered.

An instruction was granted, to the effect, that a certain entry is a sufficient memorandum in writing of a contract to bind the defendant, provided, the jury find that it "either expressly or according to the sense and signification of its language and figures, under the established usage and custom of merchants in the city of Baltimore, at the time, &c., represented truly and fully the terms of, and parties to, the contract of sale." HELD:

That this instruction was erroneous, because it authorized the jury to construe the entry, or memorandum, without any absolute or conditional construction thereof by the court.

The presumption of law, in the absence of evidence to the contrary, is, that a sold note, or memorandum of sale, executed and delivered to a purchaser, was so executed and delivered on the day on which it bears date.

The memorandum of a sale of a lot of coffee, showed on its face that no time for the payment of the price was stated therein, but the plaintiff had offered uncontradicted evidence tending to prove that by mercantile usage the credit on a sale of coffee is six months, where there is no stipulation to the contrary. HELD:

That a prayer, by the defendant, to the effect that this entry was insufficient, if the jury find that the contract made was a sale on a credit of six months, is erroneous and was properly rejected, because it ignores this proof of usage, the truth of which the court was bound to assume when deciding upon the prayer.

An entry of a sale of coffee not stating any credit, is not an insufficient note, or memorandum, for want of a proper, or any specification of the length of credit, when, by mercantile usage, such a sale is a sale on six months' credit; the entry, in connection with the usage, is an entry of a sale with six months' credit.

A sold note, or memorandum of sale, made out and delivered to the purchaser, by the broker, after the vendor had refused to ratify the sale, and after express notice of such refusal had been given, both to the broker and purchaser, is not a sufficient note or memorandum of the bargain to bind the vendor.

Where a broker has authority to make an absolute sale, not subject to the approval of the vendor, (his principal,) and within the scope of such authority, makes such a sale, it is valid, whether the broker was influenced in making it by the approbation of the vendor's clerk or not, or whether the sale was afterwards objected to by the vendor or not.

A bargain for the sale of coffee, upon the terms, that the paper therefor should be satisfactory to the seller, is not sufficiently evidenced, under the Statute of Frauds, by a note or memorandum which does not mention whether the paper for the price should be satisfactory to the seller or not.

When the evidence relied on, to sustain the facts which are the basis of a prayer, is in conflict, or inconsistent, with other evidence offered by the opposite party, in relation to the same facts, the prayer should not be refused merely because it does not mention or notice the opposing or conflicting evidence.

Where there is conflicting, or inconsistent, evidence, in relation to the same matter, either party has the right to ask the court to instruct the jury what should be the legal effect of their finding that the facts which are made the groundwork of his prayer are true.

In an action, by the purchaser, to recover damages for the non-performance, by the vendor, of a contract for the sale of a lot of coffee, there was no proof that the coffee was to be paid for, either by satisfactory paper or by cash, on any particular day, or at any specified period of time. There was no delivery, or offer of delivery, by the vendor, but, on the contrary, he very promptly, after being informed of the sale, refused to comply with the bargain. HELD:

That the plaintiff was not bound to prove, at the trial, in order to entitle him to a verdict, that at, or before the time of suit brought, he had in his possession, or under his control, sufficient money or a sufficient amount of paper satisfactory to the seller, to cover the price of the coffee, ready to be handed over to the vendor simultaneously with the delivery of the coffee.

In an action for not delivering goods, where no time is fixed for the completion of the contract, the damages must be calculated from the period at which the defendant refuses to perform it; such refusal leaves no locus penitentiae to the defendant, and the plaintiff cannot treat the agreement as any longer subsisting.

Where, in an action for the non-delivery of a lot of coffee, the defendant refused, on a certain day, to ratify the sale and deliver the coffee, and the plaintiff at that time had not paid, or offered to pay, any part of the price, such refusal constitutes a breach of the contract at that time, and the measure of damages is the difference, if any, between the price of a lot of coffee, of the same quality and quantity, at the time of such breach, and the price at which the same had been sold.  

COUNSEL:
Wm. Schley, for the appellant:

1st. The memorandum in the sales-book, or blotter, of White & Elder, offered in evidence by the plaintiffs, was not a sufficient note or memorandum to bind the defendant, if the jury should find the facts set forth in the defendant's first prayer. It did not prove the allegation of the plaintiffs that the defendant had bargained and sold the coffee, for the non-delivery of which this suit was brought. In arguing this point he insisted upon and discussed the following propositions:

1st. The name of William Howell & Son,  [**24]  being written, not by either of the brokers, but by Mr. Hall, their clerk, is not signed by a person duly authorized as required by the Statute of Frauds. Roberts on Statute of Frauds, sec. 369. He said, that by the words of the Statute, the broker was the only party authorized to sign the name in this case--the Statute expressly so enacts--the party, or his agent, must sign, and the agent of the agent cannot do it. A party having a trust or power to execute must do it himself--he cannot delegate his authority--potestas delegata non delegari potest. 1 Parson's on Cont., 71, 72. Story on Agency, secs. 13, 109. He further cited on this proposition: 1 Younge & Jervis, 387, Henderson vs. Barnewall; 30 Eng. C. L. Rep., 392, 394, Gosbell vs. Archer; 9 Ves., 251, Coles vs. Trecothick; 1 Jac. & Walk., 169, Burnell vs. Brown; 3 Merivale, 237, 246, Blore vs. Sutton; 1 Md. Rep., 435, Ijams vs. Hoffman. He further said that the cases of Lord St. John vs. Boughton, 9 Simons, 219, and Smith vs. Jones, 7 Leigh, 165, cited by the appellee's counsel, were different from the present and could not control its decision; that the former was a case simply of a signing by an agent and not by the agent of [**25]  an agent, and the latter the case of the clerk of an auctioneer, who acts openly at the sale as the agent of both parties.

2nd. The memorandum is not signed at all by the defendant, by the plaintiffs, or by the brokers. A sufficient memorandum ought to show, not merely the parties to the contract, the subject-matter, the price and terms, but ought to show, ex-facie, that it was signed by the party to be charged, or by some agent thereunto properly authorized. 15 Pick., 307, Brewster vs. Hobatt.

3rd. The memorandum, as originally made, left out many material and essential terms of the bargain as proved. It did not show whether the price was to be paid in cash, or on credit, or what length of credit, and whether on security or how. It did not say whether delivery was to be made before payment or after payment, or when, nor the quantity of coffee sold. It did not show that the paper was to be made satisfactory to the vendors, as proved by Mr. White. Now a sufficient memorandum must show all terms and conditions without resort to parol proof. Story on Sales, secs. 269, 271. 11 East., 142, Boydell vs. Drummond. 9 Eng. C. L. Rep., 286, Kenworthy vs. Schofield. 13 Mees. & Wels.  [**26]  , 743, Pitts vs. Beckett. 26 Wend., 341, Davis vs. Shields.

4th. The additions made to the memorandum, by Mr. White, at a subsequent period, (and there was evidence from which it might have been found that they were made many days afterwards,) could not make it good. If not good, ab initio, it cannot be supplied. The entry must be contemporaneous. 1 Duer., 132, Galet vs. Cowdry. 1 Cal., 415, Craig vs. Godfroy.

2nd. But even if the memorandum was in form sufficient, the brokerhad no authority in fact to make it. 1st. Because if the evidence of Mr. Wright and Mr. Jenkins, as to usage, was accredited, the usage proved by them, limited the authority of the brokers to the mere office of middle-men, only authorized to contract subject to approval. They were bound to report the offer before acceptance. Russell on Factors, 453. 2nd. The authority of the brokers was limited in its duration. It was not merely revocable but was temporary in its character. The evidence of Mr. Wright, as to usage in this respect, is very decided. Blackburn on Sales, 115. 4 Camp., 279, Dickinson vs. Lilwall. 2 Eng. C. L. Rep., 325, Dickenson vs. Lilwall. 3rd. The additions made to the memorandum, (and without [**27]  which it was unmeaning,) were made after the revocation of any authority to contract. There was evidence from which it might have been found by the jury, that the entry was not made until the 5th of September. 4th. But even if Mr. White had the authority, as broker, to make this memorandum, (if he had intended to act on the basis of this authority,) yet there is evidence from which it could properly have been found that he did not really act on such basis, but acted in virtue of a supposed special authority.

3rd. There is no sufficient evidence of a special authority. The clerk of the defendant had no authority to bind the defendant, and of course could impart none to Mr. White. The evidence of Mr. White showed that he acted on the basis of the supposed confirmation of the sale by Murgiondo, and the latter proves that he had no authority and did not assume to have any.

4th. The sold note, or memorandum of sale given by Mr. White to the plaintiffs, does not conform to the actual agreement as proved. It omits the very essential condition, that "the paper was to be satisfactory to the sellers." Without the addition of this material condition, the memorandum would have been good [**28]  for nothing, because of the variance between it and the real contract as proved. The sold note (according to the evidence of Mr. Jenkins, as to usage,) was for the paper of the appellees alone. Story on Sales, secs. 269, 271.

5th. This sold note, according to the recollection of Mr. White, was delivered after the revocation of his authority to sell.

6th. To maintain the suit, the plaintiffs must prove the averment, that they were ready and willing to give satisfactory paper. It was a case of concurrent conditions. 11 G. & J., 445, Oliver vs. Palmer. 11 Barb., 268, Draper vs. Jones. They must show not merely that they could have procured satisfactory paper, but that they had it. 2 Bos. & Pull., 447, Waterhouse vs. Skinner. 2 Hall, (Y. N. Rep.) 414, White vs. Demilt. 12 Johns., 209, Porter vs. Rose. 5 Cowen, 404, Topping vs. Root.

7th. The damages in such a case are the damages at the time of the breach. The distinction between a case where the price has not been paid wholly or in part, and where payment has been made, is well established. Sedgwick on Damages, 93. 3 Wheat., 200, Shepherd vs. Hampton. 3 Mass., 390, Gray vs. Portland Bank. 3 Cranch, 298, Douglass vs. McAllister.  [**29]  2 Barn. & Cress., 624, Gainsford vs. Carroll. 8 Taunt., 540, Leigh vs. Paterson. 2 East., 211, Shepherd vs. Johnson. 2 Taunt., 257, McArthur vs. Lord Seaforth. 7 Cowen, 681, Clark vs. Pinney. 1 Md. Rep., 341, Middlekauff vs. Smith. 6 H. & J., 300, Cannell vs. McLean. 9 Gill, 251, Marshall vs. Haney, and same case in 4 Md. Rep., 498. 1 H. & G., 464, Williamson vs. Dillon. 3 Phillip's Ev., Note 299. 5 Phillips' Ev., 193, in notes.

Applying the general principles above stated, the instructions given by the court cannot be sustained. Besides the general objections, there are special objections to all the prayers of the plaintiffs.

The first, as originally propounded, not only assumes that the entry might be validly made in part by the broker's clerk, and might be subsequently changed by the broker, by additions thereto, but affirms, as matter of law, that said note was a memorandum to bind the defendant, without leaving it to the jury to find, as matter of fact, whether said memorandum did or did not conform to the agreement actually made. The proviso was no doubt intended to avoid this objection, but the proviso leaves it to the jury to construe the sense and signification of [**30]  the entry, (which, being in writing, was the office of the court,) and authorizes the jury to decide whether said entry, as they may interpret its sense and signification, correctly shows the parties to, and the terms of, the assumed contract with the plaintiffs. This prayer affirms that an entry made, in part, by the clerk of a broker, if made under the actual presence, direction and supervision of the broker, and subsequently completed by the broker himself, whether so completed on the same day, or on a subsequent day, if made before the revocation, by the principal, of the authority, is sufficient to bind the principal, if, in other respects, the memorandum complies with the statute; and it further affirms that, in order to show the sufficiency of the memorandum in other respects, the jury may find as a fact that the memorandum represents, truly and fully, the terms of, and parties to, the contract, either expressly, that is, by its legal interpretation, or by the meaning of its language and figures, under an assumed established usage and custom of merchants in Baltimore. But it does not give the court's interpretation of the memorandum, considered per se, nor does it state the [**31]  supposed custom and usage, nor does it ask the court to say that such supposed custom and usage is a valid one, nor does it leave it to the jury to find the existence of any custom, but really assumes the existence of an unexplained, assured, established custom. 10 Md. Rep., 248, Burroughs vs. Langley. 7 G. & J., 321, Dorsey vs. Eagle. 6 Md. Rep., 37, Foley & Woodside vs. Mason.

The second prayer leaves it to the jury to find that Murgiondo was authorised and empowered by Wm. Howell & Son to accept an offer for the coffee in question, whereas there was no evidence from which the jury could properly find such authority. It leaves it to the jury to find that Murgiondo acted within the scope of his authority in accepting the offer, or in confirming the sale, whereas there is no evidence of the existence of any authority, much less of its extent. It moreover declares, that the entry by Murgiondo, the letter to Williams, and his telegram, constitute a sufficient memorandum of the sale, and leaves the jury to find the meaning of said documents, from usage and custom, whereas there was no proof of usage and custom in relation to the meaning of any of said documents.

The third prayer [**32]  is compounded of the first and second, and is liable to the same exceptions.

The fourth makes the bought note a sufficient memorandum, notwithstanding the objections already stated, and the special objection that it was made after the revocation of the authority claimed to have been given to White & Elder. Besides, the provisos are very vague and indefinite, and calculated to mislead the jury--at least, to embarrass and confuse them in deciding the case.

The fifth assumes that it was necessary for the plaintiffs to establish, as a fact in the cause, that the bought note was actually written and delivered before the dissent of the defendants, and before the revocation of the authority of White & Elder, if any existed; and, by granting the prayer, the court makes the act of a mere witness prima facie evidence against the defendants. Even if it might be presumed, from the date, that it was written on day of its date, on what principle can it be inferred that it was delivered on that day? The natural order is changed, and the onus is put on the defendants of disproving what the plaintiff ought to prove affirmatively.

It is not deemed necessary to refer to the prayers of [**33]  the defendant, as they have already been sufficiently considered in discussing the several points above stated.

But the verbal instructions given by the judge to the jury, although stated as not meant, or intended to be given, as additional to the several instructions contained in the granted prayers, yet they were explanatory of the court's views and opinions, and even if counsel had been at liberty to argue to the contrary, (7 G. & J., 341, Sowerwein vs. Jones,) yet they were well calculated to mislead and influence the jury, and to embarrass the defendant's counsel in argument.

John H. Thomas and S. Teackle Wallis, for the appellees, argued:

1st. That the entry in the sales-book of White & Elder, under the circumstances testified to by White, if it contained expressly or according to the mercantile interpretation of it, the terms of and parties to a contract of sale made by them, within the scope of their authority was a sufficient memorandum, under the Statute of Frauds, to bind their principals. Story on Sales, sec. 266. Story on Cont., sec. 786. Story on Agency, sec. 28. Russell on Factors and Brokers, 67. Dunlap's Paley's Agency, 176, note (n,) 315, note (g.)  [**34]  6 Eng. Law & Eq. Rep., 299, Sivewright vs. Archibald. 1 Younge & Jervis, 395, Henderson vs. Barnewall. 12 Johns., 105, Merritt vs. Clason. 14 Johns., 484, Clason vs. Bailey. 26 Wend., 341, Davis vs. Shields. The appearance of the name of the party to be bound, in any part of the paper is a sufficient signature. 5 H. & J., 117, Batturs vs. Sellers. 1 H. & G., 152, Higdon vs. Thomas. The validity of the memorandum is not affected by the fact that it was made partly by Hall. White & Elder made the contract and did every thing requiring the exercise of judgment or discretion. They entrusted to him nothing but a mere mechanical duty, and that was performed under White's immediate supervision, who completed the memorandum, by adding thereto the material part, which contained the price and terms of sale. Parsons' Mercantile Law, 155, note 7. Dunlap's Paley's Agency, 176. 1 Amer. Lead. Cases, 589. 2 Cox's Ch. Cases, 84, Ex-parte Sutton. Browne on Statute of Frauds, 352, 383, sec. 369, and note 5. 1 Md. Rep., 435, Ijams vs. Hoffman. 9 Simons, 219, Lord St. John vs. Boughton. 7 Leight, 165, Smith vs. Jones. 7 Blackf., 568, Hart vs. Woods. 3 Wend., 386, Frost vs. Hill. 11 Cush., 127, Fessenden [**35]  vs. Mussey. 4 Barn. & Adol., 443, Bird vs. Boulter. Writing the appellants' names was not the material part; it would have made no difference if they had been printed, (2 Kent, 511; Browne on Statute of Frauds, 356; 2 Parson's on Cont., 289) or if they had not appeared at all. 14 How., 456, Salmon Falls Manf. Co. vs. Goddard. 5 G. & J., 401, Bernard vs. Torrance. 5 H. & J., 117, Batturs vs. Sellers. White's adding the price and terms, made what had been done by Hall as much his act as if it had been written by his own hand. It is said, by the appellant's counsel, that the Statute requires the signing by the party, or his authorized agent, and that the clerk of the agent is not the agent of the party. The word agent is used in the Statute in its ordinary common law acceptation. An agent may make his clerk do a mere mechanical act. He cannot delegate those things requiring integrity, intelligence, fidelity, or the exercise of discretion--he cannot send his clerk out to make the contract of sale, but such a delegation of power is quite different from a case like this, where the agent merely uses the hand of the clerk, acting under his eye and supervision, to perform a mere mechanical [**36]  act. The hand of the clerk exercise no discretion or intelligence. But if it be conceded, as the authorities establish, that the memorandum, or any part of it, may be printed, this is a concession of the power of the clerk to do the same mechanical act as the man who sets up the type. The appellees were entitled to show, as they did, by the testimony of White & Elder, that this entry and the other memoranda which they relied on as binding the appellant, contained, according to the received mercantile interpretation of them, the terms of the contract which was made. 14 How., 456. 7 G. & J., 321, Dorsey vs. Eagle. 10 Md. Rep., 248, Burroughs vs. Langley. 9 G. & J., 220, Powell vs. Bradlee. The question, when White added his part to the memorandum, is not raised by the prayers on the part of the appellants. The presumption is that it was made on the same day. 6 Md. Rep., 86, Barry vs. Hoffman. It is said that the proviso to this prayer submits a question of law to the jury, but, upon a proper construction of its language, we do not think it is objectionable on this ground. We do not think it submits to the jury the interpretation of a written contract. For these reasons the appellees'  [**37]  first and fourth prayers were properly granted and the appellant's first prayer properly refused.

2nd. That the entry made by Murgiondo, in appellant's sales-book, as a memorandum of a sale made or confirmed by him, within the scope of his authority, is sufficient under the Statute of Frauds to bind his principals. At all events the other papers enumerated in the second and third instructions, his letters, Williams' telegram, and the entry in White & Elder's sales-book may be connected together, if made by competent authority, and from them all the terms of sale can be gathered. Smith on Cont., 75, 76. Browne on Statute of Frauds, 350. 14 How., 456, 457. 6 Md. Rep., 10, Atwell vs. Miller. 2 Parsons on Cont., 285, 286, note (c.) And the second and third prayers of the appellees were properly granted.

3rd. That the presumption of law is, in the absence of evidence to the contrary, that the memorandum given by White & Elder to the appellees was, as affirmed by their fifth prayer, written on the day of its date. 11 Md. Rep., 232, Williams vs. Banks. 3 Md. Rep., 228, Glenn vs. Grover. 6 Md. Rep., 86, Barry vs. Hoffman.

4th. That the circumstances enumerated in the appellant's [**38]  second prayer did not revoke the authority of White & Elder to give a memorandum of a sale which they had previously made with proper authority. The appellants, even if they so intended, had no right to prevent them from giving it. Williams, in his interview with Elder, did not pretend to deny that the sale was binding on the appellants, but only said they would exercise their right to be very particular about the paper, and the brokers could not have abandoned, even if they had so intended, the rights of the appellees. 5 G. & J., 384, Bernard vs. Torrance. 7 Md. Rep., 259, Creager vs. Link. Story on Agency, sec. 467. 5 H. & J., 120, Batturs vs. Sellers. The Statute of Frauds only requires the sale to be evidenced by writing, and the appellants had no more right to prevent White & Elder from giving such evidence than from giving their testimony on the stand. 2 Parson's on Cont., 337, and note (h.) 2 G. & J., 227, Stoddert vs. The Vestry, &c. 14 Eng. Law & Eq. Rep., 247, 248, Leroux vs. Brown. Browne on Statute of Frauds, 117. 5 Md. Rep., 73, Albert & wife vs. Winn & Ross.

5th. That the authority of White & Elder to make the sale was a question of fact to be found by the jury;  [**39]  and if they did, within the scope of their authority, make an absolute sale, not subject to the approval of the appellants, it is immaterial whether White was influenced by the supposed approbation of Murgiondo or not, or whether the appellants afterwards objected to it or not. That which is good and valid cannot be rendered defective by something that would have been surplussage if resorted to and used. The question is not what White & Elder thought about their authority, but whether they had it, in fact, or not. 16 How., 25, Turner vs. Yates. The appellant's third prayer was, therefore, properly rejected.

6th. That the testimony of Jenkins, on which the appellants' fourth prayer is based, obviously refers to a sale made by a broker, under what the witness considers his ordinary authority, merely to report an offer to his principal, and deriving its validity from the approbation of the latter. The approval by the principal of the sale on credit, under such circumstances, is equivalent to a sale made by himself on credit, when he would be obliged, if nothing had been said about the satisfactoriness of paper, to take that of the purchaser, because he had stipulated for no other.  [**40]  The witness in speaking of the mercantile interpretation of the paper which was given to the appellees, clearly means to confine it to such a case; for until a hypothetical case is afterwards put to him by the appellees' counsel, he is unable to imagine one in which a broker would be entitled to make a sale otherwise than subject to the approval of his principal; he says, "whenever the broker has authority to sell at a particular price the principal has a right to determine whether the paper is satisfactory or not." The memorandum in question, therefore, unless made by a broker authorized to do more than simply report an offer, i. e., to make a positive sale, means, in the opinion of the witness, as in that of White and Elder and Chapman, that the seller has a right to judge of the satisfactoriness of the paper. Except upon the hypothesis of a sale on credit, reported by a broker for the approbation of his principal and by him approved, which approbation would import an agreement to accept the paper of the purchaser alone, there is no evidence whatever to support the prayer-- for Jenkins concurs with the other witnesses in saying, if the sale be simply made by the broker and not afterwards [**41]  approved by the principal, the latter has a right to determine whether the paper is satisfactory. There was, therefore, no evidence to support the prayer, as applicable to a sale made by a broker, as in this case, and not subsequently approved by the principal--dependent for its validity, not upon the subsequent approbation of the principal, but upon the original authority of the broker. The prayer in question is liable moreover to a fundamental and fatal objection. It asks the court, substantially, to instruct the jury, that if a sale, without any express stipulation as to the character of the paper to be given, does not, according to usage, authorize the vendor to require satisfactory paper, then of consequence and as matter of law, a memorandum, containing no stipulation as to paper, is no sufficient or true memorandum of a bargain, in which the paper was to be made satisfactory to the vendor. The prayer ignores altogether the evidence of Mr. Elder, given and received without objection, wherein it is expressly stated that, as a matter of mercantile usage, the very memorandum in question signifies precisely what the prayer requires the court to declare as matter of law, that it does [**42]  not. The evidence of Mr. Jenkins, even if properly construed, as contradicting that of Mr. Elder, can establish, at the most, only a conflict of evidence as to the meaning attached by mercantile custom to certain words. This conflict it was for the jury to reconcile, and not for the court to overlook or override. The appellants' fourth prayer was, therefore, properly rejected.

7th. That the appellees offered to perform all the obligations imposed by the contract upon them, and as the appellants refused to comply with their part of it, the former were not bound to prove that they had either the money or the notes ready to hand over contemporaneously with the delivery of the coffee. How could we furnish paper satisfactory to parties who refused any paper, and utterly disclaimed any rights of ours under the contract? 7 Md. Rep. 314, Balto. & Ohio R. R. Co. vs. Resley. 2 Md. Rep., 60, Bull vs. Schuberth. 1 Chitty's Plead., 326, 330. 1 Arch., N. P. in 49 Law Lib., 66. 7 Taunt., 315, Levy vs. Lord Herbert. 18 How., 519, Watson vs. Tarpley.

8th. That even if the appellants had, on the 31st of August, refused to comply with the terms of sale, of which, however, there is no evidence,  [**43]  they were still entitled, as a matter of law, to a reasonable time after demand to do so. 14 How., 455, 456. They were entitled to it by usage, and, until the expiration of that reasonable time, there was no absolute breach of the contract. The appellants had a locus penitentiae, and could have complied with the terms of sale, and have prevented their liability to a suit, notwithstanding their previous refusal. The appellees would have been no more entitled to sue before, than on a note not due, which they were told the makers could not and would not pay at maturity. The proper measure of damages is the value of the coffee when it ought, under the contract, to have been delivered, and the jury were, therefore, entitled to go beyond the 31st of August, if the appellants might, without a breach of the contract, have postponed the delivery beyond that time. 1 H. & G., 464, Williamson vs. Dillon. 6 H. & J., 301, Cannell vs. M'Clean 3 Cranch, 298, Douglass vs. McAllister. 1 Md. Rep., 343, Middlekauff vs. Smith. 75 Eng. C. L. Rep., 691, Hochster vs. De La Tour. 2 Parsons on Cont., 481. Mayne on Damages, 91. The appellants' sixth prayer was, therefore, properly refused.

The remarks of [**44]  the judge are not before this court for review, for he says, "all the instructions on the law which he meant to give to the jury, were contained in the plaintiffs' prayers as granted and modified." 

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*246]  ECCLESTON, J., delivered the opinion of this court:
At the trial of this cause, the plaintiffs offered five prayers; the 2nd, 3rd and 5th, were granted without alteration, and the 1st and 4th were modified, by the court, and then granted. The defendant offered six prayers, all of which were refused.
The judgment was rendered for the plaintiffs upon a verdict in their favor, and the defendant appealed.
One bill of exceptions contains all the evidence and all the prayers.
The plaintiffs examined A. A. White as a witness, who gave evidence tending to prove that White & Elder, as partners, were engaged in the business of merchandise brokers, and in the sale of merchandise on commission. That White as a member of said firm, and under authority from William Howell & Son, made the sale of coffee now in dispute. 

 [*247]  That White then ordered R. W. Hall, the clerk of White & Elder,  [**45]  to make an entry of the sale in the blotter of the firm, as said firm usually did in their blotter. That the entry was accordingly made by Hall, in part, and afterwards completed by White; which entry is as follows:

________________________________________________________________________________

"1853, Augt. 26.	C. W., 1244 bags Rio coffee.	
Wm. Howell & Son.	Paper to be satisfactory	
Woods, B. & Co.	to the sellers.	
	G  1	26	
	W  2	42	
	3	27	
	4	62	
	5	24	
	6	70	
	7	60	
	8	58	
	9	72	
	10	85	
	11	38	
	12	39	
	13	43	
	14	68	
	15	101	
	16	30	
	17	95	
	18	34	
	19	26	
	20	60	
	21	52	
	22	16	
	23	56	
	24	60	1244	9 3/4"	
________________________________________________________________________________

The said White, also testified that all of this entry is in the handwriting of Hall, except the figures "9 3/4," and the words "paper to be satisfactory to the sellers;" which excepted figures and words are in the handwriting of the witness, who further stated, on cross examination, that he stood at the table by Hall, while Hall made the entries.
The plaintiffs, in their first prayer, insist that "the said entry is a sufficient note or memorandum, in writing, of a contract, to bind the defendant in this action." The correctness of this proposition is denied [**46]  by the appellant, for the reason that, if the memorandum was signed at all, it was signed, not by a broker, but by a broker's clerk, who had no authority to do so, the latter acting as sub-agent, only, of the former, who was but an agent himself, in a transaction or business, which prohibited any delegation of his authority to a sub-agent. But the appellees consider the memorandum equally as valid and binding as if it had been prepared and signed by White himself; because it was written and signed, in the blotter or sales-book of White & Elder, by Hall, their 

 [*248]  clerk, under the direction of White, he standing by the table whilst Hall made the entry, so far as it was made by him.
Apart from all other objections urged by the appellant to the appellees' first prayer, supposing White & Elder had authority to make sale of the coffee, and did make a sale thereof, and that the terms of said sale are correctly and sufficiently set forth in the entry or memorandum on the blotter of White & Elder, we propose, in the first place, to inquire whether the entry or memorandum is a valid and binding entry or memorandum of the sale, notwithstanding it is all in the handwriting of Hall, their [**47]  clerk, except the figures "9 3/4," and the words, "paper to be satisfactory to the sellers," which are in the handwriting of White? This inquiry presents the legal question, argued before us by counsel, whether a broker, having made a contract of sale, can authorise his clerk to make and sign an entry or memorandum thereof, under his direction and in his presence, so as to bind the parties named in the contract?
This question does not seem to have been conclusively settled. Whilst there are authorities which may be considered as favoring the doctrine that although a broker may, as an agent, make and sign a valid contract, for his principal, yet his agency is such that no portion thereof, under any circumstances, can be delegated to his clerk, there are others which speak of it as an open question, and others, again, seem to sustain the authority of the clerk to reduce the contract to writing, and sign the same, where he exercises no discretion, but merely acts ministerially or mechanically, under the direction and supervision of his employer, the broker. As authorities of the first class, reference is generally made to Blore vs. Sutton, 3 Merivale 237, and Henderson  [**48]   vs. Barnewall, 1 Younge & Jervis 387.
In Browne on Stat. of Frauds, sec. 369, after stating the authority of an auctioneer's clerk to write down the name of the buyer, under his principal's direction, the author says: "It has been decided that the rule did not embrace the clerk of a broker." The decision referred to in this note is Henderson vs. Barnewall. And the writer adds: "But even this 

 [*249]  seems now to be open to question." As authority for saying which, he cites Townend vs. Drakeford, 1 Carr. & Kirw. 20.
In Story on Agency, sec. 13, the learned writer treats of the "DELEGATION OF AGENCY." He there states that a factor cannot ordinarily delegate his employment, as such, to another; after which he says: "The same rule applies to a broker; for he cannot delegate his authority to another to sign a contract in behalf of his principal, without the assent of the latter. The reason is plain; for, in each of these cases, there is an exclusive personal trust and confidence reposed in the particular party. And hence is derived the maxim of the common law: delegata potestas non potest delegari." This is but the enunciation of the general rule, that,  [**49]  ordinarily, a broker cannot delegate his authority. For the principle just stated is, that a "factor cannot, ordinarily, delegate his employment," and then it is said, "the same rule applies to a broker." In addition to which, the reason for the rule as stated, is, because there is an exclusive personal trust and confidence reposed in the broker. Surely the reason of the rule cannot be applicable where the broker stands by whilst the clerk signs the contract, under his direction, leaving no act of discretion for the clerk to perform.
The propriety of permitting an agent to perform a mere ministerial or mechanical act, by a sub-agent or deputy, even where he could not delegate any portion of his authority, requiring the exercise of the least discretion, is well considered, in the opinion of the Supreme Court of New York, delivered by Mr. Justice Cowen, in Com. Bank of Lake Erie vs. Norton, 1 Hill, 504. And there the cases of Blore vs. Sutton and Henderson vs. Barnewall are referred to. The court quote the language of Lord Ellenborough in Mason vs. Joseph, (1 Smith's Rep., 406,) when speaking of an agent in relation to a mere ministerial [**50]  act, he says: "Suppose, for instance, he had got the gout in his hands, and could not actually sign himself, he might have authorized another to sign for him."
In Parsons' Mercantile Law, 155, Note 7, many authorities 

 [*250]  are cited in relation to the power of an agent to appoint a sub-agent, and then it is said: "A broker cannot delegate his authority." "Nor can a factor." After stating each of these propositions, the writer cites authorities, and then says: "But the power to perform a merely ministerial act, involving the exercise of no discretion, may be delegated." Then he refers to Mason vs. Joseph, 1 Smith 406, per Lord Ellenborough; Commercial Bank of Lake Erie vs. Norton, 1 Hill, 501, and other cases.
In 1 American Lead. Cases 589, (Ed. of 1857,) the principle is recognized, that a merely ministerial or mechanical act may be done by a sub-delegate. And the above mentioned case, in 1 Hill, is there referred to.
After mature reflection we are not prepared to sustain the objection to the appellees' first prayer, urged by the appellant, upon the ground that the entry or memorandum is invalid, because it was chiefly prepared [**51]  and signed by Hall, the clerk. The prayer submits to the jury the inquiry, whether the entry, so far as Hall participated therein, was made by him, under the order of White, and in his presence, also whether the other portion thereof was completed by White. And there is evidence tending to prove such facts. Believing that, under such circumstances, the clerk should not be considered as performing an act of delegated authority, requiring the exercise of any discretion, but merely a ministerial act, under the order and in the presence of White, as one of the firm of White & Elder, the appellant's objection to the prayer is not, in our opinion, a valid objection.
The appellant says this prayer is erroneous, because the proviso therein requires the jury to find the "established custom and usage of merchants in the city of Baltimore," without pointing to, or specifying any particular custom or usage, when the testimony speaks of usages which relate to several points in controversy, in regard to the disputed contract; and also because the proviso authorizes the jury, without the aid of the court, upon their own views of the custom and usage which they may find, and the other proof in the [**52]  cause, in connection with the entry, to decide whether the entry, 

 [*251]  "either expressly or according to the sense and signification of its language and figures," did represent, "truly and fully the terms of, and parties to, the contract of sale."
It is a well settled general rule that written instruments are to be construed by the court alone, according to the meaning of the language therein employed, without the aid of parol proof to explain the meaning and intention of the parties thereto. If, however, in the case of a mercantile contract, "the instrument be not clear and unequivocal, evidence of the usage or course of trade at the place where the contract is to be carried into effect, is admissible to explain the meaning and remove the doubt." 2 Kent's Com., 556, (5th Ed.)
A note or memorandum of a contract came before the Supreme Court, in the case of Salmon Falls Manufacturing Co. vs. Goddard, 14 How. Rep. 454. There, after stating what the Statute of Frauds requires to constitute a valid note or memorandum of a bargain, the court say: "This brief note of the contract, however, like all other mercantile contracts, is subject to explanation by reference [**53]  to the usage and custom of the trade, with a view to get at the true meaning of the parties." And again: "Although specific and express provisions will control the usage, and exclude any such explanation, yet, if the terms are technical, or equivocal on the face of the instrument, or made so by reference to extraneous circumstances, parol evidence of the usage and practice in the trade, is admissible to explain the meaning." See, also, Browne on Statute of Frauds, sec. 380.
Whilst the above authorities show that in a mercantile transaction, when the terms of a written instrument are technical, or equivocal on its face, or are made so by reference to extraneous circumstances, parol evidence of the usage and practice in the trade, is admissible to explain their meaning, the principle applicable to such a case is, that the evidence of usage, and the surrounding circumstances, in explanation and illustration, is for the consideration of the jury, the province of the court being, to instruct them, conditionally or hypothetically, what should be the proper construction or interpretation of the written instrument, as they may find the evidence 

 [*252]  either to support or not to [**54]  sustain the purpose for which it has been offered. This view, we think, is sustained by Eaton vs. Smith, 20 Pick. 156, and Neilson vs. Harford, 8 Mees. & Welsby 823. See, also, Morrell vs. Frith, 3 Mees. & Wels. 406.
In Eaton vs, Smith, C. J. Shaw, in delivering the opinion of the court, says: "When a new and unusual word is used in a contract, or when a word is used in a technical or peculiar sense, as applicable to any trade or branch of business, or to any particular class of people, it is proper to receive evidence of usage, to explain and illustrate it, and that evidence is to be considered by the jury; and the province of the court will then be, to instruct the jury what will be the legal effect of the contract or instrument, as they shall find the meaning of the word, modified or explained by the usage."
Speaking for the court, in Neilson vs. Harford, Baron Parke says: "Then we come to the question itself, which depends on the proper construction to be put on the specification. It was contended that of this construction the jury were to judge. We are clearly of a different opinion. The construction of all [**55]  written instruments belongs to the court alone, whose duty it is to construe all such instruments, as soon as the true meaning of the words in which they are couched, and the surrounding circumstances, if any, have been ascertained as facts by the jury; and it is the duty of the jury to take the construction from the court, either absolutely, if there be no words to be construed as words of art, or phrases used in commerce, and no surrounding circumstances to be ascertained; or conditionally, when those words or circumstances are necessarily referred to them. Unless this were so, there would be no certainty in the law; for a misconstruction by the court is the proper subject, by means of a bill of exceptions, of redress in a court of error; but a misconstruction by the jury cannot be set right, at all, effectually."
Without any construction of the entry given by the court, either absolute or conditional, the proviso in the prayer as granted, instructed the jury to inquire and to determine, themselves, whether the entry represented truly and fully the 

 [*253]  terms of, and parties to, the contract of sale. They were to ascertain whether the entry did this, "either expressly, or [**56]  according to the sense and signification of its language and figures, under the established custom and usage of merchants, in the city of Baltimore, at the time--if they should find such custom and usage--and the other proof in the cause." This was submitting to the jury, not merely to ascertain the meaning of technical, or equivocal terms, words and figures, or phrases used in trade, according to the usage of trade, but it authorized the jury to ascertain the terms of the verbal contract, also to ascertain by their own interpretation of the entry, whether it expressly represented truly and fully, the terms of the said verbal contract, and if not expressly, whether, according to their interpretation of the sense and signification of the language and figures of the entry as ascertained by the aid of such custom and usage as they might find, and the other proof in the cause, the entry corresponded with the contract as made and truly and fully represented the terms thereof. In other words, the prayer authorized the jury to construe the entry or memorandum, without any absolute or conditional construction thereof by the court. This was erroneous, and the prayer should not have been granted.  [**57]  
The plaintiffs' second prayer begins by saying: "If the jury shall find, from the evidence, the facts in the plaintiffs' first prayer," and concludes with a proviso, which is considered erroneous, for the reasons assigned in objection to the proviso contained in the first prayer.
The third prayer is compounded of the first and second, and the reasons given for holding that they were improperly granted, are also applicable to the third.
The fourth prayer is compounded of the first and second, and the first proviso contained in this is obnoxious to the objections, for which we have considered the proviso in the first prayer erroneous. The proviso thereto, added by the court, is also considered erroneous, because it was calculated to mislead the jury.
The fifth prayer of the plaintiffs, we think, was properly 

 [*254]  granted. The proposition contained therein is sustained by Glenn vs. Grover, 3 Md. Rep. 212; Barry vs. Hoffman, et al., 6 Md. Rep. 78, and Williams vs. Banks, 11 Md. Rep. 198.
Having examined the plaintiffs' prayers, we will now consider those of the defendant.
The first asked an instruction to the jury [**58]  that, if they should find the facts therein specified, then the entry on the blotter is not a sufficient note or memorandum of the bargain. The first ground of objection to the entry is the participation therein of Hall, the clerk. The views expressed on this subject, whilst considering the plaintiffs' first prayer, are deemed sufficient to show that this is not a valid objection to the entry; and, therefore, the refusal to grant the prayer now before us is not erroneous, so far as relates to this question.
The entry is set forth in the prayer, which shows that no time for payment of the price of the coffee is stated therein. And for the purpose of presenting an objection to the entry, because it contains no specification of any credit or time of payment, the prayer submits the proposition that if the jury shall find a bargain, in relation to the coffee, was made, "and that the terms of such bargain as made, were, that there should be a credit of six months, for payment of the price, and that the said price should be settled for by paper satisfactory to said firm of William Howell & Son, or else in cash at the usual discount," that no part of the price was paid, and no part of the [**59]  coffee was delivered, "then the said entry is not a sufficient note or memorandum of the said bargain to bind said firm." The position here taken is, that if the jury should find the contract made was a sale upon six months' credit, inasmuch as the entry makes no mention of any credit, the contract is not truly and correctly represented by the entry, and, therefore, it is not a sufficient note or memorandum of the contract to bind the firm of William Howell & Son, or the defendant, as surviving partner of said firm.
Admitting that by the express terms of the contract, as made, there was to be a credit of six months, and there is no credit mentioned in the entry, nevertheless, the 

 [*255]  court committed no error in refusing to grant the instruction prayed for. The plaintiffs had offered uncontradicted evidence tending to prove that, by mercantile usage, the credit on a sale of coffee is always six months, where there is no stipulation to the contrary. The truth of that evidence the court were bound to assume, when considering whether the defendant's prayer should be granted or not. Viewing the entry in connection with the conceded truth of such evidence, it could not be considered [**60]  an insufficient note or memorandum, for want of a proper, or any specification of the length of credit. Being an entry for a sale of coffee, and no credit stated, it was, according to the proof of the usage, an entry of a sale with six months' credit. At least it was proper that the court should have regarded such to have been the effect of the evidence, when deciding upon the prayer.
In Cole vs. Hebb, 7 G. & J. 20, the county court had refused a prayer which had been offered at the instance of the defendant, who became the appellant. The Court of Appeals approved of this refusal, and held, that: "In granting an instruction at the request of the defendant, the court must assume the truth of all the facts of which the plaintiff had offered testimony, legally sufficient to warrant the jury in finding them, which are not inconsistent with the facts, the belief of which by the jury was made the groundwork of the prayer."
In Wilson, Adm'r ad col. of Owens, vs. Smith, 10 Md. 67, it is said by the court: "The prayer on the part of the defendant does not present all the facts, but only a part of them, studiously excluding all allusion to the evidence [**61]  in regard to the state of the records of the register of wills, and of the declarations of Mrs. Owens and Lowe, that no letters of administration had been granted. Although it is the right of a party to segregate a portion of the testimony in a cause, and ask the opinion of the court upon it, (1 Gill 127,) yet the court will not grant such instruction, if it be such as will likely mislead the jury; and we consider the direction asked on the part of the defendant of such a character."
In McTavish vs. Carroll, 7 Md. 352, the court says: 

 [*256]  "It is certainly true, that when the proof the defendant, if believed by the jury, would establish any proposition inconsistent with the theory of the plaintiff's prayer, which is based upon his own evidence, such prayer cannot be given, because it must assume or admit the truth of all the defendant's proof on the subject."
The hypothesis of the defendant's second prayer is, that if the jury should find the facts therein mentioned then the memorandum, which is described in that prayer as having been signed by White & Elder, and written by White and delivered to the plaintiffs, is not a sufficient note [**62]  or memorandum of the bargain to bind the firm of William Howell & Son, or the defendant. Without intending to decide whether there was or was not such proof as would have warranted the jury in finding the enumerated facts, we think there was evidence legally tending to prove them; and upon the supposition of their being found by the jury, the conclusion of the prayer was correct. If this memorandum was made and delivered under such circumstances as are set forth in the prayer, then it could not be regarded as a note or memorandum of the contract, which could bind the firm, of which the defendant is the surviving partner. The prayer, therefore, should not have been refused. The ruling on this prayer is, of course, confined exclusively to the memorandum therein described.
The third prayer was properly refused. Supposing there may be conflicting evidence as to whether White & Elder had authority to make an absolute sale of the coffee, not subject to the approval of the firm of William Howell & Son; still there is evidence tending to prove such absolute authority, and whether they had it or not was a question to be decided by the jury, upon the proof. If within the scope of such authority,  [**63]  White, as one of the firm of White & Elder, did make an absolute sale, not subject to the approval of William Howell & Son, it is not material whether White was influenced by the supposed approbation of Murgiondo, the clerk, or not, or whether the sale was afterwards objected to by William Howell & Son.

 [*257]  The position taken in the fourth prayer is, that the memorandum, mentioned in the defendant's second prayer, is not a sufficient note or memorandum of the alleged bargain, in case the jury should find, from the evidence, that the bargain was made on the terms, that the paper should be satisfactory to the seller. It will be seen that this memorandum does not mention whether the paper for the price of the coffee should be satisfactory to the seller or not. The grounds on which the prayer is based, are presented hypothetically to the consideration of the jury, and if found by them to be true, were, in our opinion, sufficient to justify the instruction asked. The facts set forth as the hypothesis of the second prayer of the defendant are first introduced; it is then made the duty of the jury to find, whether, a bargain was made at six months' credit, the paper therefor [**64]  to be satisfactory to the seller; whether, by the usage and custom of merchants, a sale of coffee on credit, without any stipulation as to the paper to be given therefor, means, that the paper of the purchaser is to be received for the price of the coffee, and that in such case the seller would not be entitled to demand paper of other persons, or to require any thing more than the mere paper of the purchasers; and, whether, by the usage and custom of merchants, a sale of coffee on credit, on the terms that the paper shall be made satisfactory to the seller, means, that the seller has an absolute and unqualified right to judge for himself, as to the satisfactoriness of the paper, and cannot be required to accept any paper, except such as the seller may actually agree to accept for the price.
The questions submitted to the jury, by the prayer, in regard to usage, are specifically and distinctly presented; the evidence in relation thereto is conflicting or inconsistent. In such a state of case a party has the right to ask the court to instruct the jury, what should be the legal effect of their finding that the facts which are made the groundwork of his prayer are true. When the evidence [**65]  relied on to sustain the facts, which are the basis of a prayer, is in conflict, or inconsistent with other evidence, offered by the opposite party, in the cause, in relation to the same facts, the prayer should not 

 [*258]  be refused, merely, because it does not mention or notice the opposing or conflicting evidence. Under the circumstances here presented, the defendant had the right "to segregate a portion of the testimony in the cause, and ask the opinion of the court upon it." And, we do not think, his prayer, in doing so, was calculated to mislead the jury. The defendant had given evidence in support of the usage, or facts, which were made the basis, or hypothesis, of his prayer, which evidence was contradicted by, and inconsistent with evidence offered by the plaintiffs, in relation to the same facts, or usage in reference to the same subjects. The prayer, therefore, is not liable to objection, as the appellees' counsel have supposed it to be, because it ignores, or omits to notice evidence going to show, that according to the usage of merchants in the city of Baltimore, in every sale of coffee on credit, the paper is to be satisfactory to the seller, in the absence of any [**66]  stipulation to the contrary. In our opinion the prayer ought to have been granted.
The defendant's fifth prayer was properly refused. The proof does not show that the coffee was to be delivered or paid for, either by satisfactory paper or by cash, on any particular day, or at any specified period of time. No part of the coffee was delivered, nor was there any offer to deliver it; on the contrary the plaintiffs received notice, from William Howell & Son, very promptly, after the latter were informed of the alleged bargain, that they did not intend to comply therewith. Under such circumstances, the plaintiffs were not bound to prove, at the trial, what this prayer assumes was necessary to entitle them to a verdict.
The doctrine set forth in the sixth prayer of the defendant is, that if the jury should find that William Howell & Son, on the 31st day of August 1853, expressly refused to ratify or comply with the alleged sale of coffee, and expressly refused to deliver the coffee, and the plaintiffs, on that day, had knowledge of such refusal, then the said refusal constituted a breach of the contract of sale, on the said 31st day of August; and if they should find that at the time of [**67]  such breach, the plaintiffs had not paid any part of the price of the 

 [*259]  coffee, and had not delivered, or tendered, notes satisfactory to William Howell & Son, for the price of the coffee, or any part thereof, then the measure of damages, in case the jury should find for the plaintiffs upon the issues joined in this case, is the difference, if any, between the price of a lot of coffee, of the same quantity and quality, at the time of such breach, and the price at which the same had been sold, and such interest thereon as the jury might think right; and if the jury should not find that the price had increased at the time of such breach, beyond the price at which the coffee is alleged to have been sold, then the jury, in case they should find for the plaintiffs, should find their verdict merely for nominal damages.
From a letter of the plaintiffs, dated the 1st of September 1853, it appears that on the preceding day, (the 31st of August,) they had knowledge of the peremptory refusal of the firm of William Howell & Son to comply with the alleged contract of sale.
In Mayne on Damages, 82, in the Law Library, when treating of "Actions for not delivering goods," after [**68]  commenting upon several cases, it is said: "In all these cases there was a stated time fixed for the completion of the contract. Where there is no time fixed, damages will be calculated from the period at which the defendant refuses to perform it. Such a refusal leaves no further locus penitentiae to himself, and of course the plaintiff cannot treat the agreement as any longer subsisting."
Believing this to be a correct statement of the law, in regard to damages in a case like the present, we deem it sufficient, without any thing further, to show that the theory of the defendant's last prayer is correct, and, therefore, the refusal of it was erroneous.
It is not considered necessary to express any opinion upon what have been called, "verbal instructions given by the judge to the jury," inasmuch as the record shows the court declared, "that all the instructions on the law, which it meant to give to the jury, were contained in the plaintiffs' prayers, as granted and modified.

 [*260]  Upon the first, second, third and fourth of the appellees' prayers, and upon the second, fourth and sixth of the appellant's prayers, the rulings of the court below are reversed. Upon the fifth [**69]  of the appellees, and upon the first, third and fifth of the appellant, the rulings are affirmed.
Judgment reversed and procedendo awarded. 

91 of 196 DOCUMENTS 

NATIONAL FIRE INSURANCE COMPANY OF BALTIMORE vs. WM. CRANE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 260; 1860 Md. LEXIS 66 

June 28, 1860, Decided 

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

The bill in this case was filed, on the 29th of June 1855, by the appellee, against the appellant and one Jas. L. Gray, surviving partner of the firm of "J. L. Gray & Brother," composed of the said Jas. L. Gray and George P. Gray, praying that the appellant may be compelled, by decree, to pay to the complainant the sum of $ 2000, with interest, the amount for which a policy of insurance, issued by the appellant, was renewed and continued, and that this policy, and the endorsement thereon, may be altered and reformed, if need be, so as to represent the true agreement between the parties, as set forth in the bill, and that the mistakes, alleged and charged in the bill, may be corrected, and for general relief.

The original policy, dated the 14th of January 1854, states, that the company "Have agreed to insure, and do hereby insure, J. L. Gray & Brother against loss or damage by fire, to the amount of $ 4000:--on brick steam mill situated in Carpenter's Alley, between Eutaw and Paca streets, $ 1000; on steam engine and whiting machinery, $ 1000;--on Sumac, ground and unground, in said mill, $ 2000. Loss, if any, payable to W.  [**2]  Crane & Co.--as per application." It was to continue for one year, and contains in its body, among others, this stipulation: "And provided also, that in case the assured shall have already any other insurance made on the hereby insured premises, he shall notify the same to this corporation before or at the time of executing this policy, and cause the same to be endorsed thereon; otherwise this insurance shall be void and of none effect." The fourth of the conditions accompanying the policy, and subject to which it was made, provides that: "The person for whose interest the insurance is made, must be declared and named therein; nor can any policy, or interest therein, be assigned but by the consent of the company, expressed by endorsement made thereon." It was endorsed thus: "National Fire Insurance Company, office No. 13 South street. Policy No. 859--To J. L. Gray & Brother. Dolls. 4000.--Premium $ 80.--Five per cent. discount as Fireman, $ 80.--Policy 1, $ 81. Date January 14th, 1854. For one year.--Terminates January 14th, 1855." On the 13th of January 1855, it was renewed by the following endorsement thereon: "Payment of the premium for continuing the insurance by this policy is [**3]  acknowledged to have been received as follows: Date of receipt, January 13th, 1855.--Premium received, $ 40.--Sum insured $ 2000; that is, $ 1000 on engine and machinery, $ 1000 on building, as described. Secretary's signature,--Jno. R. Magruder."

At the time this policy was issued, the Grays held the property, under a bond of conveyance from E. H. and F. Stabler, and the firm of Wm. Crane & Co., composed of the complainant, and James C. and Andrew F. Crane, had made large advances of money to the Grays, a large part of which was expended in building the factory, and supplying it with proper machinery, and this money was advanced in consideration that the Grays would assign to the Cranes, as security therefor, the property and premises which they held. On the 3rd of October 1854, the Grays executed to Wm. Crane & Co., a deed of assignment of all their interest in the property. On the 1st of January 1855, the partnership of Wm. Crane & Co. was dissolved, James C. Crane retiring from the firm, and assigning by deed all his interest in the partnership, and particularly in the property insured, to his two co-partners, who continued business under the firm of W. Crane & Son, as the [**4]  successors of Wm. Crane & Co. And on the 17th of February 1855, the Stablers executed a deed conveying to W. Crane & Son, the legal title to the property, the equitable title whereof had been previously assigned by the Grays to Wm. Crane & Co.

A fire occurred on the 23rd of March 1855, by which the factory, &c., was totally destroyed, and the loss incurred exceeded the amount of the insurance, and the company refused to pay this loss, upon the grounds:

1st. That J. L. Gray & Brother were the parties insured, and, before the fire occurred, they had parted with all interest in the property insured, and the policy was never assigned to W. Crane & Co., or Wm. Crane & Son, as required by the fourth condition thereof.

2nd. That at the time the policy was issued, there was a prior outstanding insurance in the Firemen's Insurance Company, which was not notified to the company, and endorsed on the policy, and therefore the policy never attached.

Andrew F. Crane, then, by an endorsement on the policy, under his hand and seal, dated the 30th of April 1855, "for value received," assigned all his "title and interest in this policy, and all advantages to be derived therefrom,  [**5]  " to William Crane, who, on the 29th of June following, filed the bill in this case.

The bill alleges and charges, among other things, that the defendant, the National Fire Insurance Company, was fully notified of the equitable and substantial interest of Wm. Crane & Co., in the property insured, at the time the policy was issued,--of its standing as security for money loaned by them to the Grays, and expended thereon,--and of their purpose to be secured therein by the insurance, and that the insurers meant to insure the interest of Wm. Crane & Co. in the property, and executed and delivered the policy for that object and with that view, and made the loss, if any, payable to Wm. Crane & Co., with full knowledge of their interest, and for the purpose of protecting them; that the defendant also knew of the outstanding insurance in the Firemen's Insurance Company, having been informed thereof both by A. F. Crane and J. L. Gray, and that the defendant's policy was issued with notice of that previous insurance, and its non-endorsement on the policy was the neglect and default of the defendant and its agents, and not of the complainant, or of Wm. Crane & Co.; that the policy was received,  [**6]  and the premium paid, in good faith, by A. F. Crane, without particular scrutiny, as it was believed to be what it should have been as to its contents and endorsements, Wm. Crane & Co., having relied upon the defendant and its officers to do the duties required of them by their regulations, as they had furnished them, in good faith, with all necessary information preliminary to the issuing of the policy; that if the policy was informal and incorrect, it was accepted through mistake, and in the belief that it was properly made out in all respects, so as to embody the wishes and objects, and to secure the interest, of Wm. Crane & Co., and if the policy was not properly made out, as well with reference to its contents as to the endorsement relative to the prior insurance in the Firemen's Company, Wm. Crane & Co. were deceived and misled, and mistaken in paying the premium therefor, and that it should be reformed and corrected, so as to embrace the provisions and endorsements sufficient to express the intentions, and secure the interests, which Wm. Crane & Co. designed should be expressed and secured thereby, and which the assured believed to have been duly done.

The bill also charges [**7]  that the policy was renewed and the reinsurance effected thereunder, as the original insurance was, with full knowledge on the part of the defendant, its agents and officers, of the interest of Wm. Crane & Son in the property insured, and also with full notice and knowledge of the outstanding insurance in the Firemen's Company; that it was the purpose of the renewal to secure Wm. Crane & Son in the premises, and to provide in due form for the previous insurance in the Firemen's Company; that Wm. Crane & Son entrusted the preparation of the endorsement of the previous insurance to the defendant, its officers and agents, they believing and confiding that the memorandum and policy would be prepared in like good faith, and they accepted the renewal as sufficient, in all points, to carry out their expressed wishes and to secure their known interests; that if the memorandum and policy are defective, and fail to carry out the wishes and intentions of the parties, they were accepted by mistake by Wm. Crane & Son, and should be so reformed as to comport with the intentions and agreement of the parties, and to prevent the fraud and detriment which would be wrought by such mistakes or negligence [**8]  on the part of the insurers to the insured, and that the mistakes and default, and omissions of the policy are or were the mistakes and omissions of the insurers, committed with full knowledge, either intentionally to defraud or by gross neglect, for which the insurers are responsible, after full notification in every particular.

The answer of the company denies all knowledge of the prior insurance in the Firemen's office, either at the time of the original insurance, or at the time of the renewal of the policy, and also denies any knowledge of the conveyance by the Stablers to Wm. Crane & Son, until after the fire. It insists upon the invalidity of the policy by reason of the want of notice of the prior insurance, and also insists upon the termination of the insurance by reason of the cesser of interest in the assured J. L. Gray & Brother, prior to the fire. All fraud and all neglect, wilful or inadvertent, on the part of the company and its officers, are denied; and the alleged mistakes or surprise in the issuing and renewal of the policy are denied, and the answer insists that the policy and renewal are precisely such as they were intended to be by the parties at the time.  [**9]  

Andrew F. Crane was examined as a witness for the complainant, and his testimony was excepted to, upon the ground that he was not a competent witness in this case. Upon the question of competency the witness says, on cross-examination, that the assignment of his interest therein, endorsed upon the policy, to his father, Wm. Crane, was made on the day of its date--the consideration for it was a subscription of $ 500 to the African Baptist Church, which witness made in the spring of 1854, and which his father paid. In reply to the question: "Was the object of said assignment, on your part, to enable you to become a witness and testify as such in this case? he says he "made a full and bona fide release of it, and his object was to give money for a benevolent purpose." The same question being repeated, and a direct answer requested, he says: "That if witness must answer the question directly, he was determined that the money should go to a benevolent purpose rather than that the National Fire Insurance Company should have it; it was not the amount of the money but the principle that he looked at." Being again asked: "Suppose the present suit should not be successfully prosecuted by [**10]  your father, do you intend that the said subscription shall be lost to the African Church, or do you intend, if paid by your father, that the loss shall be borne by him?" he replied: "That the subscription has been paid to the church; in the event inquired of, witness intends that the loss shall be borne by his father." Being re-examined in chief, he stated that the assignment of his claim, under the policy, was made in good faith, without secret understanding or reservation of any kind whatever, and that he can neither gain nor lose by the result of the present controversy.

James L. Gray, one of the defendants, was also examined as a witness for the complainant, under the usual leave of the court to that effect. After his examination had been concluded, Wm. Crane & Son executed a release to him and his trustee in insolvency, for any responsibility which either of them might be or remain under to Wm. Crane & Son, in the event of the inability of Wm. Crane to recover the amount claimed in this cause under this policy, which was accepted by the witness and his said trustee. The witness was then re-examined by being asked: "Have you since receiving said release re-examined your testimony [**11]  as given on your previous examination-in-chief? If yea, please state whether the same is or is not correct and true to the best of your knowledge, and whether you have any, and what correction to make in the same in any particular?" to which he replied: "That he has read his said testimony again carefully, and, to the best of his knowledge, it is true and correct, except in one particular," which he specifies and corrects. The defendant excepted to all his evidence upon the ground that he was not a competent witness in the cause, and also particularly to the evidence given upon his re-examination, because it was not taken in such manner as required by the rules and practice of the court.

John B. Seidenstricker, the president, and John R. Magruder, the secretary, of the National Fire Insurance Company, were examined as witnesses for the company, and the complainant excepted to their competency and to all their evidence, because they were the agents of the company in the transactions in controversy, and are interested to prevent the complainant's recovery, and their own liability over on account thereof to their principal, the company, for misconduct or negligence, and because they [**12]  are otherwise incompetent to testify for the company. The president stated, on cross-examination, that he was not a stockholder in the company at the time of his examination as a witness, that he ceased to be one some six or eight months before, that the company's charter and by-laws do not require the president to be a stockholder, that he ceased to be a stockholder for two reasons: first, because he wished to become a witness in this case; secondly, because he is only a stockholder when stock is offered for sale which he does not wish to be thrown into the market, and in that case he purchases it himself and afterwards disposes of it, that he transferred his last stock to his son, who paid him value for it, and he has no understanding with regard to a re-transfer, and that he has no interest whatever in the result of this suit. The secretary stated that he is not a stockholder in the company and never has been one.

The testimony of the above and other witnesses, as well as the documentary proof is very voluminous and need not be set out at length. It is sufficiently stated, for a clear understanding of the case, in the following opinion of the court below, (KREBS, J.,) delivered [**13]  upon passing the decree appealed from.

"The bill filed by the complainant seeks a decree against the National Fire Insurance Company to compel the payment to him of the sum of $ 2000 and interest, the reduced amount for which the insurance created by the original policy filed in this case, was continued for one year, as appears by the endorsement thereon, made by the company's secretary on the 13th of January 1855. The policy insured, "Jas. L. Gray & Brother," against damage by fire to the amount of $ 4000, on a brick steam mill, steam engine and whiting machinery and sumac, and made "the loss, if any, payable to Wm. Crane & Co." The interest that Wm. Crane & Co. had in this policy and in the property insured, has been transferred to the complainant. The property having been destroyed by fire, he claims the amount for which the insurance was continued. This claim is resisted upon the grounds:

"1st. That Jas. L. Gray & Brother had parted with all their interest in the said property before the fire occurred by which it was destroyed.

"2nd. That the parties insured had another insurance on the property at the time this policy was executed and continued, and that they did [**14]  not notify the same to the defendant, and have the same endorsed on the policy or otherwise acknowledged by it.

"The fact that J. L. Gray & Brother had assigned all their interest in the property insured, under the bond of conveyance from E. & F. Stabler to W. Crane & Co., and that they had obtained a conveyance of the same from the Stablers before the policy was continued, and before the fire occurred, is stated in the bill, but the complainant insists that this should furnish no objection to his claim for the amount insured, because Wm. Crane & Co. had an insurable interest in the property when the policy was executed, which they made known to the company, and for the insurance of which, the written application filed amongst the proceedings was intended, and that it was through the mistake and error of the company and its agents, that they and their said interest was not insured by the terms of the policy, as originally drawn, instead of the Grays and their interest, and that it was through the like error and mistake that their interest in the property acquired under the assignment to them from the Grays, executed before the policy was continued, and made known and exhibited [**15]  to the company, was not insured in express terms, at that time, and that if their interest had been insured, which would have been done had not the company committed the mistake imputed to it, the transfer of the property made by the Grays, would have furnished no pretext for resisting the claim. The bill, therefore, prays that by a decree of this court, these mistakes and errors may be corrected, and that the said policy and the endorsement thereon by which it was continued, may be altered and reformed so as to represent the true agreement and contract between the parties as set forth by the complainant.

"The answer of the company denies all the errors and mistakes in these transactions that are charged by the complainant, or that it had any notice that the firm of Wm. Crane & Co. had an equitable or substantial interest, or any interest, whatever, in the property at the time the policy was made, or that it was intimated, intended or supposed by any one that they were the parties to be insured, or that the application for the insurance was made for that purpose, or that they had notice of the assignment to Wm. Crane & Co., as alleged in the bill, at the time the policy was continued,  [**16]  and avers that the policy and the memorandum of renewal endorsed thereon, are in precise accordance, in every particular, with the actual and intended agreement of the parties, and that in no particular is there any thing to be changed, corrected, altered or reformed.

"The complainant insisting that there was mistake and error in this policy of insurance, as it was originally executed, and in the memorandum subsequently endorsed upon it, by which it was continued, he must furnish such evidence of error and mistake as is demanded by the rules adopted by courts of equity in inquiries of this character. These rules require a high degree of proof. It is not necessary, for the purpose of showing what they exact, to refer to any other authorities than those that are found in the reported decisions of our own courts. In Hall & Gill vs. Clagett, 2 Md. Ch. Dec., 153, the chancellor says, in reference to this rule of evidence: 'There seems to be but one sentiment among the judges upon this subject. The mistake must be made out in the most clear and unequivocal manner, and to the entire satisfaction of the court. There can be no question of the impropriety of interfering in such cases, unless [**17]  the mistake is made out by evidence clear of all reasonable doubt.' In Beard's exc'x vs. Hubble, 9 Gill, 431, the court says that by this rule, 'it has been required by the party seeking to be relieved, upon the ground of mistake, to produce, if not quite, almost, incontrovertible proof, or to use the language of a distinguished chancellor, 'proof clear and overwhelming.' So in Philpott vs. Elliott, 4 Md. Ch. Dec., 275, the chancellor says: 'This court has unquestionably the power to grant relief, provided a clear case of mistake be made out, but it is indispensably necessary that it be demonstrated in the clearest and most unequivocal manner, for if there be a reasonable doubt upon the subject, the court must withhold its aid. And it is not only necessary that strong evidence be produced, that the agreement signed by the parties does not conform to their intentions, but the correction proposed to be made must be established by equally conclusive proof. Before the agreement will be reformed and executed as reformed, the court must be perfectly satisfied what the real intention of the parties was.' In the case of Showman & wife vs. Miller, 6 Md. Rep., 485, the Chief Justice, in delivering [**18]  the opinion of the court, says: 'The aid of the court is invoked exclusively on the ground of mistake. In the case of mistake the Court of Appeals, in Watkins vs. Stockett, 6 Harr. & Johns., 445, adopting the decision of Ld. Thurlow, in 1 Brown's Ch. Rep., 92, observe, that the proof of a mistake should be established as much to the satisfaction of the court as if it were admitted, and that the difficulty of doing this is so great that there is no instance of its prevailing against a party insisting there is no mistake.' It is true that the chancellor, some years before, in the case above referred to, of Hall & Gill vs. Claggett, had expressed the opinion that this language of Lord Thurlow had been qualified by succeeding chancellors, but, nevertheless, the Court of Appeals, in this late case of Showman & wife vs. Miller, repeats it with unqualified approbation as having been previously adopted by that court.

"Applying the tests, furnished by these decisions, to the testimony produced in this case, is the mistake here charged demonstrated in the clearest and most unequivocal manner, clear of all reasonable doubt, and to the entire satisfaction of the court? Is the proof almost [**19]  incontrovertible? Is it clear and overwhelming? Is not only the agreement, set out in the instrument, proved by such testimony not to conform to the intention of the parties, but is the agreement, according to which it is to be reformed, proved by evidence equally strong? The mistake made at the time the policy was prepared and executed, is alleged to be this: that the company was applied to and directed to insure the interest of the Cranes in this factory building and property, and so understood the application, and so meant to insure it, but, by mistake, made out and executed the policy as an insurance of the interest of the Grays, 'loss, if any, payable to W. Crane & Co.' It is to be observed that, at this time, the Grays had an unquestioned interest in the property--which was their equitable title under the bond of conveyance from the Stablers,--and was a proper subject for insurance. W. Crane & Co. wished to be secured, for their advances to the Grays, by an insurance to the amount of $ 4000. This could have been as effectually accomplished, at that time, by an insurance in the mode in which it was actually made as it would have been by an insurance of the interest which they [**20]  allege they themselves then had in the property. Both they and the Grays then having an interest in the property, there is nothing in the condition of the property, in regard to ownership, or in the object to be accomplished, which would raise the presumption that it must have been the intention of the parties to insure some interest that W. Crane & Co. had in the property, and not that of the Grays. And further, the mode adopted to secure these parties, seems to be that which they had in view when they agreed to aid the Grays. J. L. Gray, one of the witnesses for the complainant, says: 'W. Crane & Co. agreed to loan to Gray & Bro. money, for which they were to assign the factory to them as security; there was no agreement between them with regard to insurance; all the insurances of J. L. Gray & Brother were to be made payable to W. Crane & Co.; it was so understood between them; witness told them that Gray & Bro. would see that the insurances were made payable to them, (W. Crane & Co.)' And Andrew Fuller Crane, examined as a witness, also, for the complainant, says, that on the promise of the Grays to assign to the firm of W. Crane & Co., the factory, &c., they consented to aid them,  [**21]  and that 'Jas. L. Gray & Bro. also agreed to assign to the firm of witness all right and title to all benefits from the policies on the property then outstanding, and that the subsequent ones should be made payable to the firm of witness.' I am of opinion, then, that the complainant cannot insist, with any show of reason, that W. Crane & Co., and Jas. L. Gray & Bro., contemplated, prior to the order for the insurance, any other than the very mode which was adopted, by insuring the interest of Jas. L. Gray & Bro., and making 'the loss payable to W. Crane & Co.' The written application for the insurance, in the handwriting of A. Fuller Crane, is in the name of Jas. L. Gray & Bro., for insurance for them, 'for the benefit of W. Crane & Co.' The policy as executed, insuring them or their interest, 'loss, if any, payable to W. Crane & Co.' substantially pursues the order. The purpose of the complainant is to show, by parol evidence, that the contract or agreement, as expressed in this order and policy, was not the true agreement that the parties intended to make. Prima facie it was. The burden of proof, then, is on him to show, by evidence of the high order required by the decisions before [**22]  cited, that there is a mistake in the order and policy.

"The application of Wm. Crane & Co., to this insurance company, for the insurance which was effected, was made by A. Fuller Crane, in consequence of the company's refusal to make an insurance on this property upon the application of Jas. L. Gray, made in the name of Jas. L. Gray & Bro. Mr. Crane knew that it was made in this form. In his testimony he says: 'Deeming the insurance then existing on the property, too small, witness suggested to Jas. L. Gray to apply to the National Fire Insurance Company to take a risk on said property, which said Gray afterwards did, in the name of Jas. L. Gray & Brother.' This application was refused, but there is nothing in the evidence to show that there was any objection to the application because it was made in their name, either on the part of the company, or of W. Crane & Co. Having first been made by Jas. L. Gray in the name of Jas. L. Gray & Bro., why should, or might, it not have been renewed by A. Fuller Crane, in the name of the same parties?

"The agreement for, and settlement of, the terms of this insurance, was made at the counting room of W. Crane & Co. Mr. Seidenstricker,  [**23]  the president of the company, Jas. L. Gray, one of the complainant's witnesses, and A. Fuller Crane, also examined on his behalf, were present, and the statement of what occurred at that interview, and the statement of the latter of what occurred in an interview with the president, in the street, a day or two before, in reference to an insurance on this property, furnishes the whole evidence relied upon by the complainant to show that this policy does not set forth the true agreement and understanding between these parties in regard to this insurance.

"Mr. Crane says, upon that occasion, 'he urged Mr. Seidenstricker, to take a risk on the property. Upon this Mr. Seidenstricker said, Mr. Gray how much does the Firemen's charge you? After some hesitation on the part of Mr. Gray,' Mr. Crane says, Mr. Gray answered, 'two per. cent,' and the witness, 'at Mr. Seidenstricker's request, commenced to write as Mr. Seidenstricker dictated the paper,' which was the application on which the policy was issued; 'witness wrote on said paper, for the benefit of W. Crane & Co.; after witness had repeatedly stated to Mr. Seidenstricker all pertaining to the previous insurance in the Firemen's Insurance [**24]  Company, Mr. Seidenstricker took the paper and left the counting room.' In consequence of what passed at this interview, the policy of insurance was prepared, executed and presented to witness to witness, a day or two after, when he (A. Fuller Crane,) as he stated, 'took it up, read the outside of it, the amount of insurance,' and after the reply of the person who brought it, 'that it was all right,' to a question from him, (Crane,) he paid the premium. Upon the outside of it are the words: 'Policy No. 859. To Jas. L. Gray & Brother. Dolls. 4000. Premium $ 80.'

"Mr. Gray states, in reference to this interview: 'Messrs. Crane and Seidenstricker commenced talking about the insurance of the factory; Mr. Seidenstricker asked Mr. Crane to make a memorandum, which Mr. Crane did, Mr. Seidenstricker stating the manner in which it should be done; viz: so much on machinery, building, stock. After that memorandum was finished, witness told Mr. Seidenstricker that Jas. L. Gray & Brother had an insurance in the Firemen's Insurance Company, which the witness afterwards informed Mr. Seidenstricker,' as Mr. Gray states, 'was two per. cent.'

These statements certainly do not furnish the conclusive [**25]  proof required by the rule of evidence, that the true agreement between these parties, and understanding for insurance was not the contract embodied in this policy, or that Mr. Crane intended, and Mr. Seidenstricker understood, that it was the property or interest of W. Crane & Co. that he was asked to insure.

"But giving to the complainant the benefit of the testimony of Mr. Crane in regard to what passed between him and Mr. Seidenstricker at the interview in the street, the evidence is, in my opinion, still greatly deficient in the requisites of clear, conclusive, most unequivocal, and almost overwhelming proof of mistake. The witness gives the words used by them as nearly as he can recollect them: 'Mr. Seidenstricker, why would you not take a risk for us on that factory concern of ours in Carpenter's alley?' Mr. Seidenstricker instantly said: 'That factory of Grays? I did not know you had any thing to do with it.' Witness answered: 'Yes sir,--we have a very big interest in it--we have advanced largely on the property and stock, and we want to feel insured; the Firemen's Insurance Company have insured on it for us.' Mr. Seidenstricker's reply was that the subject had been before [**26]  their directors, but they had declined on account of the property being worked by steam, and fearing some trouble with the neighbors, &c., however, he said, 'I will go and look at the property again, and when our board fully understands it, I will call and see you.'

"All that was mutually stated by these parties in reference to this insurance is comprised in the above extracts from the testimony, and it is from them that the question of mistake is to be decided. It is to be observed that the mistake alleged in the original insurance, refers only to the subject of the insurance which the complainant alleges should have been the interest of W. Crane & Co., and not that of the Grays. At the counting-room not a word was said about the interest to be insured as differing from that for which the application had been previously made, which, as Mr. Crane says, was made 'in the name of J. L. Gray & Bro.' The application, as written by Mr. Crane, was for insurance for these parties. The memorandum was made according to the direction of Mr. Seidenstricker, as Mr. Crane says, but Mr. Gray describes this dictation as a simple statement by Mr. Seidenstricker, as 'so much on machinery, building,  [**27]  stock.' Before, however, it can be made to appear that his dictation was erroneous, conceding that he had directed Mr. Crane to state the application in the name of J. L. Gray & Bro., it must be shown clearly and conclusively that Mr. Seidenstricker had been distinctly informed that the interest which the parties wished to have insured was that of W. Crane & Co. There must be no reasonable doubt on the mind of the court that this was intended. When the policy was executed and delivered to Mr. Crane, the part which he admits was read by him showed that the interest insured was that of J. L. Gray & Bro., and yet he retained it without objection. Mr. Crane at no time, in his conversation with Mr. Seidenstricker, referred to the interest of W. Crane & Co., in connection with this property, except at the meeting between them in the street, when he asked Mr. Seidenstricker, 'to take a risk for us on that factory concern of ours, in Carpenter's alley.' The application having been previously made to insure it as the property of the Grays. Mr. Seidenstricker instantly said: 'That property of Grays? I did not know that you had any thing to do with it.' Mr. Crane replied: 'Yes sir,--we have a [**28]  big interest in it.' In what? Mr. Seidenstricker must have understood him to mean in that 'property of Grays.' And Mr. Crane goes on to explain how that interest had been created--'we have advanced largely on the property and stock, and we want to feel insured.' He did not tell Mr. Seidenstricker that he wanted the property and stock insured, but that they wanted to feel insured, which would have been done as well by insuring the property as belonging to the Grays, 'loss payable to W. Crane & Co.,' as in any other mode. In this same conversation he says to Mr. Seidenstricker: 'The Firemen's Insurance Company have insured on it for us.' Now this insurance, it is admitted, was in the name of J. L. Gray & Bro., which shows that Mr. Crane regarded an insurance in that form, in that company, as an insurance for them. Why then would not an insurance, in that form, in the National Insurance Company be of equal avail for them? Their witness, Jas. L. Gray, was very emphatic in stating to Mr. Seidenstricker, 'that Jas. L. Gray & Bro. had an insurance in the Firemen's Insurance Company.' This was stated at the time Mr. Seidenstricker took the memorandum of insurance from Mr. Crane, and Mr. Crane,  [**29]  himself, says that at that time, 'he repeatedly stated to Mr. Seidenstricker all pertaining to previous insurance in the Firemen's Insurance Company.' Why should this have been stated at all if it had been designed and understood that this was to be a different interest and in a different name from that in this other company? This being my view of this testimony of the complainant on this point, assuming that there is no objection to the competency of Mr. Crane, as a witness for him, I am forced to the conviction that the evidence offered by him to prove mistake and error in this policy is insufficient for that purpose. The words, 'for the benefit of W. Crane & Co.,' subjoined by Mr. Crane to the application for insurance, in my opinion, furnish no proof that it was asked upon his supposed insurable interest in the premises. On the contrary, taken in connection with all the other circumstances of the case, and statements of the parties, it would tend to show that it was intended to be such an insurance as had been effected in the Firemen's Insurance Company, and that the alteration, by Mr. Seidenstricker, of these terms did not in any degree impair the insurance, as one for the benefit [**30]  of W. Crane & Co., but secured the certain payment of the loss, if any, to them.

"Was there then at the time of the renewal of this policy any mistake made in the manner in which it was done, that has been sufficiently proved to enable this court to correct it, and reform the contract?

"The only evidence in the record, offered by the complainant in regard to the renewal, is the testimony of Mr. Crane, and his entire statement is comprised in this extract: 'Witness went to the National Fire Insurance Company and asked Mr. Seidenstricker, whether they would renew the policy for six months, &c. Witness then proceeded to state to Mr. Seidenstricker and two of the directors, that W. Crane & Son had the assignment from Jas. L. Gray & Brother, and that next month said Crane & Son were to make the last payment of the purchase money, and would then have a deed of the property.' The question was then started by Mr. Bartlett, whether Crane & Son were insured or not? whether there was any insurance at all? Mr. Bartlett took the assignment and said: "Oh, this is not a deed--it is only an assignment --it will be necessary for you to have the policy transferred when you make the last payment,  [**31]  and get the deed,' and Mr. Fenby then took the policy and showed witness how the transfer was to be made. Witness then left the office, but soon returned and said: 'Mr. Seidenstricker, we have concluded to insure not over $ 2000, as all the sumac is sold, and that is all we feel like we could honestly claim from the company.' Mr. Seidenstricker's reply was, 'I am glad of it,' and witness then paid Mr. Seidenstricker the money--$ 40--and the endorsement for twelve months was made on the policy, which witness took away with him.' This witness stated further, 'that the company was informed of all the titles which the firm of witness had to the property at the time of the renewal of the policy.'

"According to this statement of Mr. Crane, the application at that time made by him was for a renewal of the original policy, and by the endorsement then made upon it, it was doubtless intended and understood that the insurance effected by the policy, reduced to the amount of $ 2000, was continued for one year. And assuming, as Mr. Crane states, that the assignment by the Grays of their interest in the premises to W. Crane & Co. was exhibited to, and examined by, the president of the company,  [**32]  and the two directors who were present, they did not regard this circumstance as requiring any more to be done at that time, to give to W. Crane & Co. the security from the insurance that they desired, but to endorse upon the policy the renewal of the insurance in the manner in which it was done. But it is manifest, and the statement of Mr. Crane proves, that the officers of the company, were of opinion and so stated to him distinctly, that it would be indispensable for the security of of W. Crane & Co., and to give them the benefit of the insurance, that they should have the policy assigned to them when they made the last payment and got the deed. So that this memorandum of renewal was intended and understood, at the time, to have the effect of securing and protecting the interest of W. Crane & Co., and continuing the insurance only until they made this payment and took the deed. They were fully apprized that so soon as this should be done, it would be necessary to have the policy transferred to them, and they perfectly understood that this would be required of them. It was not intended then that the renewal of the policy in this mode, should give W. Crane & Co. any claim against [**33]  the company after they obtained the deed for the property, unless they should have the policy transferred to them; and if this court should give it any force and effect beyond their intent, by reforming or changing it, it would, by doing so, make a contract for the parties different from that which they themselves intended.

"In the view at the time taken by the company of the title and interest of W. Crane & Co. in the property, it did not deem it necessary for them to have the policy transferred to them, then, or for them to take out a new policy in their name. If they were in error in this opinion, they committed a mistake of law, which perhaps they would not have been allowed to plead against their liability to W. Crane & Co., in case a loss had occurred before the time when they were to make the last payment and take a deed, and procure a transfer of the policy. But, in my opinion, this court can now do nothing in the way of correcting any supposed mistake made by the parties in the contract then intended to be made, or of reforming the agreement then entered into, if for no other reason, because the state and condition of things in reference to which the transaction took [**34]  place no longer exists, the parties having since made this payment and taken a deed of the property. In fact the difficulty with which the complainant has to contend, is not that a mistake was made at the time the policy was renewed, but that when the state of things occurred which rendered it necessary for him to get a transfer of the policy, he failed to do so, and so failing also neglected to take out a policy in the name of W. Crane & Co. There is a remark of Mr. Seidenstricker's, introduced by Mr. Crane, the witness, made at the time he called upon Mr. Seidenstricker to inquire as to the effect Mr. Thompson's insurance in the Etna might have upon this policy, which remark, Mr. Crane said, quieted his apprehensions. The witness states the conversation that took place at that time, in connection with this remark of Mr. Seidenstricker in such a manner as to create the impression that Mr. Seidenstricker quieted his apprehensions in regard to the necessity of procuring a transfer of the policy, but it is difficult to bring the mind to believe that this was either what Mr. Seidenstricker intended by the remark, or what Mr. Crane understood it to mean, because it was stated to him so [**35]  distinctly at the interview between Mr. Seidenstricker and the two directors who were present when he applied for the renewal of the policy, that the transfer would be necessary, and, because, after this remark and when he was about taking the deed, he manifested so much solicitude in regard to the transfer of the policy by Gray, making application to him for that purpose through his counsel, and also through Mr. Stabler.

"I am of opinion, then, that this court cannot afford relief to the complainant upon the ground that there was mistake in the original policy, or in the renewal of it, and I am also of opinion that there is no sufficient evidence in the record of any acts or conduct of this company, or of its agents, that relieved W. Crane & Co. from the necessity of procuring a transfer of this policy of insurance to them, if such transfer was necessary to give them the benefit of the insurance, in consequence of the assignment of Jas. L. Gray & Bro., of all their interest in the property to the said W. Crane & Co.

"But the complainant insists, that though W. Crane & Co. failed to procure a transfer of the policy, they might have obtained the security they desired by an [**36]  insurance, by taking out a policy in their own name, after the property was conveyed to them by the Stablers, which they were ready and willing to do, and would have done, had not the secretary of the company instructed and advised them that, under the circumstances, it was unnecessary, and that, if a loss occurred, they would be entitled to the amount insured upon this policy. There is, therefore, still left for consideration the following questions:

"1st. Was the other insurance, which the Grays had on these premises, notified to the company before or at the time of executing this policy?

"2nd. Will the fact that the prior insurance made on this property in the Firemen's Insurance Company, though notified to the defendant, was not caused to be endorsed on this policy, enable the defendant to protect itself from liability thereon?

"3rd. Was it necessary for W. Crane & Co. to procure from Jas. L. Gray & Bro., when they assigned their interest in the property to W. Crane & Co., a transfer of the policy assented to by the company, the loss insured against by the same being made payable to them?

"4th. Did W. Crane & Co. make an offer, at any time, to take an insurance [**37]  on the property in their own name, and were the acts, conduct and statements of the agent of the company, at the time when such offer was made, of such a character as to render the company liable to W. Crane & Co. for the amount insured, in the same manner as if the insurance had been taken in their name?

"To dispose, in the first place, of the fourth question:-- Assuming that Crane & Co. did offer to the insurance company to take a policy in their own name:--They insist, that having made such offer, and having been informed, as they allege, by the secretary of the company that it was not necessary to take out a policy in their name, because the policy, which had been issued to the Grays, contained the words, 'loss, if any, payable to W. Crane & Co.,' and having, in consequence of that information, omitted to take the policy in their name, the company is responsible to them, in the same manner as if they had so taken out a policy. Now, the evidence in regard to what the secretary stated upon this subject, is very contradictory, and, if I deemed it necessary to determine what he did state, I should find it exceedingly difficult to do so, in the conflict of testimony on the point.  [**38]  But I am relieved from this perplexing task, because I have become convinced that the secretary had no power to bind the company, by expressing the opinion which, it is alleged, he did in regard to the force and effect of the phrase above quoted. It was a legal opinion, and there is nothing in the record to show that he was the agent of the company to create obligations for it by declaring the meaning and import of the terms used in its policies. The company, acting through its directors, might have bound itself by its acknowledged interpretation of such terms, but it would require clear proof of special authority, for that purpose, conferred upon an agent, to satisfy a court that it should give effect to his opinions and judgments, and there is no proof that this secretary had any such authority given to him, or that his agency for the company was of such a character that this power might reasonably be regarded as incident to it.

"In regard to the question, whether the other insurance that the Grays had on this property, was notified to the company before or at the time of executing this policy:--From a careful examination of the testimony, I am of opinion that the weight of [**39]  the evidence is decidedly in favor of the position that the insurance in the office of the Firemen's Insurance Company was notified to the National Fire Insurance Company before it executed the policy upon which this claim is made. Mr. Seidenstricker, upon his cross-examination, says, that 'a little previous to the insurance, he went to the mill, to examine it before insurance; he has a floating idea of some conversation there of an existing insurance.' Mr. Gray and Mr. A. Fuller Crane, both, swear, positively and distinctly, that this previous insurance was expressly notified to the company. I regard them both as competent witnesses, whatever interest either may have had in this controversy having been extinguished by releases. It is true, the testimony of Gray is specially excepted to, because the release given to him was not executed and delivered until after his examination had been taken. But I find it clearly settled that a witness, interested at the time of his examination, may be released and re-examined. 3 Phillips' Ev., (Cowen & Hill's Notes,) 161. 2 Vern., 472, Callow vs. Mince. 7 Wend., 180, Tallman vs. Dutcher. 5 Littell, 203, Haddix vs. Haddix. 5 Wend., 58, Ten Eyck vs.  [**40]  Bill. The re-examination of a witness under a commission from chancery, in this State, does not require any order of court. Alex. Ch. Prac., 72. And though this witness was not formally re-examined by repeating to him all the interrogatories and cross-interrogatories, that he had answered before the release was made to him, yet the mode in which he was reexamined may be deemed equivalent thereto.

"But if the fact be that the notice of the other insurance was given by the assured, to the company, before this policy was executed, still it is objected that he did not cause the same to be endorsed thereon. The endorsement of the notice was to be the act of the insurance company, and is designed for its especial benefit. The reasons assigned for requiring notices of this description are, that the insurers may know the amount of the applicant's interest in the property to be insured, uncovered by insurance, and thus have the means of judging whether the amount uncovered will be sufficient to make it the interest of the insured to employ vigilance, care and strenuous exertions to preserve it. If the party called upon to make the insurance is of opinion that too much of the value of the [**41]  property is covered, he declines taking the risk, or continuing it, if it has already been insured. The contract of insurance being a mere contract of indemnity against actual damage, and the different insurers of the same property being entitled to compel contribution from each other in the event of a loss, another reason for the notice is, that it informs the insurer in regard to the parties to whom he may resort for contribution, if the circumstances of the case should require it. The purpose of the endorsement of the notice is to preserve distinct and accurate evidence as to the parties who may be called upon to contribute, and perhaps in the case of a second insurance, to signify the former insurer's consent to continue the risk. Where the notice is given to a party, who has not already taken a risk, the necessity for the endorsement on the policy to signify his consent to accept the risk, cannot be reasonably urged, inasmuch as this is proved by his executing and delivering the policy, if he should do so after the notice of other insurance. Now all these reasons look to the benefit and advantage of the insurer. It is his interest to make the endorsement on the policy after he [**42]  is informed of the former insurance. And, in my opinion, it is not only his interest, but it is his duty to do so. The insured can do no more than give the notice. Is it equitable then, that a party who through inadvertence, or other cause has omitted to do any act which would show that another had complied with a condition, should take advantage of his omission, and thus discharge himself from all liability under his contract? There can be no doubt that it has repeatedly been decided, that at law, a plaintiff cannot recover upon a policy of insurance with this clause, unless he produce the policy with the notice endorsed upon it. But whilst this has been decided in cases in which the assured has made his claim in a court of law, the courts in their opinions in these cases have gone no further than to say that, at law, the plaintiff cannot recover without proof of the notice and the endorsement, and have actually suggested the question whether his claim might not be enforced in a court of equity upon proof of notice only. 7 Cush., 179, 181, Barrett, et al., vs. Union Mutual Ins. Co. From the report of the case of Carpenter vs. The Providence & Washington Ins. Co., 16 Pet., 512, it [**43]  appears that the court below had been asked to instruct the jury, "that if the insurance company had notice in fact of the existence of the other policy, that was in law a compliance with the terms of the policy.' The court refused to give the instruction as prayed, but instructed the jury that at law, whatever might be the case in equity, mere parol notice of such insurance was not of itself sufficient to comply with the requirements of the policy declared on. The Supreme Court says: 'We think this instruction was perfectly correct.' The plaintiff, in the above case, having failed at law, filed his bill on the equity side of the Circuit court of the United States, for the district of Rhode Island, to compel the insurance company to endorse the notice on the policy and to pay the amount insured. At the hearing of the case his bill was dismissed, the decision of the court turning upon the sufficiency of the proof of the fact that notice was given to the company. The case, upon an appeal taken from this decision, is reported in 4 Howard, 185. The Supreme Court of the United States concurring in the opinion expressed by the Circuit court, that the proof of notice was insufficient, dismissed [**44]  the case upon that ground alone, without, however, in the slightest degree, casting the weight of its authority against the position of law assumed by the complainant, that equity would afford relief upon sufficient proof of the fact of notice.

"But assuming that the endorsement of this notice upon the policy was a condition precedent to the complainant's right of action upon it, I am of opinion that upon the principles that regulate courts of equity in granting relief to parties failing to comply with such conditions, the plaintiff is entitled to relief. The Court of Appeals, in the case of the City Bank vs. Smith, 3 G. & J., 281, says: 'It has been urged that this being the case of a condition, equity will relieve against the effects of the non-performance of it, &c. Equity will relieve against penalties and forfeitures, and where the matter lies in compensation, whether the condition be subsequent or precedent.' In Chipman vs. Thompson, Walk. Ch. Rep., 411, the court, quoting from 2 Cruise Dig., 40, says: 'The substantial difference which governs courts of equity, in cases of conditions, is not whether the condition be precedent or subsequent, but whether a compensation can [**45]  or cannot be made.' The court adds: 'The party asking relief may have so conducted himself as to have lost all claim to the interposition of the court. He may have absolutely refused to perform the contract, or he may have renounced all rights under it. But when this is not the case, and it is equitable under the circumstances that relief should be given, it is competent for the court to give it.' The case under consideration is a strong one for relief under this rule, because no damage has accrued to the defendant in consequence of the absence of the endorsement of notice on the policy, but it is, in fact, so far as the purposes designed by the notice and endorsement are concerned, precisely in the condition in which it would have been if it had been actually made. But, being of opinion that it was the duty of the company, after it received notice of this prior insurance, to endorse it on the policy before delivering it to the insured, (12 Eng. Law & Eq. Rep., 180,) the complainant is entitled to relief under another well settled rule, that equity will relieve where the performance of the condition has been prevented by the fraud or default of the adverse party. 3 Gill, 269, Cross [**46]  vs. Cohen.

"In regard to the points involved in the third of the above questions, viz: that the plaintiff is not entitled to relief, because the policy was not assigned to him with the consent of the company:--It is to be observed that, by this policy, the loss, if any, was made payable to W. Crane & Co. They being the parties actually named in the policy, to whom the loss was to be paid, there was no necessity for an assignment to them, to entitle them to recover upon it, unless the circumstance that the Grays had assigned their interest in the property insured to W. Crane & Co., rendered it necessary. An assignment of the policy is, of course, indispensable in the case where a party has insured property and, subsequently, transfers all his interest in it to another, having no previous connection with the transaction. The party insured can not recover on the policy, for the reason that he has parted with all his interest in the property; nor can the party to whom the transfer has been made, because he does not hold the policy duly assigned to him. He can claim no rights under it, except by virtue of an assignment to him, to which the insurer has given his assent. This assent [**47]  is deemed necessary, because the contract for insurance against fire is founded very much on personal confidence. The insurer knowing the party for whom he made the insurance, and having confidence in him as a man of integrity, was willing to contract with him, but may be altogether unwilling to continue the risk in favor of the party to whom the policy may be assigned, and, therefore, it is usual for the insurer to reserve, in the terms of insurance, the privilege of objecting to the assignment of the contract. The cases to which the objection applies--that the assignee of the property insured has failed to obtain an assignment of the policy assented to by the insurer--are those in which the property insured has been transferred to some other than the party named in the policy, as the one for whose benefit the insurance was made, or the one to whom the loss, if any, is to be paid. But in this case, the interest in the property insured has been transferred to the very persons to whom the loss, if any, is to be paid. They required no assignment of the property to enable them to bring suit upon it, because they are the parties to whom the insurer has agreed to pay the loss, and who are [**48]  entitled to demand it at law, if payment be refused. Nor did they require it for the purpose of presenting it to the insurer, so as to obtain his assent to the continuing of the risk in their behalf, because the property had been originally insured for their benefit, by naming them in the policy as the parties entitled to the loss. This case is peculiar in its circumstances. The loss, if any, having been made payable, by the terms of the policy, 'to W. Crane & Co.,' it may be regarded as having been, at its inception, assigned to them with the assent of the company, and the circumstance that the property insured has been subsequently transferred to them, cannot, as it appears to me, enable the company successfully to resist their claim to the loss. None of the reasons upon which the rule requiring an assignment of the policy, and the assent of the insurer thereto, apply to this case.

"The decisions referred to, and those to be found in the books, in regard to the kind of assignment of the interest insured that vacates a policy, unless it is notified to the insurer and assented to by him, do not properly apply to this case, because the policy does not contain any clause declaring [**49]  it void in case of an assignment of the property insured, without notice to the company and its assent thereto. It only provides as follows: 'Nor can any policy, or interest therein, be assigned, but by consent of the company, expressed by endorsement made thereon.' This policy was not assigned to W. Crane & Co. They did not require any assignment of it to them to entitle them to demand the amount insured. By the terms of the policy it was made payable to them by name, and no good reason, in my opinion, can be urged to show that the assignment of the interest insured to the parties named in the policy, for whose benefit the insurance was made, and to whom the loss, in case it was destroyed by fire, was to be paid, should impair their right to recover the insurance. Entertaining these views, I am of opinion that the complainant is entitled to the relief that he asks in his bill, and must decree accordingly."

A decree was then passed, directing the defendant, the insurance company, to pay the complainant the sum of $ 2350, being the amount of the policy, with interest from the filing of the bill, and dismissing the bill as to Gray, the other defendant. From this decree the insurance [**50]  company appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Where a court of equity is asked to reform a written contract, on the ground of mistake, the mistake charged must be proved in the most clear and unequivocal manner; the proof must be free of all reasonable doubt, almost, if not quite, incontrovertible, and clear and overwhelming.

An insurance policy, insuring A and making "the loss, if any, payable to" B, is to be regarded as having been, at its inception, assigned to B with the assent of the company, and he is entitled to its benefit without procuring a transfer of the policy from A assented to by the company, as in ordinary cases.

Courts of justice must regard all the parts of a transaction, and impute to the parties a motive for doing or saying what the case discloses; every fact and declaration must be considered as the result of design or agreement, and the intent of the parties should have effect, if it can be done consistently with established rules.

A release to qualify a witness, must be given before the testimony is closed, or it comes too late; if the trial is not over, the court will permit the witness to be re-examined after he is released, and it will generally be sufficient to ask him if his testimony, already given, is true, the circumstances under which it was given going only to his credibility.

The fact that a party transferred his interest for the purpose of becoming a witness, does not disqualify him, however it may affect his credibility.

The president and secretary of an insurance company, not being stockholders therein, are competent witnesses for the company in an action upon a policy executed by the company.

Where the fact of a prior insurance was notified to the company at the time the policy was issued, the want of the endorsement of such prior insurance on the policy, cannot be urged in a court of equity, in a cause otherwise free from objection, whatever effect it may have at law.

The endorsement of a prior insurance on the policy could only have been made by the company, and if omitted, the assured is not at fault, if he has notified the company of the existence of such prior insurance.

There is a distinction in cases where the preparation of an instrument belongs to the party to become liable under it; he ought to be dealt with more strictly, and insurance contracts are within this principle.

Equity will interpose not only in cases of fraud but also of mistake, where a policy is drawn up in a form different from the application, or any thing is omitted which it was the duty of the company to insert or endorse on the instrument.  

COUNSEL:
Wm. Schley, for the appellant:

1st. James L. Gray, at the time he was examined, was clearly not a competent witness for the appellee. If the release to him restored his competency, he should have been examined again, and not simply asked to read over what he had previously testified to, and say whether he adopts it or not.

2nd. Andrew F. Crane was not a competent witness for the appellee. His assignment of his interest in the policy was not made bona fide, but in hatred and in spite, and with a bad intent, and the avowed purpose of enabling him to become a witness. 4 Gill, 213, Crawford vs. Brooke.

3rd. Seidenstricker and Magruder were competent witnesses for the appellant. Neither of them was a stockholder in the company, and the company cannot by possibility have a suit, or recovery, over against either of them on account of losing this case, because the claim here is not founded on neglect, but on contract, and the action is not in tort but ex contractu.

4th. The policy never attached because of the prior subsisting insurance in the Firemen's office. 5 Md. Rep., 165, Associated Firemen's Ins. Co. vs. Assum. The assured [**51]  were bound to see that the endorsement was duly made, of this prior insurance. Gray and Crane both knew the fact. Seidenstricker and Magruder say they did not know of the prior insurance. 16 Pet., 495, 511, Carpenter vs. Prov. & Wash. Ins. Co.

5th. If the policy ever attached the cesser of the interest of the assured, J. L. Gray & Brother, before the occurrence of the fire, debars any claim. It was a contract of indemnity and the assured sustained no loss if there was no continuing interest. The deed of the 3rd of October 1854, made by the Grays to Wm. Crane & Co., is clear and unambiguous and cannot be contradicted by any of the parties thereto. 6 Md. Rep., 52, Alderson vs. Day.

6th. The policy was clearly not assignable without the consent of the company. If Wm. Crane & Co., or Wm. Crane & Son, were the assured, in fact, and the policy was reformed, the right would be not in the appellee alone, but in the appellee and Andrew F. Crane.

7th. As it is clear, then, that the appellee could not recover at law, the question arises whether this bill can be sustained? and it is equally clear that equity has no jurisdiction unless on the ground of mistake, surprise, or fraud.  [**52]  There is no evidence of mistake--none of surprise--none of fraud. The utmost that can be said is, that the parties had an object in view which the instrument failed to accomplish. But there is no proof that the instrument was intended to be other than, or different from, what it actually is. 1 Pet., 1, Hunt vs. Rousmaniere. 2 Md. Rep., 25, McElderry vs. Shipley. 6 Md. Rep., 479, Showman vs. Miller. 4 Md. Ch. Dec., 335, Wood vs. Patterson. 9 Md. Rep., 356, Wilson vs. Watts.

8th. But the proof of the alleged mistake in the policy is by no means sufficient. The rule is well established that the proof must be conclusive of the identical agreement alleged, and the agreement must be alleged with certainty. 1 Md. Ch. Dec., 239, Goldsborough vs. Ringgold. 2 Md. Ch. Dec., 151, Hall vs. Clagett. 6 H. & J., 445, Watkins vs. Stockett. 9 Gill, 430, Beard vs. Hubble. 6 Md. Rep., 479, Showman vs. Miller. 2 Johns. Ch. Rep., 274, Getman's exc'rs vs. Beardsley. Ibid., 557, King vs. Baldwin. Ibid., 585, Gillespie vs. Moon. Ibid., 630, Lyman vs. The United Ins. Co.

R. S. Matthews and S. T. Wallis, for the appellee.

1st. The evidence of Andrew F. Crane was properly admissible. It matters [**53]  not even if he assigned his interest for the purpose of becoming a witness. 7 Md. Rep., 603, Pegg vs. Warford. 4 Gill, 213, Crawford vs. Brooke. 4 Barn. & Adol., 760, Wilson vs. Hirst. 3 Phillips' Ev., 126, (u.)

2nd. The evidence of Jas. L. Gray was admissible, he having been called on to reiterate his testimony, after the release was executed, which made him competent. 1 Greenlf. on Ev., sec. 426, and cases there referred to. 5 Carr. & Payne, 454, Wake vs. Lock. 1 Phillips' Ev., 103, 104. 3 Phillips' Ev., 119, 123, note 663.

3rd. That both Magruder and Seidenstricker were incompetent witnesses for the company, being both liable over in case the company should be made responsible, through their default or misconduct, for loss not apparently covered by the policy. 1 Greenlf, on Ev., secs. 393, 394. 3 Phillips' Ev., 59, 68.

4th. The assignment of his interest in the policy by A. F. Crane to the appellee was bona fide made, and under the decision in Crawford vs. Brooke, 4 Gill, 213, the latter could sue thereon at law, but in equity the assignee has a right to sue, if he be assignee. Where the assignment is made, as in this case, after the loss, and for the sole purpose [**54]  of enabling the assignee to recover the loss, it is nothing more than the assignment of a debt, and does not come within the restrictive condition of the policy, forbidding it, or any interest therein, to be assigned, except by consent of the company, expressed by endorsement made thereon. 25 Barb., 193, 194, Goit vs. National Protection Ins. Co. 17 New York Rep., 615, Mellen vs. Hamilton Fire Ins. Co. See, also, 7 Barb., 570, Tillou vs. Kingston Mutual Ins. Co.; 3 Md. Rep., 353, New York Life Ins. Co. vs. Flack, and 16 Barb., 511, Wilson vs. Genesee Mutual Ins. Co.

5th. Nor was it necessary, after the Grays had assigned their interest in the property to the Cranes, for the latter to have procured from the former a transfer of the policy assented to by the company and endorsed thereon, even if the Grays be considered the parties insured, and intended so to be when the policy was issued and renewed. The fact that the loss, if any, was made payable to Wm. Crane & Co., was an assignment of the policy, at its inception, to them, with the assent of the company, and nothing more was required to enable them to recover upon it. 5 Rhode Island, 394, Brown vs. Roger Williams Ins. Co.

6th.  [**55]  At the time the policy was executed, the company, through its proper officers, was fully notified, not only by the written terms of the original application, but by parol notification, of the most express character, that the insurance was intended to cover the interest of the Cranes in the premises, and for their benefit altogether, and that the premises were under a previous insurance. It was left to the company to prepare the policy in view of this state of facts, and to meet and cover the wishes of the Cranes, and the distinct understanding of the parties. The policy was accordingly prepared either in good faith, and for the purpose of protecting the Cranes, or in bad faith, and for the purpose of defrauding them. In either case, it was the work of the company and its officers, and any defect by which it fell short of answering the purposes contemplated, as above stated, was the result of either mistake or fraud on the part of the company, and should have been reformed had the loss occurred before the policy expired. Again, on the 3d of October 1854, the Grays executed to the Cranes an assignment of their interest in the property and premises, which was but an equitable interest [**56]  under a bond of conveyance from the Stablers. Before and at the time when the policy was renewed, on the 13th of January 1855, the company had full notice that the agreement to assign, for security, had thus been carried out, and the insurance was renewed with the most explicit understanding in regard to this mutation of title on the record, as well as to the existing insurance in the Firemen's office. The testimony of A. F. Crane is ample and conclusive on this point; and it would be to justify and encourage an intolerable fraud to permit the company to escape from responsibility upon the score of any defect in the language of the endorsement on the policy or any failure to note thereon the pre-existing insurance. The whole facts were fully communicated to the company's officers. The preparation of the proper form of obligation was entrusted wholly to their good faith and discretion, and the form they adopted was, in good faith, accepted, and, it is submitted that, a court of equity should either enforce the policy and endorsement as they stand, or so reform both as to make the company responsible thereunder. 12 Eng. Law & Eq. Rep., 171, Collett vs. Morrison. 27 Eng. Law & Eq. Rep.  [**57]  , 144, 145, Wing vs. Harvey. 11 Barb., 624, Masters vs. Madison County Mutual Ins. Co. 4 Cowen, 663, Perkins vs. Washington Ins. Co. 16 Barb., 511, Wilson vs. Genesee Mutual Ins. Co. 19 Barb., 440, Viall vs. Genesee Mutual Ins. Co. 14 New York Rep., 262, 263, Ames vs. New York Union Ins. Co. 18 Barb., 541, Buckbee vs. United States Ins. Co. 1 Comstock, 291, Conover vs. Mutual Ins. Co. of Albany. 7 Foster, 165, 166, Marshall vs. Columbian Mutual Fire Ins. Co. 19 Penn. State Rep., 45, Perry County Ins. Co. vs. Stewart. 23 Penn. State Rep., 50, Howard Fire Ins. Co. vs. Bruner. 22 Conn., 575, Peck, et al., vs. New London Mutual Ins. Co. 26 Penn. State Rep., 199, Ins. Co. vs. Slockbower. 17 Ohio, 192, Neville vs. Merchants, &c., Mutual Ins. Co. 19 How., 318, Commercial Mutual Marine Ins. Co. vs. Union Mutual Ins. Co. 7 Barb., 570, Tillou vs. Kingston Mutual Ins. Co. 12 La. Ann. Rep., 486, Duncan vs. Sun Mutual Ins. Co. 16 B. Munroe, 258, 259, Etna Ins. Co. vs. Jackson & Co. 2 Amer. Lead. Cases, 617, 621, 625, 628.  

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

OPINIONBY:
TUCK 

OPINION:

 [*292]  TUCK, J., delivered the opinion of this court.
The policy, in this case,  [**58]  insured James L. Gray & Bro. against damage by fire to property in the city of Baltimore, "the loss, if any, payable to Wm. Crane & Co." The present appellee--the complainant below--claims relief as assignee of his partner's interest in the policy, on the ground that it should have been issued in the name of Wm. Crane & Co., as the assured, and also that the renewal should have been made in their name, or that of Wm. Crane & Son; the allegation being, that the company committed a mistake in these respects, which errors the complainant insists it is competent for a court of equity to correct, and to grant relief accordingly.
An examination of the record has satisfied this court that the complainant is not entitled to relief on the supposition that such mistakes were committed. We think that the policy was issued and accepted, and that it was renewed, as the 

 [*293]  parties concerned designed it should be; Wm. Crane & Co., being regarded by the Grays, as well as the company, as the persons beneficially interested in the property, and entitled to compensation in case of loss. Without reviewing the evidence, we may say that the learned judge below has demonstrated this very clearly [**59]  in his opinion.
The question then arises, whether Wm. Crane & Co. were under any obligation to have obtained for the Grays a transfer of the policy, assented to by the company, as in ordinary cases. On this point we are of opinion with the court below, that they were entitled to the benefit of the insurance without such transfer. Courts of justice must regard all the parts of a transaction, and impute to parties a motive for doing or saying what the case discloses. Every fact and declaration must be considered as the result of design, or agreement, and the intent of the parties should have effect, if it can be done consistently with established rules. Eaton vs. Jaques, 2 Doug. 460; Calvert vs. Bradley, 16 Howard 593. Tested by this principle, what are we to suppose the company meant by issuing this policy, with the endorsement, that the loss, if any, should be paid to Wm. Crane & Co.? It was an admission by it, that they had an interest in the contract, and were to receive the benefit of it. As observed by the judge below, the policy may be regarded as having been at its inception assigned to them with the assent of the company," which doctrine was announced [**60]  in the case of Brown vs. The Roger Williams Ins. Co., 5 Rhode Island, (2 Ames,) 394. An insurance was effected on property that was then mortgaged to the plaintiff in the suit--the policy having been issued to the mortgagors, "the loss, if any, payable to the plaintiff." To an action by the mortgagee the company pleaded that it, and the mortgagors, had referred to arbitrators the matter of the loss in question, that an award had been made, and this was relied on in bar of the suit. On demurrer to this plea, it was held that the clause making the loss payable to the plaintiff, was, "in legal effect, an assignment of the policy, concurred in by the company, to the plaintiff as mortgagee, by virtue of which he alone was entitled 

 [*294]  to receive the amount of the loss, as additional collateral security for his debt," and that "his interest in the policy required his assent to the adjustment of the loss, in order to make it binding upon him." Concurring with the court below, as to this part of the case also, we think the complainant may maintain his suit, unless it can be defeated by the defences relied on by the company.
We have no doubt of the competency of James L.  [**61]  Gray, and of A. F. Crane, to testify for the complainant. All their interest in the subject-matter was parted with. It makes no difference that Gray was examined a second time, after his release. "A release to qualify a witness must be given before the testimony is closed, or it comes too late. But if the trial is not over the court will permit the witness to be re-examined, after he is released, and it will generally be sufficient to ask him if his testimony, already given, is true, the circumstances under which it has been given, going only to the credibility." 1 Greenlf. Ev. 426. Wake vs. Lock, 5 C. & P. 454, (24 Eng. C. L. Rep. 402.) 7 Wend. 180, Tallman vs. Dutcher.
Nor does the fact that A. F. Crane transferred his interest for the purpose of becoming a witness disqualify him, however it may affect his credit. It is no uncommon thing, at law as well as in equity, for persons to execute or receive releases with such motive. Even where the interest is disclosed during the trial, the examination will be suspended in order that the disqualification may be removed. The case of Crawford vs. Brooke, 4 Gill 213, [**62]  has no application. There the question arose under an Act of Assembly, and related, not to the witness' competency, but to the bona fides of the plaintiff's assignment, without which he had no right to sue in his own name. Pegg vs. Warford, 7 Md. 582. Reynolds vs. Manning, 15 Md. 510.
We also think that Seidenstricker and Magruder were competent. The record does not disclose such an interest in either of them, as, under the authorities cited by the appellee, created a disqualification as witnesses for the defendant.
The last points necessary to be noticed are, whether the 

 [*295]  prior insurance was notified to the defendant, and if so, whether its not having been endorsed on the policy, affects the present suit? We conclude, from all the proof on this question of fact, that the president of the company was notified of the previous insurance. It is positively stated by the complainant's witnesses, and Mr. Seidenstricker admits a conversation about an existing insurance. It is more reasonable to suppose that his memory is at fault, on account of the number of applications made to him, that that the other witnesses, having had a particular [**63]  agency in this case, should fail to recollect so important a circumstance. The omission, probably, was caused by the failure of the president, at the time, to direct his clerk to make the endorsement, or by the neglect of the clerk, by whom it appears the policy was prepared and delivered to the assured.
Whatever effect the want of such an endorsement may have at law, in an action on the policy, we think it cannot be urged in a court of equity, in a cause otherwise free from objection. The judge below has correctly stated the law on the subject. The endorsement could have been made only by the company. If it be omitted, who is to blame? Certainly not the assured. These policies contain many stipulations--some of them operating as conditions precedent --for the benefit of the company, and few for that of the assured. It is too common for application to be met, and adjustment refused, on frivolous and unjust pretences, in order to defeat fair claims, on contracts of which good faith is the very essence, and we think it would promote the interest of insurance companies, and tend to a higher state of morals in business transactions, if they would exhibit more readiness to settle demands [**64]  upon them, than, as we discover from the numerous reported cases on the subject, appears to be usual with them. In this case the president of the company dictated the application himself; the prior insurance was made known to him; the parties relied upon him; they never went to the office of the company, he came to the counting-house of the complainant, seeking the risk, and after hearing all they had to say on the subject, he departed, 

 [*296]  and soon after sent the policy, and received the premium, his clerk saying that it was all right; the only defect, however, being that the company had omitted part of its own duty in not endorsing the former insurance. In such a case we are called upon to say that the party is without remedy; on the contrary, we think it would be a reproach to the jurisprudence of the State, if this company were discharged from their contract on any such ground. There is a distinction in cases where the preparation of an instrument belongs to the party to become liable under it; he ought to be dealt with more strictly. 19 Ves. 257. Insurance contracts are within this principle, and equity will interpose not only in cases of fraud, but also [**65]  of mistake, where a policy is drawn up in a form different from the application, or any thing is omitted which it is the duty of the company to insert, or endorse on the instrument. Collett vs. Morrison, 12 Eng. Law & Eq. Rep. 171.
Finding no objection to the decree below, it will be affirmed with costs.
Judgment affirmed. 

92 of 196 DOCUMENTS 

ELISHA LEE vs. FREDERICK BARREDA and PHILIP BARREDA.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 190; 1860 Md. LEXIS 61 

June 21, 1860, Decided 

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

Assumpsit brought on the 7th of April 1855, by the appellant against the appellees. Plea, non assumpsit. The case was submitted to the court below upon an agreed statement of facts, the material parts of which are as follows:

The plaintiff, being owner of the ship Hopewell, chartered her to the defendants, as agents of the Peruvian government, under a charter-party, executed at New York, on the 22d of March 1853. This charter-party stipulates that the vessel shall proceed from San Francisco to Callao, and thence to the Chinca Islands, there to take in a cargo of guano, (the owner to pay all port charges,) and to convey the same to Hampton Roads, and then to such port in the United States, not south of Hampton Roads or north of Boston, as the charterers might direct; "the freight to be paid, as under, at the rate of $ 19, in full, per ton of 20 cwt. net of guano, custom house weights. The master, if required, to be supplied in Callao with a sum not exceeding one-third of the freight, free of interest and commission, which is to be in part payment of the freight, at the exchange of twelve per cent. premium, together with the [**2]  cost of insurance on such advance, the captain's receipt to be considered binding on the owner. And should the charterers, or their agents, think fit to advance any further sum on the credit of the freight, for repairs, stores, and disbursements, such sums, with premium, interest, commission and insurance, to be considered in part payment of freight to the master, the captain's receipt for which is to be binding on the owner. One-third of the freight to be paid in cash on arrival at the port of discharge, the two months' interest being deducted, and the balance to be paid on the true and right delivery of the cargo, by approved bills at two months' date, or in cash, less the usual discount, at the option of the consignee, the captain to grant a receipt in triplicate for the amount of freight, when settled, stating also the number of tons of guano delivered." "The ship to be assigned to F. Barreda & Brother, or their agents at Callao, and at the port of discharge, who will charge, in the first place, one hundred and fifty dollars, and in the second, five per cent. on the freight, for managing the ship's business."

The vessel took her cargo of guano at the Chincha Islands, went [**3]  to Callao, and being about to sale thence to Baltimore on her voyage, the master applied to the defendants at Lima, under the provisions of the charter-party, for a sum of money in part of the freight money, and received from them an amount within the limitation of the charter-party prescribed for such advances; to wit: the sum of $ 4263.84, in which was included the twelve per cent. exchange premium, specified in the charter-party, and also the sum of $ 150, the amount stipulated by the charter-party, to be paid to the defendants for the services, as consignees, of them or their agents, rendered at Callao to the ship. After this money was so advanced or paid, the ship proceeded on her voyage to the United States, and in the course of the voyage was found to be in such a condition from perils of the sea that she was obliged to put back to Callao, where, on survey, she was found to be unfit to proceed on her voyage, and her cargo was, of necessity, discharged, and she was, of necessity, duly sold at Callao, the proceeds of sale being received by the auctioneer whom the master employed to make the sale. The auctioneer, after paying out of the proceeds several just and proper charges [**4]  against the vessel, had in his hands a balance of $ 1702, which the defendants claimed and embargoed or arrested in his hands, and which he, on the 12th of May 1854, paid to the defendants, at Callao, the master making protest, in due form, against such proceedings on the part of defendants, and this money they have since retained, refusing to pay it to the plaintiff on request, though he continued owner of the vessel up to the time of her sale as aforesaid.

It was admitted that the defendants effected marine insurance, in their own names and on their own account, upon the said advanced amount as "for advances on freight to be considered as freight," and that they made claim, (on the voyage being broken up by the said sale,) against the insurers for the amount insured and due, and that they settled with the insurers (but without any assent or privity of the plaintiff) their said claim, by accepting, on the 8th of December 1854, as satisfaction, the amount, with abatement of said sum of $ 1702, expressly, however, reserving to the plaintiff any right he might set up or have, and not by said settlement affecting or prejudicing the plaintiff's rights in any way, as against said insurers [**5]  or otherwise.

The plaintiff claims that he is entitled to be paid with interest from the 12th of May 1854, the said sum of $ 1702, as proceeds of his own property, and also the said sum of $ 150, and also the amount of the twelve per cent. exchange premium, computed on the said $ 1702, which two latter sums have been received by the defendants, in the payment obtained as aforesaid from the insurers.

The above admissions were made by the defendants, subject to the further facts qualifying the same, viz: that they have paid to their agents, in Callao, more than $ 150 proper and usual charges for the transaction of the business of the ship at Callao, on the occasion and in consequence of her putting into that port and being sold as aforesaid. That the advance of $ 4263.84, as aforesaid, was made upon the following receipt, signed by the master or captain of the vessel, and dated Lima, 30th January 1854: "$ 4263.84.--Received from Messrs. F. Barreda & Brother the sum of four thousand two hundred and sixty-three dollars and eighty-four cents, as advance upon the freight due to the American ship Hopewell, 414 tons register, under my command, for the cargo of guano that I have taken [**6]  on board, which amount, with the premium of insurance on the same, shall be deducted from the freight, and considered as part payment of it, according to what has been stipulated in the charter-party signed by me, and the charterers' agent, on 22nd of March 1853, at New York, being understood that both the freight and the ship, with all her appurtenances, as the owner's properties, are liable and responsible to the payment of the sum advanced." That the defendants have never denied the right of the plaintiff to a return of the twelve per cent. exchange on the $ 1702, received as aforesaid from the proceeds of the vessel's sale, but, on the contrary, have offered to pay the same frequently, and before the bringing of this suit, on a proper settlement of accounts between them. The defendants, however, have claimed, always, interest on the balance of the advance down to the time when they received the principal, less $ 1702, from the underwriters, and interest according to the Peruvian rate, 12 per cent. per annum.

The defendants claim, under these facts, the plaintiff is indebted to them, instead of their being indebted to him, and they claim to set off against any pretended claim [**7]  of the plaintiff, the amounts due them as hereinbefore stated, and other wise to resist his said claim as the facts may justify.

It was agreed, that the court may make inferences of fact, as a jury, from the above statement of facts, and that upon this statement, and such inferences as the court may so draw therefrom, the court may render such judgment as the same may justify, subject to the appeal of either party.

The defendants filed a statement or account of the plaintiff's claim, in which they charge themselves with 12 per cent. premium on $ 1702, and credit themselves with six per cent. interest on the whole of their advances down to the date when the sum of $ 1702 was collected, as well as with six per cent. interest on the balance from the latter date until the insurance was paid. By this statement, a balance of $ 43.99 was shown to be due the plaintiff, and for that amount only the court (LEE, J.) gave judgment in his favor, and the plaintiff appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

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

If advances be made by the charterer on freight simply on the personal credit of the owner, who is bound to repay the same as a debt, independent of the issue of the voyage, the charterer has no insurable interest in the amount so advanced as freight.

But where, by the terms of the charter-party, the charterer has a lien upon the freight for his advances, he has an insurable interest, on account of such lien, to the extent of his advances, which he may insure in general terms as freight.

Where a charter-party stipulates that the charterer, if required, shall advance a sum "not exceeding one-third of the freight, which is to be in part payment of the freight, together with the cost of insurance on such advances," it gives the charterer a lien upon the freight, for his advances.

The terms of a charter-party, by which the charterer has the right to retain the amount advanced out of the freight, gives him a lien on the freight which he may insure, notwithstanding he had the right to reclaim the amount upon failure of the voyage.

Where an advance on freight is made, and the voyage fails, the charterer may reclaim the sum advanced, with interest, from the time the advance was made.  

COUNSEL:
Chas. F. Mayer, for the appellant:

The amount paid to the master was not a loan on security of the freight, but a part payment of the freight, irreclaimable in any event by the appellees,  [**8]  creating in them an interest in the freight insurable, and which they insured as their own property. The general rule that advances on freight are recoverable if the voyage is not performed, is subject to the exception, that where there is a special agreement to the contrary, or evidence from which such special agreement can be inferred, it cannot be so recovered. The fact that the appellees insured this freight in their own names and as their own property, shows that they considered the advances as so much payment on account of freight which they could not recover back. They could not legally have insured this freight if it was to be repaid them, in case the voyage was not performed, for in such a case they would have had no insurable interest therein. 11 Md. Rep., 348, Atwell vs. Miller. 4 Maule & Selw., 37, De Silvale vs. Kendall. 5 Taunt., 438, Andrew vs. Moorhouse. 3 Wm. Rob. Adm. Rep., 175, The John. 2 Bos. & Pull., 321, Blakey vs. Dixon. 10 East., 555, Havelock vs. Geddes. 4 Camp., 241, Gillan vs. Simpkin. 6 G. & J., 372, Thomas' Adm'r vs. Vonkappf's Exc'r. The receipt of the captain, or master, given when this advance was made, can have no effect upon the question, because [**9]  he had no power under the charter-party to pledge the ship and her appurtenances for the repayment of this sum.

H. D. Loney and S. T. Wallis, for the appellees, argued:

1st. That the money advanced at Callao was but freight paid in advance and on account, and the appellees were entitled to recover it back when the voyage was broken up. 11 Md. Rep., 360, Atwell vs. Miller.

2nd. That there was no evidence of any special agreement to vary the general rule in such such cases. On the contrary by the very terms of the charter-party, a rate of premium to be charged for exchange on advances was specified, showing necessarily that the freight was not to be regarded as due till the voyage was ended, and that the advance was but an anticipation for the owner's convenience, to be replaced when the cargo should be delivered.

3rd. That the fact of insurance by the appellees as stated, so far from proving that the advance was to be made as an unconditional, absolute payment, is evidence incontrovertible of the contrary. The charter-party expressly authorizes such insurance at the owner's expense, and advances of this sort are properly insurable as freight, eo nomine, by the charterer,  [**10]  they being a charge and constituting a lien on the freight, and, therefore, giving to the charterer an insurable interest in the freight's being earned by the voyage. 34 Eng. Law & Eq. Rep., 503, Wilson vs. Martin. 1 Phillips on Ins., sec. 338. 1 Hall, 327, Robbins vs. New York Ins. Co. 12 La. Ann. Rep., 35, Kathman vs. General Mutual Ins. Co. 29 Eng. Law & Eq. Rep., 116, Hall vs. Janson. 6 Cal., 365, Lawson vs. Worms. 3 Wm. Rob. Adm. Rep., 170, The John. 11 Excheq. Rep., 684, Wilson vs. Martin.

4th. That, by the very terms of the captain's receipt, the ship and the freight were pledged for the advances, and this not only gave to the charterers an insurable interest in the freight, eo nomine, so as to rebut any presumption against the right to recover back, which might otherwise be drawn from the fact of insurance, but, in itself, gave them a right to the net proceeds of the ship.

5th. That the appellees were properly to be credited with the interest claimed in their statement of account, and the balance admitted by that statement and found by the court, was all that the appellant could rightfully recover.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and BARTOL,  [**11]  J.  

OPINIONBY:
BARTOL 

OPINION:

 [*197]  BARTOL, J., delivered the opinion of this court:
This case was decided by the Superior court of Baltimore city, upon an agreed statement of facts, (for which see ante., 191 to 194.)
The appellant, who was plaintiff below, recovered a judgment for $ 43.99, the balance conceded to be due him according to the account of the appellees; he claiming to recover a much larger sum, has prosecuted this appeal, which presents for our decision the single question, whether the appellees were entitled to be reimbursed out of the proceeds of the sale of the vessel at Callao, for the advances made by them to the master, in conformity with the provisions of the charter-party?
In the case of Atwell & Appleton vs. Miller, 11 Md. 348, this court, adopting the opinion of C. J. Parker, in Griggs, et al., vs. Austin, 3 Pick. 20, declared the law to be settled, "that freight is the compensation for the carriage of goods, and if it be paid in advance, and the goods be not carried, by reason of any event not imputable to the shipper, it is to be repaid; unless there be a special agreement to the contrary."
In this case there [**12]  is no evidence of any special agreement to vary the general rule. The single circumstances relied on by the appellant, for the purpose of showing that the money, so paid, was to be "irreclaimable in any event," by the appellees, is that they effected insurance in their own names and on their own account, upon the said advanced amount, "as for advances on freight to be considered as freight," which it is contended they could not legally do, if the amount so advanced by them was to be repaid in case the voyage should not be performed; because, it is said, in that case they would have no insurable interest.

 [*198]  In 2 Parsons Maritime Law, 87, 88, the author says: "A charterer may insure any advances he makes, if they remain at his risk, and are not repayable by the owner in case of loss. But one advancing money on freight has no insurable interest, if the money so advanced is to be repaid to him, if the goods do not arrive." The same principles are stated by the same author, in his excellent work on Mercantile Law, page 419, and a reference to the cases cited by him will show that the principles are correctly stated.
There can be no doubt that if advances be made by the [**13]  charterer on freight simply upon the personal credit of the owner, who is bound to repay the same as a debt "independent of the issue of the voyage," the charterer would have no insurable interest in the amount so advanced as freight.
In the case of Atwell & Appleton vs. Miller, 11 Md. 348, one of the questions was, whether the shipper who advanced the freight, was entitled to recover it back, the voyage not having been performed? It was contended that there was a special agreement, by which the money so paid, was to be at the risk of the shipper, and not reclaimable by him in the event of the voyage not being performed, and this court decided that the fact of an insurance on the freight being effected by the shipper was evidence proper to go the jury as tending to prove such special agreement; because, in the absence of such special agreement, the shipper in that case would have had no insurable interest in the freight. But in the case before us, the fact that the appellees effected an insurance furnishes no ground, whatever, in support of the appellant's claim. Such insurance was not inconsistent with the right asserted by the appellees to reclaim the money [**14]  advanced by them out of the proceeds of the sale of the vessel at Callao. Notwithstanding such right on their part, they had an insurable interest to the extent of their advances, which it was competent for them to insure as freight. By the true construction of this charter-party, these appellees had a lien upon the freight for their advances, which gave them an insurable interest.
In Phillips on Ins., Vol. 1, sec. 338, it is said: "But if 

 [*199]  the owner is absolutely chargeable with the advance, and liable for the same as a debt, independent of the issue of the voyage, then no insurable interest accrues to the charterers therefrom, any more than from any other demand he may have against the owner; except that if the charterer by the construction of the charter-party is entitled to a lien on the stipulated charter money, and has the right to retain the same, to the amount advanced, he has an insurable interest on account of such lien, to such amount, just as a lender on mortgage or bottomry, or any other party having a lien, has such an interest."
See, also, Robbins vs. N. Y. Ins. Co., 1 Hall 327, where it is correctly stated that such a lien [**15]  gives the charterer an interest which he may insure in general terms under the name of freight, without describing it as a mortgage interest.
It is unnecessary for us to express any opinion upon the effect of the captain's receipt, or his power, under the charter-party, to pledge the ship and appurtenances for the repayment of the freight advanced. The terms of the charter-party, by which the appellees had the right to retain the amount advanced, out of the freight, gave them a lien on the freight, which they might insure; notwithstanding they had a right to reclaim the amount upon a failure of the voyage. Their right to retain the funds received at Callao, out of the proceeds of the sale of the vessel, does not necessarily depend upon any lien on the vessel; but rests upon their right to reclaim the money advanced, from the owner; and to apply to its payment, by way of set-off, any money which came to their hands belonging to him. In the opinion of this court, the appellant is not entitled to recover either the sum of $ 1702, received by the appellees from the auctioneer at Callao, nor the sum of $ 150, which had been received by the appellees for their services, as consignees, rendered [**16]  at Callao. This latter sum the appellees were entitled to receive by the stipulations of the charter-party; and besides it is one of the admitted facts in the case, "that they have paid to their agents in Callao, more than $ 150 proper and usual charges for the transaction of the business of the 

 [*200]  ship at Callao on the occasion, and in consequence of her putting into that port and being sold." This fact of itself furnishes a sufficient answer to the claim of the appellant for the $ 150. The claim of the appellant for a return of the 12 per cent. premium on $ 1702, was conceded by the appellees and allowed in their account, amounting to the sum of $ 204.24. From this amount was deducted interest on the sum advanced. We think the interest is properly charged in the account. The contract for the transportation of the guano was an entire contract, and the consideration for the payment of the advance having failed, the appellees were entitled to reclaim the sum advanced with interest from the time the advance was made.
Judgment affirmed. 

93 of 196 DOCUMENTS 

THOMAS MCCUBBIN, and wife, vs. EDWARD PATTERSON, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 179; 1860 Md. LEXIS 60 

June 20, 1860, Decided 

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

The appellee, Patterson, on the 7th of June 1857, filed his bill of interpleader, against the several defendants and claimants of a fund on deposit, subject to his order, in the Savings Bank of Baltimore, in which, after setting out all the circumstances of the origin of the fund, he prays to be protected against the conflicting claims pressed upon him, and that to that end he be allowed to pay the money into court, and the parties defendants being there decreed to interplead, that he be dismissed with his costs and charges; all of which was decreed as prayed, and the complainant Patterson was dismissed from the proceedings.

The bills set out that, in 1820, the complainant and Joseph W. Patterson, as the firm of J. W. & E. Patterson, were carrying on an iron rolling mill on the Gunpowder river, in Baltimore county, and that among the hands in their employ was one William Woollen, who, though a competent workman, they had determined, on account of intemperance, to discharge, but concluded to retain in their employ on a verbal arrangement between him and them, that instead of his wages, as they thereafter became due, being paid [**2]  to him, (when they would be squandered,) they should remain in complainant's hands, to be held by him subject to the order of Providence Woollen, the wife of William, or be deposited by complainant in the Savings Bank of Baltimore, in complainant's name, for said Providence, "the intention of the parties to the arrangement being to create and preserve a fund for the maintenance of William, his wife and children, as well as to take from him the temptation to and means of intemperance." The bill states that this arrangement was acted on, and as William's wages became due they were paid to and retained by the complainant, to be applied as stated. That some years after this arrangement, Woollen and his wife ceased to live together, though no legal separation ever took place, and a dispute having arisen between them as to whom certain moneys, then in the hands of complainant, as also others deposited in the Savings Bank of Baltimore, belonged, an agreement of compromise was entered into, dated the 23rd of May 1843, and which is filed with the bill, as Exhibit A. The bill then proceeds to state the material parts of this agreement or compromise, admitting its statement that, at its date,  [**3]  there was on deposit in said Savings Bank, in complainant's name, for the use of Priscilla or Providence Woollen, the sum of $ 2832.20, and also, in his hands, the further sum of $ 239.48, and alleges that both William and his wife acted upon this agreement during their joint lives, and that Mrs. Woollen, who survived him by a few years, continued to act upon it to the time of her death, and that all its requirements have been complied with, except that contained in the fourth clause, which the complainant is unable to carry out for the reasons stated, and which induced him to file this, his bill of interpleader. That William Woollen died in 1850, it is believed, without administration upon his estate, and his widow, Providence, died about July 1853. That after her death, her children by the marriage with Woollen, all of whom or whose representatives are parties to the bill, claimed the distribution of the fund among them under this agreement, but that in the period between the death of her husband and her own death, she had made two wills, by the latter of which, revoking all former wills, she bequeathed to Thomas McCubbin and wife all her estate, and these parties claim the fund [**4]  by virtue of such bequest.

Agreement A, filed with the bill, is as follows:

"Articles of agreement made and concluded this 23rd day of May 1843, by and between William Woollen, of Baltimore county, of the one part, and Priscilla Woollen, his wife, of the other part. Whereas, a separation has taken place between the said parties; and whereas, there is deposited in the Savings Bank of Baltimore, in the name of Edward Patterson, for the said Priscilla Woollen, the sum of $ 2832.20, which fund is claimed by both of the parties to this agreement; and there is also in the hands of the said Edward Patterson, the sum of $ 239.48, which is also claimed by said parties; and whereas, they are anxious and willing to adjust all matters in dispute between them amicably, the have mutually agreed to the following terms, to wit:

"1st. That the deposit in the Savings Bank shall be continued in the name of Edward Patterson, as it at present stands.

"2nd. That from the moneys now in the hands of the said Edward Patterson, there shall be paid to each of the parties to this agreement, the sum of $ 75, on the day of the signing of this agreement, and the balance shall be deposited in [**5]  the Savings Bank, in the name above mentioned.

"3d. There shall be paid to each of the said parties during the term of their natural life, annually on the first day of April in each and every year, the sum of $ 75, out of the moneys so as aforesaid deposited in the Savings Bank, and that upon the death of either party, there shall be paid annually to the survivor, the sum of $ 120, out of the moneys aforesaid.

"4th. Upon the death of both of the said parties, the balance of the said moneys then remaining in the Savings Bank, shall be paid over by the said Edward Patterson, to the children of the said William Woollen, and Priscilla, his wife, or to their representatives, equally to be divided between them.

"5th. That the said Edward Patterson is requested to give orders to each of the parties hereto in pursuance of this agreement, and as the mutual friend of both parties to carry this agreement into effect.

"6th. That in consequence of the death of Parker Everett, the son-in-law of the said parties, leaving a widow and four or five infant children, there shall be paid annually, to the said William Woolen, for the support of the said widow and children, the sum of [**6]  $ 50.

For Wm. Woollen,

EDW'D PATTERSON.

For Priscilla Woollen,

WILLIAM F. GILES."

The answers of the other parties, except McCubbin and wife, admit the allegations of the bill, and submit to a distribution of the fund under the fourth clause of Agreement A. McCubbin and wife, in their answer, deny the origin of the fund as stated in the bill, and assert that the greater portion of it arose from the earnings and savings of Providence Woollen. They deny the validity of the supposed agreement or contract of the 23rd of May 1843, and aver that, even if that agreement was signed with the approbation of said Providence, which they do not admit, and acquiesced in by her during the life of William Woollen, it would not be binding upon her or her legal representatives, she being a feme covert at the time, and they deny that after the death of her husband, she did any act which could be regarded as an approval or ratification of this supposed agreement. They further aver, that the whole of this fund legally belonged to said Providence, and was not, in any manner, affected by the supposed agreement of May 1843, and that Thomas McCubbin, the executor of the last will of [**7]  said Providence, is the party entitled to receive the same, to be by him distributed according to the terms of said will.

Testimony was then taken on both sides, the purport of which sufficiently appears from the following opinion of the court below, (KREBS, J.) delivered upon passing the decree appealed from:

"The defendants, claiming under the second will of Providence Woollen, filed in this case, claim the fund in controversy as a part of her personal estate, having been settled, as they allege upon her by her husband, in his life time, as her sole and separate estate. It is a fund on deposit in the Savings Bank of Baltimore, in the name of "Edward Patterson for Mrs. Providence Woolen." This fact, unexplained, might furnish some ground for this claim. But the evidence shows clearly, I think, that this fund accrued exclusively from the wages of her husband, Wm. Woolen, earned in the employment of Messrs. J. W. & E. Patterson. It having been his money before it was deposited, those who claim it as her separate property, must show something more than the mere deposit in the above form, to establish the claim. They must show that it was so deposited with his assent, or in [**8]  pursuance of his order and direction, for the purpose of thus making it her separate property. The circumstances under which it became deposited in the Savings Bank, are fully explained by Mr. Joseph W. Patterson, one of the witnesses. He states that Mr. Woolen having been in the employment of the above firm, was discharged from their service in consequence of intemperate habits, and that they consented to re-employ him, on condition that he would abstain from drink, 'and to guarantee that, and as a provision for his family, he would allow his wife to draw his wages; this condition was made by witness, that his wife should draw his wages, to be used in the support of himself and wife and children.' This witness also proves, that after this arrangement, 'his wages were paid on the above condition;' that 'the hands were settled with every six months; after, or at the time of each settlement, Mrs. Woolen would bring to Baltimore a certificate of the balance due her husband and children, (having drawn in the meantime part of the wages, to support the family,) which balance was placed in the Savings Bank, in the name of Edward Patterson, for Mrs. Providence Woolen.'

"I am clearly of [**9]  opinion, that the condition and arrangement under which, by the agreement of Mr. Woolen, his wife was permitted to draw these wages, gave her no right to claim the money that accrued therefrom, as her separate property; that there was no agreement on his part that she should have it as such; but only that she should use it in the support of himself, his wife and children, and preserve it from being squandered by him in the indulgence of his unfortunate habits. The deposit in the Bank in the form in which it was made, was no part of the condition under which it was agreed that she should receive these wages; but it appears to have resulted from the circumstance, that a considerable surplus was left after the application of these moneys to the purposes specially contemplated. Nor does it appear that he directed, or ever knew, the form in which the deposit was made. I am of opinion, therefore, that there was nothing in the terms of this arrangement as originally made, or in the circumstances of the deposit, that gave to Mrs. Woolen any such right in this property as that she could dispose of it by last will and testament, or otherwise. This was a family arrangement, prompted by the humane [**10]  feelings of the Messrs. Patterson, and having in view the most praiseworthy purposes, and one of those arrangements which a court of equity will aid in carrying into execution, so far as it can be done. It undoubtedly contemplated that these parties should continue to live together as man and wife, and no doubt the benefits to enure from it to the wife would have been forfeited by her if she had deserted her husband, or separated from him without justifiable cause. A separation, however, did in fact take place. In consequence thereof, and of a controversy between these parties in regard to this fund, the agreement of May 23rd, 1843, filed with the proceedings, was entered into between them. This instrument I must regard as binding upon the husband, whatever doubts may be entertained in regard to its effect upon the rights of his wife. As she had, according to the view that I have taken of her rights, no interest in the fund, except what arose from her title to enjoy it, in common with her husband and their children, as originally provided for, there could be no serious objection to the provisions of that writing, unless they varied substantially the terms of the arrangement, so as [**11]  to render them less favorable for her. It does not appear clearly that they have any such effect.

"The agreement adopts the principle of the original arrangement, substituting in lieu of the application of the money arising from the wages, by the wife, to the support of her husband, herself, and their children, the payment of specific sums out of it, to them severally during their joint lives, and of a larger sum to the survivor, and of the balance to their children. Conceding that it is doubtful, whether this instrument of writing, so bound this married woman, as to have precluded her from insisting, upon the death of her husband, that what then remained of this fund, should be regarded as a part of his personal estate, in which she was entitled to her distributive share, yet inasmuch as she did not then take that ground and claim to have it divided between herself and his personal representatives, in which event they would have had the immediate enjoyment of their respective shares, but preferred, her disability being then entirely removed, to receive annually the sum specified in the agreement to be paid to her, up to the time of her death, as the evidence shows she did, she [**12]  must in my opinion, be regarded, in equity, as having waived any supposed rights she might have had as distributee of her husband's personal estate, and as having adopted, as between herself and the distributees, the terms of this written agreement, and as having agreed to be bound thereby. She seems to have preferred the chances of what she might have received during her life time, in these annual payments, to any absolute share of the fund. And it would not be just, after she had selected this alternative, which might have deferred the enjoyment of their shares, by the husband's personal representatives, to a very distant day, to permit those who represent her, now that her life has terminated sooner than might have been expected, to insist that she had rights as a distributee of this fund, in the character of the widow of the deceased, for this is the most favorable view that could be taken of her rights in reference thereto, being satisfied as I am, that she had no claim to it, as her separate estate. I am of opinion, therefore, that this fund belongs to the children of William Woolen, and Providence his wife, the parties referred to in the 4th article of the said instrument of [**13]  writing."

A decree was then passed, directing the fund in court to be paid to the children and representatives of deceased children, of William and Providence Woolen, and from this decree McCubbin and wife appealed.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

A laborer was employed on condition that he would abstain from drink, and would allow his wife to draw his wages, to be used in support of himself, and wife and children. The wages were paid on this condition, every six months, a part having been drawn by the wife to support the family, and the balance deposited in a savings bank, in the name of the employer, for the wife. In the course of time, the balances so deposited, amounted, with interest, to a considerable sum, and constitute the fund in dispute. It does not appear that the husband directed or ever knew of the form in which the deposit was made. HELD:

That the condition and arrangement under which the wife was permitted to draw these wages, and the circumstance of the deposit, gave her no right to this fund as her separate estate, so that she could dispose of it by will or otherwise.

An agreement made in 1843, between husband and wife, stated, that they had separated, and that a certain fund was claimed by each, and to adjust this dispute it was agreed that the fund should remain as it stood, and that $ 75 per year should be paid therefrom to each of the parties during their joint lives, and $ 120 per year to the survivor during life, and upon the death of both, the balance of the fund then remaining should be paid to their children and their representatives equally, to be divided between them. The husband died in 1850, and the wife in 1853. HELD:

That this agreement was binding on the husband, if not on both, and the wife after his death, having received the sum specified therein up to her death, must be regarded in equity as having waived any right she may have had to any part of this fund, as widow, and to have adopted the agreement as between herself and the distributees of her husband, and as having agreed to be bound thereby; the fund, therefore, belongs to the children.  

COUNSEL:
Coleman Yellott, for the appellants, argued:

1st. That the funds deposited in the Savings Bank, in the name of "Edward Patterson, for Mrs. Providence Woollen," and the accrued interest and dividends, were the separate estate of Mrs. Woollen, on the 23rd of May 1843, and William Woollen had, at that time, no legal or equitable title thereto, or interest therein; for 1st, even if it was a mere gift, the husband and his personal representatives were bound thereby, and it could be impeached only by his creditors. Clancy on Husband & wife, 259, 260. 2 Story's Eq., sec. 1380. 4 Mason, 443, Picquet vs. Swan. 6 Cush., 20, Fisk vs. Cushman. 2 Kent, 162. 2 Md. Ch. Dec., 353, George vs. Spencer; 2nd, it was not a mere gift, but the transfer of the husband's wages to the wife, was for a consideration received by him. That consideration was, 1st, employment by the Pattersons; 2nd, the labor and earnings of Mrs. Woollen, they being bestowed in the support [**14]  of his family and himself; in order that his earnings might be saved for her benefit; 3rd, the removal of all temptation to dissipation, by placing the money entirely beyond his control, which could be done only by vesting it absolutely and exclusively in her. 1 Md. Ch. Dec., 523, Brooks vs. Dent. 6 Md. Rep., 430, Bowie vs. Stonestreet. 9 Md. Rep., 480, Stockett vs. Holliday & wife. 3rd. Not merely the actual deposits, but the interest and dividends accrued thereon, were the separate property of the wife in May 1843. 2 Roper on Husband & Wife, 140. 4 Mason, 444, 454, 455.

2nd. The written agreement, of the 23rd of May 1843, could not operate to impair Mrs. Woollen's right to this fund, or to give the children of Mr. and Mrs. Woollen any legal or equitable claim thereto after her death. To have such operation this paper must be regarded either as a contract or a will. If regarded as a contract, it was void as to her, for, 1st, the general rule is that all contracts by a feme covert are void. 8 Gill, 139, Smith vs. Morgan. 2 Bright on Husband & Wife, 37, 38. 2nd. All contracts between husband and wife are void as to her, though they may be binding upon him. 3rd. Contracts between [**15]  husband and wife for his benefit are not binding upon her unless made voluntarily. Here the evidence shows that she claimed the whole fund; and that there was a dispute between them about it. The paper shows upon its face that it was not executed voluntarily by the wife, but through solicitation and importunity on the part of the husband. 2 H. & G., 40, Lowry vs. Tiernan. Clancy on Husband & Wife, Book 5, ch. 8. 4th. A feme covert cannot during coverture dispose of her separate estate except in the very mode pointed out in the deed or other paper creating the trust. 4 Md. Ch. Dec., 417, Williams vs, Donaldson. 5 Md. Rep., 220, Miller vs. Williamson. 11 Md. Rep., 492, Cooke vs. Husbands. 5th. If this was virtually a contract for separation between husband and wife, then it was one against public policy and void as to her, and equity will refuse to enforce it. 9 Md. Rep., 310, Lippy vs. Masonheimer. 6th. It was void because not signed by Mrs. Woollen, but by a gentleman professing to act as her attorney, and a feme covert cannot act by attorney, and the courts will not aid a defective execution of a power by a feme covert. 6 H. & J., 490, Wallingsford vs. Wallingsford. 1 Bright on Husband [**16]  & Wife, 30, 31. 7th. It was void as a contract because without any valuable consideration received by her. The whole fund belonged to her. She gave away nearly all and received nothing in return. 8th. As a contract it was merely executory, because no change of investment. The fund still standing in the name of Patterson for the use of the wife, so far as the husband was concerned, could not be claimed by his executor or administrator, for the wife's choses in action not reduced into possession, survive to her and pass to her executor or administrator. Act of 1798, ch. 101, subch. 5, sec. 8. 1 Roper on Husband & Wife, 208, 212. Clancy on Husband & Wife, 119, 120. 1 Bright on Husband & Wife, 48, 50, 51. 11 Md. Rep., 512, Bond vs. Conway. 13 Md. Rep., 361, Chew vs. Beall. 9th. There could be no claim by the children mentioned in the fourth clause of this paper, because this supposed contract was one to which they were not parties, made by a feme covert, without consideration, and not even signed by her. 10th. This paper was void abinitio, and no subsequent ratification, implied or express, could give effect to such a paper as a contract if there was no consideration received by Mrs. Woollen [**17]  for such ratification after her husband's death as there was not. 2 Roper on Husband & Wife, 96. 11th. There was no ratification of the paper after the death of the husband. 12th. The paper could pass no rights to the children mentioned in the fourth clause, because not recorded as required by law. If regarded as a will, the paper could pass no title to the children therein mentioned. 1st. Because Mrs. Woollen had, at the time, no power to make a will, and there was no republication after her husband's death. 2nd. Because all wills are recoverable at pleasure, and this was actually revoked by two wills made by Mrs. Woollen after her husband's death. For these reasons the case must be decided as if this paper had never been executed.

3rd. If William Woollen had any right, legal or equitable, to this fund, before or after the 23rd of May 1843, then Mrs. Woollen, as his widow surviving him, was entitled to her one-third part thereof, and she never having expressly released or assigned this claim, McCubbin, as her executor, was entitled to demand and receive such portion of the fund. Act of 1798, ch. 101, sub-ch. 11, sec. 2.

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

1st.  [**18]  That the whole controversy turns upon the original agreement of Woollen with his employers in 1820, and that, as shown by the evidence, was, that the wages whether paid into the hands of the wife for the immediate use of the family, or reserved to be deposited by Mr. Patterson in the wife's name, so as to place them beyond the reach of Woollen, were to be a fund for the support and maintenance of himself, wife and children. This gave her no power of disposition over the fund beyond applying the sums received to the purposes of the family, and consequently, there being nothing in the terms of the original agreement, or in the form of the deposit in the Savings Bank, as explained by the proof of that agreement, which would vest in Mrs. Woollen any separate property or powers over the fund, it cannot be affected by any will or other disposition she might make.

2nd. There is no evidence of any separate means or personal earnings of Mrs. Woollen's being commingled with the sum on deposit in the Savings Bank of Baltimore. Nor is there any evidence of any such earnings by her beyond what she saved as a surplus over the family wants, from the sums from time to time paid her by Mr. Patterson,  [**19]  and which she had kept separate on deposit in the Howard Savings Bank. That sum she doubtless contemplated when executing her wills.

3rd. If we have reference to the agreement of May 1843, even conceding Mrs. Woollen's inability, by reason of coverture at that time, to appoint an agent or attorney, yet that paper embraces substantially the original arrangement; is just, fair and reasonable; and as Mrs. Woollen enjoyed its benefits during their joint lives, and survived her husband several years, without repudiating that settlement and electing to claim whatever right the law would give her against her husband's estate, but, on the contrary, acted upon the arrangement to the day of her death, her representatives must be regarded in equity as concluded from denying the validity of the agreement of 1843, which vests this fund in the children, the appellees. 2 Ves., Sen., 663, Pawlet vs. Delaval. 2 Story's Eq., secs. 1097, 1372. 2 Sch. & Lef., 444, Birmingham vs. Kirwan. 2 Gill, 181, McElfresh vs. Schley.  

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

OPINION:

 [*190]  By the Court:--We concur in the views taken of this case by the Judge of the Circuit Court,  [**20]  and, for the reasons assigned in the opinion delivered by him, the decree will be affirmed.
Decree affirmed. 

94 of 196 DOCUMENTS 

JOHN DORN and NICHOLAS KOSTNER vs. ANDREW BAYER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 144; 1860 Md. LEXIS 56 

June 15, 1860, Decided 

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

The object of the bill filed in this case, on the 21st of December 1857, by the appellee against the appellants, was to have vacated, as fraudulent, a bill of sale from Kostner to Dorn, dated the 27th of August 1857, by which the grantor in consideration of $ 600, in hand paid, conveyed to the grantee, certain household furniture, and stock of goods, store fixtures, &c., in a confectionary store, No. 72, South Bond street, Baltimore, and for an injunction and a receiver.

The bill alleges that, in May 1857, the complainant, Bayer, sold and conveyed to Kostner, for $ 1775, a house and lot on Bond street, taking a mortgage thereon for the whole of the purchase money; that, at this time, Kostner owned a house and lot, in Caroline street, and goods and chattels in his store and dwelling; that Kostner failed to pay any part of the mortgage debt, and sold his house and lot, in Caroline street, and conveyed, by bill of sale, the goods and chattels aforesaid to Dorn, for the pretended consideration of $ 600, thus leaving himself without any visible means to pay his debts, and consequently insolvent; that upon foreclosure of the mortgage,  [**2]  and sale of the Bond street property, there remains due the complainant the sum of $ 300 on the mortgage debt; and that Kostner is indebted to others in small sums of money, and has nothing whatever to pay his debts except the property above mentioned. The bill then charges, that the bill of sale to Dorn was without any legal consideration, and is colorable merely, and was made and executed with the common intent and design of the parties thereto, to hinder, delay and defraud the creditors of Kostner, who has, ever since the making of the same, had the possession and use of the property therein mentioned, in the same manner as before, and if either Dorn or Kostner knew these proceedings were being instituted, they would conceal and carry away the said goods and chattels where complainant could never find them. The bill then calls for answers, but not on oath, and prays that said bill of sale may be declared void, and for an injunction to restrain the sale of the goods mentioned in the bill of sale, and the appointment of a receiver to take charge of them, and for general relief.

The injunction was granted, and the receiver appointed upon the filing of the bill, and the defendants [**3]  then answered under oath, denying all fraud charged in the bill, and averring the perfect bona fides of the transactions in relation to the bill of sale. On filing their answers, the defendants entered an appeal from the order granting the injunction and appointing the receiver, which, by agreement, was subsequently withdrawn, and the injunction was, by order of court, continued till final hearing. A commission was then issued and testimony taken, the material parts of which are as follows:

In reference to the complainant's claim, it was admitted that the mortgage to Bayer was foreclosed under proceedings in the Circuit court for Baltimore city, and that the property sold under the decree for $ 1600, the balance of which, amounting to $ 1458.36, after payment of costs, commissions, and expenses, was applied in part payment of Bayer's mortgage debt; and that this mortgage debt was evidenced by two promissory notes, made by Kostner, one for $ 1200, and the other for $ 575, the latter of which was endorsed by A. Baumgartner, for Kostner's accommodation, as a further security for the payment of the said note, which was not protested at maturity.

George Bayer, a witness for the [**4]  complainant, testified that he had a conversation with Dorn, on the 19th of December 1857, in which witness asked him about the bill of sale he took on Kostner's store, and Dorn said he was persuaded by Andrew Baumgartner and Mrs. Baumgartner, to take the bill of sale, for the reason so that Andrew Bayer could not get hold of Kostner's store; witness then asked Dorn, if he had paid the $ 600 for that store, to which Dorn replied that he had not paid any money, that he had only done it for show, so that Andrew Bayer could not get hold of the store; Dorn then said to witness aside, "Don't say anything about it."

John Schwert, another witness, testified that the counters and furniture in the dwelling and store of Kostner, in Pratt street, where he has lived since the 16th of January 1858, and carried on the confectionary business, are the same that he had in Bond street, and he removed them there from Bond street.

Testimony was also offered on the part of the complainant, by other witnesses, tending to show that Kostner had no other property, besides the house and lot in Caroline street and the house and lot in Bond street, and the furniture, stock of goods, and fixtures, before [**5]  mentioned.

Frederick Kline, the only witness for the defendants, testified that, some time in the summer of 1857, Kostner and Dorn came to the house of witness, and requested him to draw up a bill of sale, and, if witness is not mistaken, the amount for which it was to be drawn was something like $ 600; that the goods sold were Kostner's household furniture and store goods, he thinks; at that time, Kostner was living in Bond street, and the property, conveyed by that bill of sale, were the furniture and store goods in that house; during the time witness was writing the bill of sale, Kostner and Dorn had a conversation between themselves about how much of the consideration of the bill of sale had passed between them already, and they agreed there was an amount of between $ 153 and $ 154 (the odd cents witness does not remember) then coming to Kostner from Dorn, as the balance to make up the consideration in the bill of sale, and this balance was paid to Kostner by Dorn, in the presence of witness, in notes and gold, with some little silver.

The court (KREBS, J.) passed a decree declaring the bill of sale null and void as against the complainant and all other creditors of Kostner,  [**6]  who may become parties to this suit. From this decree, and from the order continuing the injunction till final hearing, the defendants appealed.  

DISPOSITION:
Decree affirmed with costs.  

HEADNOTES:

Where a bill does not call for an answer under oath, and it is not read by the complainant, at the hearing, as evidence, it cannot, though sworn to, be considered as evidence on final hearing, and can only be looked to by the court, in connection with the bill, for the purpose of ascertaining what points are at issue.

A bill of sale, conveying, as far as appears, all the property of the grantor, (he not showing that he had any other property,) and the grantee admitting that he had paid nothing for it, and that he was persuaded to take it, in order to prevent a creditor of the grantor from getting hold of his store, is fraudulent and void as against creditors.  

COUNSEL:
Thos. 1. Warrington for the appellants:

1st. The conveyance sets forth upon its face a good and valid consideration; the answer is clear that Dorn paid a fair consideration and the proof sustains the answer. The conveyance is prima facie evidence for the appellants. The possession was consistent with the conveyance. A court of equity, like a court of law, will not infer fraud--it must be proved. 3 Md. Rep., 225, Glenn vs. Grover, et al. 9 Gill, 218, Beatty vs. Davis. 2 Md. Rep., 375, Faringer vs. Ramsay. Courts of equity always reluctantly interfere against the legal title and only in cases of fraud clearly proved. 3 Md. Rep., 99, Furlong vs. Edwards. The appellee has nothing to complain of; he was not a creditor at the time the conveyance was made. His debt was secured by a mortgage and Kostner's note, endorsed by Baumgartner, for $ 575, which he still holds, and is liable to be put in suit at any moment. Again, where a debt is secured by mortgage it repels the presumption of fraud. 3 Johns. Ch. Rep.  [**7]  , 481, Reade vs. Livingston.

2nd. The validity of the conveyance depends on the intention of the parties to it. As to their design they have been called upon by the complainants to speak, and in such a case an answer, responsive to the bill, emanating from a party made a witness by the act of the complainant, speaking in reference to the motives and views under the influence of which the transfer in dispute was made--a matter lying necessarily in their own bosoms--must be held as conclusive upon the question of intention, unless overcome by the testimony of two witnesses, or that of one with corroborating circumstances. 3 Md. Rep., 229, Glenn vs. Grover, et al. 9 Gill, 218, Beatty vs. Davis. And if there were pregnant circumstances, yet standing alone, without the aid of positive testimony of a single witness they would be unavailing. 3 G. & J., 433, Roberts vs. Salisbury.

3rd. There is nothing in the cause to justify the court in making the injunction perpetual. The answer denies all fraud and insolvency. Where the grantor in a deed does not become an applicant for relief under our insolvent laws, it cannot be pretended that his deed was made with the view of becoming an [**8]  insolvent debtor. 4 Gill, 38, Wheeler vs. Stone.

4th. There is no proof of fraud or insolvency. The appellee has been unable to show that Kostner, at the time of the conveyance, was in debt to any one, and, therefore, the averments in the bill which assail it on the ground of fraud and insolvency fall to the ground. 4 Gill, 38.

5th. It is a well settled doctrine that a debtor, in failing circumstances, may prefer one creditor to another, by a transfer of his property, and it is equally clear that if such a transfer be assailed on the ground of fraud, the onus of proof lies on the party impeaching the deed. 3 Md. Rep., 212, Glenn vs. Grover, et al.

6th. It is settled as a general rule, with but few exceptions, that no creditor can have a voluntary deed set aside on the ground of its having been made to his prejudice, unless he was a creditor at the time the conveyance was made. 2 Bland, 26, Kipp vs. Hanna. 5 G. & J., 432, Birely vs. Staley. This doctrine applies with much stronger force to a conveyance which shows upon its face a valuable consideration.

7th. Where a creditor seeks the aid of a court of equity to pursue personal property fraudulently conveyed away,  [**9]  a judgment must first be obtained against the debtor before such property can be reached, and in such a pursuit a fieri facias must also have been issued and returned showing that the debtor has no goods and chattels whereby the debt can be satisfied. After such a return is made then the creditor may go into a court of equity. 5 G. & J., 432. Again, a creditor at large, before judgment, is not entitled to the interference of a court of equity by injunction to prevent a debtor from selling or disposing of his property in fraud of such a creditor. 2 Johns. Ch. Rep., 144, Wiggins vs. Armstrong. 10 Md. Rep., 500, Uhl vs. Dillon.

8th. Where a mortgagee files a bill for foreclosure and sale he is confined to his remedy on the mortgage. The suit cannot be extended to other property, or to the person of the mortgagor in case the mortgaged premises prove insufficient to satisfy the debt. The further remedy of the mortgagee is at law, where he may at the same time sue on the bond, note, or on the covenant to pay the money, and after a foreclosure and sale in equity, he may sue at law on the bond or note and recover the deficiency. 3 Johns. Ch. Rep., 330, Dunkley vs. Van Buren. 2 Bland,  [**10]  629, Andrews vs. Scotton.

9th. Where a creditor holds a promissory note, endorsed and passed to him by the debtor, as additional security to a mortgage for his claim, he is bound to exhaust all his legal remedies on that note, and on a bill filed by him, he must aver such facts in his bill, showing that he has exhausted his remedies at law, otherwise a court of equity should not interfere. 12 G. & J., 477, Richardson vs. Stillinger.

L. M. Reynolds for the appellee:

If it appears that this deed was made to hinder and delay creditors, the decree must stand if Bayer is one of these creditors. And if the deed be void and fraudulent, then must the injunction and receiver stand, to make the decree at all available as a remedial instrument. It is contended that the answers are evidence to be overcome with two witnesses, or one with corroborating circumstances. Such is not now the law of Maryland, when the bill does not require the answer under oath. Act of 1852, ch. 133. It is said, again, that Bayer was not a creditor of Kostner at the time of making the deed because his debt was secured by a mortgage and Kostner's notes. The reason assigned shows he was a creditor at the [**11]  time. It is likewise said that because the mortgage claim was also represented by certain notes in the possession of Bayer, he should have first exhausted his remedy on these notes, but it is admitted that the mortgagee may pursue his remedy on the mortgage itself, the bond or the notes, and the covenant to pay all at the same time. 2 Bland, 665. This case comes within the law of the case in 2 Bland. Here Bayer had exhausted his remedy against the mortgaged premises, and was about to bring his suit at law on the covenant in the mortgage when the Act of 1835, ch. 380, permitted him to go into equity immediately.

There can be no doubt but that Kostner and his friend Baumgartner, who had escaped his liability on the note of $ 575, (Bayer having neglected to have it protested,) contrived to prevent Bayer from making out of Kostner's store any balance there might remain of the $ 1775, after selling the mortgaged property, and that Dorn was their good-natured and confiding instrument to do it: When Dorn is asked about the bill of sale by Bayer's brother, he confidingly tells him all about it, confessing that it was done for show, that he was induced to do it in order to prevent Bayer [**12]  from getting the goods, and that he had paid nothing on them. It may be that, for the purpose of having at least one witness, Dorn and Kostner went through the form of passing some money in the presence of Kline, and saying some words in reference to it in his hearing, but the story that Dorn would have made a permanent investment of $ 600 in such property as that mentioned in this deed--a confectionary like that of Kostner's-- is rather too incredible.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*151]  LE GRAND, C. J., delivered the opinion of this court.
The object of the bill in this case is, to have declared fraudulent and void a bill of sale of certain property from Nicholas Kostner to John Dorn, and, as auxiliary thereto, an injunction restraining the sale of the goods mentioned in the bill of sale, and the appointment of a receiver to take charge of them until the further order of the court. On the filing of the bill, the court ordered the injunction and appointed a receiver. The defendants answered under oath and then appealed, but this appeal was abandoned, the court continuing the injunction and receiver until the final hearing. [**13]  The 

 [*152]  court decreed the bill of sale to be void, "as against the complainant and all other creditors of the defendant Kostner, who may become parties to this suit." The bill does not ask a decree for the sale of the property, nor does the court pass one.
The facts alleged in the bill are simply these: That the appellee, Bayer, sold to the appellant, Kostner, a house in Bond street, giving him a deed for it, and taking a mortgage on the same for the payment of the purchase money; that at the time of these transactions, Kostner was the owner of a house on Caroline street, Baltimore, and was the proprietor of certain household furniture and the stock in a confectionary store; that he failed to pay any part of the mortgage debt, and that, with a view to defraud the appellee he sold the house in Caroline street, and fraudulently made the bill of sale to the appellant, Dorn, of the household and other goods; that, in fact, the bill of sale was wholly without consideration and intended to hinder, delay and defraud the creditors of Kostner. The answers expressly deny, under oath, all fraud and aver the perfect bona fides of the transaction. The bill did not call for the answers [**14]  under oath, and, there is nothing in the record to show they were read at the hearing by the complainant; they, therefore, are not to be taken as evidence at final hearing, and can only be looked to by the court in connection with the bill, for the purpose of ascertaining what points are at issue. The decision of the case depends, entirely, upon the proof adduced on the part of the respective parties. Some portions of it is unintelligible, and other parts of it without any bearing on the merits of the controversy. Yet, there is sufficient in it to warrant the decree of the Circuit court.
It is clearly to be inferred, from the whole proof, that the defendant, Kostner, had no other property than his house in Caroline street, his household furniture and confectionary stock, and the house on Bond street.
The only evidence adduced to show the absence of fraud in the making of the bill of sale, is that of the witness 

 [*153]  Frederick Kline, who testifies that, whilst he was employed in the preparation of the bill of sale, the defendants, Kostner and Dorn, engaged in conversation as to the amount of the purchase money which then remained due from Dorn to Kostner, and that it was [**15]  ascertained between them to be $ 153 or $ 154 and some cents, which were paid to Kostner by Dorn in the presence of witness. There is no evidence, whatever, of any other payment than that testified to by Kline. If any was made, no reason is given why proof of the amount and time has not been furnished. If he had other property he should have shown it. Birely vs. Staley, 5 Gill & Johnson 432. In the absence of all explanation, such silence on the subject is, certainly, a circumstance of suspicion. If the testimony of Kline stood alone, it would have its proper weight in rebutting the allegations of fraud, but, when taken in connection with the other evidence, it is no strained inference that the conversation of Kostner and Dorn, in the presence of the witness, Kline, was preconcerted between them, and was a part of the machinery of the fraud; a conversation intended to lull suspicion and cover up delinquency.
There can be no stronger evidence against a man than his own admissions. And we have, in this case, the declaration of Dorn, that he had not paid any thing for the goods. The witness George Bayer--a witness unimpeached--testifies that Dorn, in reply to [**16]  queries put to him, said: "That he was persuaded by Andrew Baumgartner and Mrs. Baumgartner to take the bill of sale for the reason so that Andrew Bayer could not get hold of Kostner's store," and, that he had not paid anything for the goods. These admissions fully bear out the allegation of fraud in the bill of complaint, and are fortified by the fact, proven by the witness John Schwert, that "the counters and furniture in the dwelling and store in Pratt street,"--the dwelling and store to which Kostner removed after the execution of the bill of sale--"are the same that he had in Bond street, and he removed them from Bond street."

 [*154]  The claim of the complainant, and the fraudulent character of the bill of sale, being established to our satisfaction, we affirm the decree of the Circuit court.
Decree affirmed with costs. 

95 of 196 DOCUMENTS 

AUGUSTE EWALT and JAMES MYERS vs. LUTHER O. HARDING and WM. HOPKINS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 160; 1860 Md. LEXIS 58 

June 15, 1860, Decided 

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

Assumpsit, for money had and received, brought on the 25th of November 1856, by the appellees against the appellants. Plea non assumpsit.

Exception. The plaintiffs and defendants were commission merchants, trading, the former under the firm of "Harding & Hopkins," and the latter of "James Myers & Co." In October 1856, a lot of wheat was consigned to the plaintiffs for sale, and on board the same vessel was also a lot consigned, by Col. Taylor, of Virginia, to the defendants for the same purpose, that consigned to the plaintiffs being the larger lot. On the 13th of October 1856, the plaintiffs sold both lots to one Ballard for cash. On the 18th of October Ewalt, one of the defendants, called at the counting-room of the plaintiffs, and asked for the proceeds of Taylor's wheat, to which Harding, one of the plaintiffs, answered, that he had not received the money for it, but that they had the money and might as well pay, and gave him a check for $ 594.87, without deducting any commissions, and Taylor's account, with the defendants, was immediately credited with the proceeds, a part being applied to a note due by him and held by [**2]  them, and the balance remitted to him by the defendants on the 24th of October. Ballard's name was not mentioned in this conversation as the purchaser of the wheat. On the 24th or 25th of October, Harding came to the defendants' store, and for the first time stated the wheat had been sold to Ballard and that Ballard had failed. Harding also then stated that he had been on to New York and tried to attach the wheat, but had not succeeded. Harding then requested the defendants to return him the amount of the check, which they declined, on the ground that they did not know the wheat had been sold to Ballard, that they had already credited Taylor with the proceeds, and that, under the circumstances, the loss ought to fall upon the plaintiffs.

The proof further shows that sales of grain in Baltimore are made for cash on delivery, but that often several days elapse between the delivery and payment, but the seller has the right to demand the cash on delivery, and this right is not waived by delivery. One witness stated he has waited a week as a favor; another that he has known cases where there has been delay, but they are exceptions, that the rule is to pay cash on delivery, but he has [**3]  had to wait fourteen days; and another that some delay is incident to delivery and payment, and that he has known twenty days to elapse.

The plaintiffs also offered testimony to show that it is a general custom among merchants in Baltimore, that where two or more lots of grain are consigned to different commission merchants in the same vessel, the one to whom the largest lot is consigned sells the whole, has no dealings with the consignors of the smaller lots, but sells the same at the risk of the merchant to whom it is consigned, and accounts to him for the full amount of sales, and receives no commissions. Some of the witnesses state that there are exceptions to this custom; others, that it is not exactly fixed, but is allowed as a matter of courtesy and dispatch; others, that there is no such general, uniform and fixed custom, though sales are sometimes permitted to be made by the larger consignees, as matters of courtesy.

The witnesses on the part of the plaintiffs also prove that at the time of this sale Ballard's credit was good, that he made purchases of large quantities of wheat from the plaintiffs and others, just prior to that date, all of which was lost by his [**4]  failure. The witnesses for the defendants proved that Ballard's credit was not good in October 1856, and had not been for some months before, and that they would not have trusted him.

On this evidence, the court, (LEE, J.,) after rejecting the prayers offered on both sides, instructed the jury, that if they find the facts offered in evidence, and shall, from all the evidence in this cause, find that the plaintiffs sold the wheat in question, in good faith, and exercised, in all respects such diligence and caution in said sale and in collecting the proceeds thereof, as a prudent merchant or agent should exercise; and shall further find that the usage spoken of by the witnesses, as to sales by one consignee for and on behalf of another consignee, was known to the defendants at the time, and that the plaintiffs, under such a sale, (so known to the defendants,) acted as their agents in the sale of this wheat, with the knowledge or consent of the defendants, and that the commissions for the sale of the same were received by the defendants, then the plaintiffs are entitled to recover. To the granting of this instruction the defendants excepted, and the verdict and judgment being against [**5]  them appealed.  

DISPOSITION:
Judgment reversed and no procedendo.  

HEADNOTES:

The plaintiff, the consignee of the larger parcel in a mixed cargo of wheat, sold the whole on the 13th, and settled with the defendant, the consignee of the smaller parcel, on the 18th of October, though he had not then received the money from the purchaser. The name of the purchaser was not disclosed to the defendant until the 24th or 25th of the same month, when the plaintiff demanded of the defendant a return of the money, stating that the purchaser had failed and an unsuccessful attempt had been made to attach the wheat in New York. It was proved that sales of grain in Baltimore are made for cash on delivery, though the money is not always paid at the time, some delay being incident to delivery, but still that the delivery does not bar the right to demand cash. HELD:

That the plaintiff was not entitled to recover, because he had not exercised proper care and diligence in collecting the proceeds of sale.

Whether due diligence has been observed is a question to be decided by the court on facts to be found by the jury, and a prayer which leaves it to the jury to find whether due diligence has been observed, is erroneous.  

COUNSEL:
John P. Poe, for the appellants:

The instruction granted by the court below was clearly erroneous, because it withheld from the jury the consideration of every question in the case, except that of good faith and due diligence on the part of the plaintiffs in the sale of the wheat and the collection of the proceeds. Such an instruction it is not competent for the court, unasked, to give. We deny that the court has a right to volunteer its instructions to the jury upon any thing but the whole case, or at least the points raised by counsel, and a volunteer instruction will be held vicious, unless it appears by it, "full and substantial justice has been done to the party and the law of the case has been accurately declared, and in terms explicit and intelligible to the jury upon the points raised by counsel." 6 G. & J., 404, Hall vs. Hall. 2 Md. Rep., 63, Keener vs. Harrod & Brooke. 5 Md. Rep., 121, Coates & Glenn vs. Sangston. 7 Gill, 233, Beall vs. Beall. Were then the questions excluded from the jury by this voluntary instruction of the court, material to a proper decision of the case? Those questions were:

1st. Whether [**6]  the plaintiffs had been guilty of any default in not apprising the defendants of the name of the purchaser or of his failure?

2nd. Whether the payment, by the plaintiffs to the defendants, was an absolute payment by which, in law, they became responsible for the debt?

3rd. Whether the demand for the refunding of the amount paid was not too late, the defendants having already applied it according to the directions of their principal?

1st. The plaintiffs' case is based entirely upon a custom alleged to exist in the city of Baltimore, that the consignee of the larger portion of a cargo shall sell the whole, and account with the consignee of the smaller for his share. The existence of such a custom as the law requires--a custom, general, fixed, uniform--is clearly not proved in this case, most of the witnesses stating that sales in such cases were allowed rather as matters of courtesy than of right sanctioned by long usage. But conceding that the jury, by their verdict, found that the custom was known to the parties, and, in fact, entered into this transaction, yet, inasmuch, as it is a usage unwise, contrary to sound policy, and even dangerous, it ought to be confined within [**7]  as narrow a compass as possible --it ought to be strictly followed. In this case it was deviated from. The name of the purchaser was not disclosed though the plaintiffs' own witnesses prove that such was the usual practice. They were, therefore, in default, the consequences of which were fatal; for it is hazarding nothing to say that had the defendants known that Ballard was the purchaser, their grain would not have been delivered to him and the loss would not have occurred. It was clear error, therefore, for the court to exclude this material question from the jury.

2nd. Was the payment to the defendants an absolute payment? That the plaintiffs at first intended it as such is manifest. The remark of Harding at the time he gave the money to Ewalt, the failure to disclose the name of the purchaser, though it was the practice to disclose his name, and their attempts to recover the wheat by attachment in New York, abundantly prove it. But independently of this, the law in such cases is too well settled to be successfully controverted. It is universally held that where, after the sale, the factor, without mentioning to whom he has sold, or what security he has taken, remits a promissory [**8]  note, or bill of exchange, (a fortiori when he pays the cash,) for the net proceeds, this naturally seems to close the transaction and completely lulls the suspicion of the principal. He has the best ground for supposing that the factor had actually been paid, or is content to take upon himself the responsibility of the purchase. It is an assumption of the debt by the factor, and the payment having been voluntary with a full knowledge of all the facts, he is precluded from recovering it. 3 Camp., 291, Simpson vs. Swan. 2 Camp., 546, Jameson vs. Swainstone. 5 Taunt., 749, Le Fevre vs. Lloyd. Story on Cont., sec. 366. Story on Agency, sec. 342. Dunlap's Paley's Agency, 43. 3 Johns. Ch. Rep., 600, Consequa vs. Fanning. 4 Cowen, 250, Oakley vs. Crenshaw. 4 Rawle, 223, Harvey vs. Turner. 4 Zabrisbie, 96, Steward vs. Scudder. 24 Verm., 611, Jackson vs. Bissonette. Whether it be, therefore, a conclusion of law, that a payment under such circumstances as are disclosed by the record in this case, is absolute, or whether the nature of the payment is a question of intention to be decided by the jury upon the whole evidence, the instruction of the court withholding this question from the jury [**9]  is clearly vicious and ought to be corrected.

3rd. Was the demand to refund in season? Conceding, for the sake of the argument, that money paid, as that sought to be recovered in this case, could be recovered whilst in the hands of the party receiving it, the further inquiry presents itself, at the time of the demand was it in the power of the defendants to return it, or had they applied it according to the instructions of their principal? If they had, there is an end of the case; for the parties could not then be restored to their original rights. 4 Sandford, 366, Martin vs. McCormick. 14 Georgia, 89, McDonald vs. Napier. 1 Wend., 173, Mowatt vs. McClelan. 7 Cowen, 460, La Farge vs. Kneeland. That they had done so appears by every reasonable view of the evidence; but whether they had or not, surely a proposition of so important and conclusive a character ought to have been submitted to the jury. If the evidence was conflicting they alone had the right to pass upon it; if uncontradicted, even the court could not assume any fact as proved, for the jury are the sole judges of the credibility of witnesses. The principle which would throw the loss in this case upon the plaintiffs,  [**10]  and not the defendants, if the money had actually been applied by the defendants before the demand to refund, is the familiar one, that where one of two innocent parties must suffer, he ought to suffer through whose negligence, default or instrumentality the loss was occasioned. Story on Agency, secs. 320, 321. 1 Parson's on Cont., 56, 57. Here the plaintiffs, by their voluntary and deliberate act, induce the defendants to pay over to their principal the amount due him, and thus put it out of their power to call upon their principal for repayment. In other words, the defendants are placed in a more unfavorable attitude than the plaintiffs, by the plaintiffs' own act. 4 Zabrisbie, 96, Steward vs. Scudder. The defendants could certainly not recover from their principal, for they had remitted to him the proceeds of his wheat and closed the transaction; nor could they successfully resist an action by him against them for the proceeds of the wheat on the ground of their not having received the money, even if they had not actually paid them over, for they had credited him on their books, sent him an account of sales, which he had received and acted upon, and they would be estopped from denying [**11]  that they had received the purchase money. 3 Camp., 291, Simpson vs. Swan, and other authorities under the second point.

4th. But conceding the court had a right to shut out these three questions from the jury, on the ground of their immateriality, yet still the instruction, as given, is itself vicious, because it submits to the jury the question of due diligence, which in this case is a question not of fact but of law. 6 Md. Rep., 37, Foley & Woodside vs. Mason. 7 Gill, 231, Bell vs. Hagerstown Bank. 6 G. & J., 291, Steam Nav. Co. vs. Hungerford. 4 Zabrisbrie, 96, Steward vs. Scudder.

The instruction of the court, and its refusal to grant the defendants' prayers, appears to be clearly erroneous for the reasons heretofore assigned, and should be reversed; and as it must be quite manifest that the jury were induced by that instruction to render a verdict which violates every principle of equity, and that upon the admitted facts, without reference to those controverted, the plaintiffs have no just claim to recover, the ends of justice will be furthered by a refusal to send the case back under a procedendo.

Wm. S. Waters, for the appellees:

The main question in the [**12]  case is the propriety of the instruction granted by the court. The bona fides and proper diligence of the appellees, the existence of the custom, and the knowledge of it by the appellants, the due conformity to it by the appellees, the agency of the appellees according to the custom, and their acting with the knowledge and consent of the appellants, and without compensation, are all expressly submitted by the instruction to the jury. All other facts stated in the bill of exceptions, by the general terms of the instruction, were submitted to the jury. The question is, then, whether, upon these facts, the plaintiffs were in law entitled to recover? The facts having all been found by the jury, the question is a legal one. 3 G. & J., 450, Bosley vs. Ches. Ins. Co. In this case, the appellants were the principals of the appellees, and the ordinary duties and responsibilities existing between principal and agent subsisted between them, and were not modified by the fact that the appellants had another principal. Dunlap's Paley's Agency, 49, and notes. 6 Taunt., 147, Schmaling vs. Thomlinson. A payment, by agent to principal, of money on account of goods sold by virtue of that relation, before [**13]  the money for the sale is collected, is prima facie, an advance, and can be recovered back, if the buyer of the goods fails before payment. 4 Metcalf, 576, Hapgood, et al., vs. Batcheller, et al. 1 Rawle, 126, Elliott vs. Walker. 1 Amer. Lead. Cases, 483. 5 H. & J., 306, Ferris vs. Walsh. The exceptions are:

1st. When the agent makes the debt his own by depriving the principal of all legal remedy for its recovery. 1 Amer. Lead. Cases, 480.

2nd. When the agent represents to the principal (by means of rendering him an account, paying the balance over, or otherwise) that the debt has been collected, and by that means lulls the suspicion of the principal, and prevents him from taking active measures to secure himself, and damage has accrued thereby.

Both these exceptions are sometimes based upon the consideration of an assumption of the debt by the agent. 4 Cowen, 252, Oakley vs. Crenshaw. 5 Cowen, 473, Robertson vs. Livingston. 1 Amer. Lead. Cases, 481, 482. The last exception, however, is more frequently based upon the consideration, that it would be unjust to receive a payment under such circumstances as an advance. The injustice consists in the false impression made [**14]  upon the principal. No such impression could, however, be made in this case, as the principal was distinctly informed that the money had not been collected. 5 Taunt., 749, Le Fevre vs. Lloyd. 7 Taunt., 159, Goupy vs. Harden. 4 Barn. & Cress., 715, Shaw vs. Picton. 1 Rawle, 126, Elliott vs. Walker. 2 Camp., 546, Jameson vs. Swanistone. 1 Amer. Lead. Cases, 481. 4 Metcalf, 576, Hapgood, et al., vs. Batcheller, et al. Conceding that the appellants had been falsely impressed by the conduct of the appellees, there is no proof that in this case any damage had accrued to them before this demand for the return of the money. 7 H. & J., 36, Davis vs. Davis. 1 Gill, 142, Whiteford vs. Burckmyer & Adams. The appellees were voluntary agents, and the jury have found that they discharged all the duties incumbent upon them by that relation. 1 Parsons on Cont., 372. There was no consideration for the assumption of the debt due by Ballard. 4 Metcalf, 576, Hapgood, et al., vs. Batcheller, et al. It is incumbent upon the principal to indemnify the agent for all loss, more especially a voluntary agent who has done his duty. 1 Rawle, 126, Elliott vs. Walker.  

JUDGES:
The cause was argued before ECCLESTON, TUCK [**15]  and BARTOL, J.  

OPINIONBY:
TUCK 

OPINION:

 [*169]  TUCK, J., delivered the opinion of this court.
In deciding the present appeal, we need not pronounce upon the custom in Baltimore, which, it is said, entitles the consignee of the larger parcel of grain, in a mixed cargo, to sell the whole, and account to the consignees of the smaller lots for the purchase money of their consignments, because, as we think, the merits of the controversy depend on a question not affected by such alleged custom.
It appears that the plaintiffs below, sold the grain, on the 13th of October 1856, to one Ballard, who was not known to the defendants, as the purchaser, and that they settled with them on the 18th, although the money had not been received. On the 24th or 25th of the month, one of the plaintiffs called on the defendants, and demanded a return of the money, stating that Ballard had failed, and that an unsuccessful attempt had been made to attach the wheat in New York. This appears to have been the first information the defendants had of the name of the purchaser.
It is contended, on the part of the appellees, that they acted as agents of the appellants, and that having settled with them before the purchase [**16]  money for the wheat had been collected from Ballard, that payment was an advance, which may be recovered back on failure of the vendee. But in this, as in other cases, the agent must act bona fide, and with due care and diligence, and if the record shows that such was not the case, it would be unjust to cast the loss on the appellants.

 [*170]  We may here remark that we are dealing with a case between commission merchants, and not with rights and duties, as between commission merchants and their principals.
The proof shows that sales of grain in Baltimore are made for cash on delivery, but that the money is not always paid at the time, some delay being incident to delivery; but still the delivery does not bar the right to demand cash. One witness stated he had waited for the money as long as a week, as a favor; another had known twenty days to elapse. These appear to have been special cases. Here the appellants did not disclose the name of the purchaser until after the grain had been carried away, and all prospect of recovery gone. Instead of taking the cash, they waited from the 13th until after the 18th, because we find them pursuing the wheat to New York, between the 18th [**17]  and 24th, without success. If this be deemed proper care and diligence, we are at a loss to imagine what would be considered negligence. There was consequently no evidence from which the jury could find that these appellees "exercised, in all respects, such diligence and caution in said sale and in collecting the proceeds thereof, as a prudent merchant or agent should exercise."
But, apart from this, the court erred in submitting that question to the jury at all, it being well settled, that whether due diligence has been observed, is a question to be decided by the court, on facts to be found by the jury.  Boyer vs. Turner, 3 H. & J. 285. 6 G. & J., 291. 1 H. & J., 477. 6 G. & J., 63. The judgment must, therefore, be reversed, and, being of opinion that the plaintiffs are not entitled to recover, for want of diligence in collecting the proceeds of sale, a procedendo will not be ordered.
Judgment reversed and no procedendo. 

96 of 196 DOCUMENTS 

MATTHEW O'BRIEN, and others, vs. NORRIS, CALDWELL & CO.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 122; 1860 Md. LEXIS 54 

June 14, 1860, Decided 

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

Attachment on warrant, issued on the 30th of September 1854, by the appellants against Turner and Barker, their non-resident debtors, trading under the firm of I. N. Turner & Co., returnable on the second Monday of January following, and returned, "Attached as per schedule--goods sold under order of court." On the 15th of January 1855, during the same term, the appellees filed their claim to certain of the goods mentioned in the schedule annexed to the return, and to the proceeds thereof in the hands of the sheriff, and resisted condemnation of the same, by pleas that said goods, at the time the attachment was laid, were not the goods of the defendants in the attachment, but were the goods of the claimants. The case was tried upon issues joined on these pleas.

Exception. The plaintiffs proved the execution of the promissory note of I. N. Turner & Co. in their favor, on which their attachment was issued, dated March 14th, 1854, at six months, for $ 1140.65, and that Turner was in the habit of buying goods in Baltimore, that he resided in Virginia, where he traded under the name of I. N. Turner & Co., and had a partner there [**2]  by the name of Barker.

The claimants then proved that, on the 27th of September 1854, Turner bought of them, on six months' credit, certain groceries to the amount of $ 675.10; that, by Turner's direction, these goods were boxed and addressed to him at Columbiana, Fluvana county, in Virginia, and sent to the steamboat wharf in Baltimore, and put on board the steamer sailing thence to Richmond; that on the 30th of September 1854, the attachment in this case was issued, and also two others, out of the Common Pleas, against I. N. Turner & Co., at the suit of other parties, which attachments were levied on the goods on said boat, sold by the claimants, and other goods sold to Turner on the 27th of September 1854, by other merchants in Baltimore; that about the 1st of December 1854, on the application of the plaintiffs in all these attachments, all said goods were sold, by authority of the Common Pleas and Superior Court, acting under the provisions of the Act of 1839, ch. 39, and that the remaining proceeds, after satisfying the attachments from the Common Pleas, are now in the hands of the sheriff.

The claimants further proved that Turner, as a country merchant, was in Baltimore [**3]  about the 16th of March 1854, and made various purchases at that time on six months' credit; that he then bought of the plaintiffs to the amount of their note in proof, and of other parties, to the amount of $ 1145, the obligations for which all fell due about the 16th of September 1854, and were none of them paid, but were, in fact, all lying over when he made his purchases from the claimants, and the other Baltimore merchants, of the goods attached. They further proved, by Joseph C. Whitney, that at the time of the purchase of the goods from the claimants, Turner owed witness $ 90, which he had promised to pay in September, when he came down for his goods, and having gone to see him, at his hotel, he told witness he would see and pay him before he went, but he left the city without doing so, and witness sent his account to a lawyer for collection, who returned him word that it was worthless, and he has not yet obtained it; that on the 27th of September 1854, Turner owed other debts to a large amount, and all of his creditors were treated in the same way, and witness believed that Turner was notoriously insolvent and unable to meet his liabilities at the time he purchased the goods [**4]  from the claimants and up to the time of the laying of the attachment, and of the filing of the claim in this cause. The claimants then offered the following prayer:

If the jury shall find from the evidence in this case, that the articles of merchandise mentioned in the claim of the claimants were sold on the 27th of September 1854, by them to Isaac N. Turner, one of the defendants in the suit of the plaintiffs, on a credit of six months, and by the directions of said Turner, said merchandise was, by these claimants, packed and directed to said Turner, by his address being written thereon, and were, in pursuance of the instructions of said Turner, sent to a vessel lying at one of the wharfs of Baltimore city, to be transported and delivered to said Turner, at his place of business in Virginia, and that said merchandise was afterwards, with other property, seized by the sheriff, under the attachment in this case, on board of said vessel at said wharf, and that said property was sold by the sheriff, under the order of this court, and if the jury shall further find that at the time these claimants sold said goods to said Turner, he, the said Turner was insolvent, and that said insolvency [**5]  continued to the time of the attachment, then these claimants are entitled to a verdict.

The plaintiffs then offered a prayer, that in order to entitle the claimants to recover upon the issues in this cause between them and the plaintiffs, on the ground of their right, as vendors, to stop the goods in controversy, it is necessary that the jury should find that the insolvency of the vendee, Turner, occurred after the sale of said goods to him, and before the interposition of any claim to the same by the claimants.

The court (LEE, J.) granted the claimants' prayer, and rejected that of the plaintiffs, and the latter excepted to the granting of the prayer of the claimants, and the verdict and judgment being in favor of the claimants, the plaintiffs appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The right of stoppage in transitu, existing at the time of an attachment laid on the goods, is not defeated or impaired by the attachment, nor altered by the sale of the goods, by an order of court, under the Act of 1839, ch. 39.

Such order of sale is a mere interlocutory proceeding, the effect being simply to convert the goods into money, which remains in the hands of the sheriff, to await the determination of the attachment, subject to any claims that might have been asserted against the goods themselves.

The filing, by the vendors, of a claim in the attachment case, to the fund in court, being the proceeds of the goods sold under the court's order, is a sufficient exercise of the right of stoppage in transitu.

The right of stoppage in transitu is not defeated by showing that the vendee was actually insolvent at the time of the purchase, unless it be shown that such insolvency was known to the vendor, and that he contracted with such knowledge.

The validity of the right of stoppage in transitu depends entirely on the bankruptcy or insolvency of the vendee, but it is not necessary that it should be a technical insolvency -- if a stoppage of payment by the vendee be proved, it is sufficient.

If the insolvency of the vendee, at the time of the purchase, be known to the vendors, and they contract with that knowledge, they cannot assert the right; to entitle the vendors to the right, the insolvency of the vendee must come to their knowledge after the sale.

Where parties sell goods on a credit, the presumption of law, in absence of proof to the contrary, is, that they believed the purchaser to be solvent and able to pay for them.  

COUNSEL:
Wm. F. Frick, for the appellants, argued:

1st. That under the circumstances of the sale, by the appellees to Turner, the title to the goods vested in the latter. They sold to him unconditionally, and on credit, and marked and delivered the goods as directed. This passed the right of property and possession to the vendee, and they became his goods, subject only to the vendor's right (if subsequent [**6]  events should justify it) to stop them in transitu. This point was not disputed below and cannot be here. There was nothing of fraud or misrepresentation shown in the case, which could render the sale void ab initio, and there is nothing to support the claim of the appellees upon the ground that no title passed, by reason of the fraud, concealment, or misrepresentation of Turner. Chitty on Cont., 406. 1 Greenlf's Rep., 376, Cross vs. Peters. 2 Mason, 236, Conyers vs. Ennis. 9 G. 7 J., 244, Powell vs. Bradlee. 10 G. & J., 246, Harris vs. Alcock.

2nd. If then the claim can be supported, it must be on the ground of a right to stoppage in transitu. This does not proceed upon a right to rescind the contract and revest the title in the seller. It is only a continuation and enlargement of the seller's ordinary lien, and must be exercised strictly within prescribed limits. And whatever uncertainty and indefiniteness may be found in the early cases in the description of this somewhat anomalous right it is now well settled: 1st. That the insolvency of the vendee, which creates the right of stoppage in transitu, must not be a general inability to pay debts, but either a technical insolvency,  [**7]  or an insolvency evidenced by some overt act, as stoppage of payment, absconding, &c. 1 Parsons on Cont., 476, and notes. 1 Smith's Lead. Cases, 903. 2nd. That the right does not exist by reason of such insolvency before the sale, but that the insolvency, as described, must arise, or occur, after the sale and before the transitus is at an end. In other words, if before the sale there has been some overt act of insolvency by the buyer, the discovery of the fact subsequently by the seller does not give him the right to stop in transitu. He is in such case without remedy, so far as the technical right of stoppage in transitu is concerned, and must take the consequences of his want of prudence in making a sale and inchoate delivery without proper previous inquiries. It is not worth while to argue that the reason would seem to be as good, why a seller should have the right to stop in transitu in case of insolvency prior to the sale which he did not discover till afterwards, as in a case where the insolvency occurred afterwards, and was then discovered. The answer is simply, the right is an anomalous one, and confined in its exercise within narrow limits, and it does not extend so far. We [**8]  might as well argue that there is no good reason why they should be limited to the transitus. Good morals and fair dealing would seem to require that the right should reach even into the hands of the buyer until he has bona fide parted with the goods. But, as before, the answer is simply the right has not been adjudged to extend so far. The court are respectfully referred to the learned and able decision of Storrs, J., in delivering the opinion of the court, in Rogers vs. Thomas, 20, Conn., 53, which is quoted with approbation in 1 Parsons on Cont., 478, and note (o) and which, unless overruled, is conclusive of this case.

3rd. Even supposing the claimants had a right to stop in transitu, they have never properly exercised it. The filing of their claim in court does not assert the right--it sets up a claim of title. It may reasonably be questioned whether they ought not to have given notice of stoppage to the sheriff before the goods were sold, and passed out of his possession. But even if such sale did not defeat the right there should have been notice to the sheriff as custodian of the goods and the proceeds of their sale, and then a motion to quash the attachment. That was [**9]  the regular and proper course. In filing their claim as they did, and making issues on which the jury were sworn, they put the case on the ground that they were the owners of the goods at the time of the attachment laid, and they could only meet that issue by proof that no title passed, or that it revested. But the right to stop does not rescind the sale; it leaves the right of property in the vendee, and the right of possession only in the vendor by way of lien. 1 Parsons on Cont., 477 to 481, and notes. 6 G. & J., 301, Ranahan vs. O'Neale.

4th. The court's instruction, as granted, is obviously defective. It proceeds on this theory: That if the jury should find that the claimants, on the 27th of September 1854, sold goods to Turner on a credit of six months, and packed, and directed, and delivered them at the Richmond boat, as directed by Turner, and that on the 30th of September 1854, these goods were attached by the creditors of Turner and sold by the sheriff, then the claimants were entitled to the proceeds of these goods, provided, at the time of the sale, Turner was insolvent, and his insolvency continued till the attachment. On what conceivable principle of law could such [**10]  an instruction be justified? It is impossible to say whether it proceeds upon the ground of fraud in the sale, or of the vendor's right to stop in transitu. If, on the former, it ignores the essential questions, as to the intention of the vendee and knowledge of the vendor. If on the latter, it throws out of view altogether the vital question whether the right of stoppage was ever exercised, and how and when? 9 G. & J., 244, Powell vs. Bradlee. Even supposing, that upon all the facts, if the jury believed them to be true, the claimants were entitled to a verdict, still this instruction, as given, did not meet the case fairly, or cover it sufficiently.

Milton Whitney and Jno. L. Thomas for the appellees.

Only one point appears upon the record, as having been before the court below, and is raised by the prayer of the appellants. The question is, should the jury have been instructed that it was necessary for them to find that the insolvency occurred after the sale of the goods? We insist they should not have been so instructed, that the ruling of the court was right, and any other would be antagonistic to those principles of law upon which the doctrine of stoppage in transitu [**11]  is founded. This doctrine is founded on principles of natural justice and equity; it is a creature of a court of chancery and the law lends its aid to carry out this enlarged rule of equity. Abbott on Shipping, (7th Amer. Ed.,) 650, 654, 656. 2 Kent, 540, 541.

The claimants here were vendors of the goods, and, therefore, the parties entitled to exercise this right, and the goods were in a position to be stopped in transitu, as they had not been actually delivered to the vendee, nor had they arrived at their place of destination. 2 Kent, (5th Ed.,) 545. The vendors in this case have exercised that right; no particular form is necessary; it is not necessary that the vendors should actually obtain possession. 2 Kent, 542. Abbott on Shipping, 666. Chitty on Cont., (6th Amer. Ed.,) 463. They took the only course left them to assert this claim. The attachment authorized the sheriff to take the goods of Turner and Barker, and he took not only their goods but these sold by these claimants. They were in the custody of the court, and the claimants had a right, and it was their duty, to come into court and make their claim, and there assert it. 10 Md. Rep., 14, Trieber vs. Blocher. 6 G.  [**12]  & J., 298, Ranahan vs. O'Neale. The attachment does not defeat the right of the vendor to his stoppage in transitu. Abbott on Shipping, 663. 1 Camp., 282, Smith vs. Goss. Chitty on Cont., 436. 8 Pick., 198, Naylor vs. Dennie. 15 Wend., 137, Buckley vs. Furniss. 14 Penn. State Rep., 48, 53, Hays & Black vs. Mouille & Co. 17 Wend., 504, Buckley vs. Furniss.

The attachment not defeating the vendors' right of stoppage in transitu, they resorted to the only method known to the laws of Maryland to assert that right, and a sale of the goods as perishable articles, under the Act of 1839, cannot be so construed as to alter or affect the rights of parties, or change their relations; they were to stand the same as before; the proceeds are made to represent the property, and the Act was passed to protect the parties in interest from loss on perishable articles, not to affect or change their rights.

The jury found that the party was insolvent at the time he purchased the goods, and so continued up to the time the vendors asserted their claim to stoppage in transitu. It is impossible to tell the precise time at which any man becomes insolvent. The party was insolvent at the time he made [**13]  the purchase, the knowledge of which came to the vendors after the sale and before actual delivery. And if an insolvency occurring after the sale and before the delivery, vests this right in the vendor, how much stronger upon every rule of justice and equity, upon which this rule is founded, would be the reason of such a right where the actual insolvency existed at the time of sale? 15 Wend., 137, 143, Buckley vs. Furniss. 14 Penn. State Rep., 51, Hays & Black vs. Mouille & Co. 1 East., 523, Inglis, et al., vs. Usherwood. 1 Holt's N. P. Cases, 338, Litt. vs. Cowley. 2 Man. & Granger, 812, Wilmshurst vs. Bowker.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*129]  BARTOL, J., delivered the opinion of this court:
The fund in controversy is the proceeds arising from the sale of certain goods, taken under an attachment, at the suit of the appellants against Isaac N. Turner, their non-resident debtor. To this fund, the appellees filed their claim, upon the ground that, as vendors of the goods to Turner, they had the right to stop them in transitu.
If the right of stoppage in transitu existed in the appellees, at the time the attachment [**14]  was laid, and when their claim was filed; then, in the judgment of this court, their right could not be defeated or impaired by the attachment. Smith vs. Goss, 1 Camp. 282. Naylor, et al., vs. Dennie, 8 Pick. 199. Buckley vs. Furniss, 15 Wend. 137, 144, 

 [*130]  Butler vs. Woolcot, 2 N. R., 64. Nicholls vs. Lefeuvre, 2 Bing., N. C. 83. Hays & Black vs. Mouille & Co., 14 Pa. 48.
Nor could the rights of the parties be altered by the sale of the goods, under the court's order. That order was a mere interlocutory proceeding, passed under the Act of 1839, ch. 39, the effect of which was to convert the goods into money, which remained in the hands of the sheriff, to await the determination of the attachment, subject to any claims that might have been asserted against the goods themselves. There is no force in the objection made by the appellants, that the right of stoppage, even if it existed in this case, has never been exercised. "It is not requisite," (says Kent, vol. 2, page 543 marg.,) "that he (the vendor) should obtain actual possession of the goods before they come [**15]  to the hands of the vendee, nor is there any specific form requisite for the stoppage of goods in transitu; thought it is well settled that the bankruptcy of the buyer is not, of itself, tantamount to a stoppage in transitu. But a demand of the goods of the carrier, or notice to him to stop the goods, or an assertion of the vendor's right by an entry of the goods at the custom house, or a claim and endeavor to get possession, is equivalent to an actual stoppage of the goods." See Northey & Lewis vs. Field, 2 Esp. Rep. 613, and the other authorities referred to in Note (a.) 2 Kent 543 marg.
Being of the opinion that the filing of the claim to the fund in court, by the appellees in this case, was a sufficient exercise of the right of stoppage in transitu, if such a right existed, it remains only to examine whether, under the facts and circumstances enumerated in the appellees' prayer, they were entitled to exercise such right.
The right of stoppage in transitu is thus defined by Chancellor Kent, vol. 2, page 540 marg.
"It is the right which the vendor, when he sells goods on a credit to another, has, of resuming the possession [**16]  of the goods while they are in the hands of a carrier or middleman, in their transit to the consignee or vendee, and before they arrive into his actual possession, or at the destination which 

 [*131]  he has appointed for them, on his becoming bankrupt or insolvent."
The same author says, (page 542, marg.): "The right came from courts of equity, and was first established in Wiseman vs. Vendeputt, 2 Vern. Rep. 203, and its apparent equity recommended the adoption of it in the courts of law, as a legal right. It would be very unreasonable to allow the goods of the vendor to be appropriated to the payment of the creditors of the vendee, who fails before payment, and before the goods have actually reached him."
This right is now firmly established in the law, and is greatly favored by the courts, as "tending to the furtherance of justice." 7 Term Rep. 445. 1 East., 515. There are, however, certain prescribed limits to the right, and the question here is, whether the facts and circumstances of this case, as they are enumerated in the court's instruction, and found by the jury, were sufficient to authorize the appellees to exercise the right?  [**17]  On this question, the particular objection of the appellants is directed against that part of the court's instruction which relates to the insolvency of Turner, the vendee. The jury were directed, if they should find "that at the time said Norris, Caldwell & Co. sold said goods to said Isaac N. Turner, he, the said Turner, was insolvent, and that said insolvency continued to the time of the attachment," then, if they found the other facts stated in the prayer, the claimants were entitled to recover.
It has been contended that this instruction was erroneous; because it is said, "the right of stoppage in transitu exists only when the insolvency has arisen or occurred after the sale, and does not exist where the vendee was insolvent at the time of the sale." In support of this view, the appellants' counsel has referred to the case of Rogers, et al., vs. Thomas, 20 Conn. 53.
With the greatest respect for the learning and ability of the court which pronounced the judgment in Rogers vs. Thomas, we are compelled to dissent from the reasoning upon which it was founded; and are of opinion that the weight of reason 

 [*132]  and authority is with Mr.  [**18]   Justice Waite, who delivered the dissenting opinion in that case.
A careful examination of the authorities has brought us to the conclusion, that the right of the vendor to stop goods in transitu, cannot be defeated by showing that the vendee was actually insolvent at the time of the purchase; unless it be shown that such insolvency was known to the vendor, and he contracted with such knowledge. See the opinion of Waite, Justice, on this point, 20 Conn., 68, et seq., and the authorities cited by him.
"The validity of the right depends entirely on the bankruptcy or insolvency of the vendee." 2 Kent 543. 6 Rob. Adm. Rep. 321, the case of The Constantia. In the case before us, there was sufficient evidence to authorize the jury to find the insolvency of Turner (the vendee) at the time of the attachment, and of the claim made by the appellees. It is not necessary that it should be a technical insolvency; if a stoppage of payment by the vendee be proved, it is sufficient. Smith's Mer. Law, 678, 3rd Am. Ed., note (a.)
If the insolvency of Turner, at the time of the purchase, was known to the appellees, and they contracted [**19]  with that knowledge, such insolvency would not entitle them to rescind or vary their contract, or reclaim the possession of the goods. Buckley vs. Furniss, 15 Wend. 142, 143. This court is all of opinion that, to entitle the appellees to recover, the insolvency of Turner must have come to their knowledge after the sale. This point was not distinctly put to the jury in the instructions granted. But, in the opinion of a majority of this court, there was no evidence legally tending to prove any such knowledge on the part of Norris, Caldwell & Co. at the time of the sale, and therefore it was unnecessary to call upon the jury to pass on that question. The presumption, both of reason and of law, in the absence of proof to the contrary, is, that when they sold the goods, on a credit, they believed the purchaser to be solvent, and able to pay for them. Inglis, et al., vs. Usherwood, 1 East., 524. In the record before us, there is no evidence sufficient in law to rebut that presumption. Believing there was no error in the instruction given to the jury, the judgment will be affirmed.

 [*133]  The bill of exceptions presents no questions, except upon the instruction [**20]  granted by the court; no exception was taken to the refusal of the court to grant the appellants' prayer; the point involved in it has, however, been necessarily decided in passing upon the instruction granted.
Judgment affirmed. 

97 of 196 DOCUMENTS 

JOHN C. BRIDGES and ALEX. P. WOODS, vs. MOSES G. HINDES and JOHN F. DAVIS, Garnishees of STEPHEN GEORGE, Jr.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 101; 1860 Md. LEXIS 51 

June 13, 1860, Decided 

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

Attachment on judgment issued on the 16th of Feb. 1855, by the appellants against George, and laid in the hands of Hindes and Davis, as garnishees, who appeared and pleaded nulla bona.

Exception. The judgment was admitted, and the funds attached were in the hands of the garnishees, under two deeds from George to them, dated the 2nd and 5th of August 1854.

By the first deed, the grantor, George, conveys to Hindes and Davis, "their executors, administrators and assigns, all and singular the goods, wares, merchandise, chattels, effects and property of every kind and description, of or belonging to the said" grantor, "and the avails and proceeds of the sales of the same and every or any part thereof, and also all debts and sums of money due, owing or payable to the said" grantor, "and all bonds, bills, notes, books of account, evidences and vouchers touching or concerning the same," in trust, to sell and collect the same, and to apply the proceeds to pay expenses and commissions, and certain specified debts in full, and then "to the payment, satisfaction and discharge of the just claims of all other creditors of the said Stephen [**2]  George, Jr., that is to say, ratably and proportionably if the fund be insufficient to discharge the whole, or to the payment in full of all such claims, if the funds be sufficient for that purpose, to all those who will, within three months, sign a good and sufficient release to the said Stephen George, Jr., and the balance or surplus, if any may remain, to pay over to the said Stephen George, Jr., or his legal representatives."

By the second deed, the grantor conveys to the same trustees, "their executors, administrators and assigns, all and singular, the goods, wares, merchandise, chattels, effects, rights, and credits of every kind and description, and wheresover situate and being, of or belonging to the said Stephen George, Jr., and all debts and sums of money, due, owing and payable to him the said Stephen George, Jr., and all books of accounts, bonds, bills, and choses in action, evidences and vouchers touching or concerning the same, and all estate and interest, use, trust, claim and demand whatsoever of the said Stephen George, Jr., in, unto and out of all the said property and premises." The trusts are the same as in the former deed, except that the balance, if any,  [**3]  that may remain after paying the releasing creditors, is to be applied "to the payment, ratably and equally, according to their respective amounts and legal priorities, of all the creditors of the said Stephen George, Jr."

The court (LEE, J.) rejected four prayers on the part of the plaintiffs, to the effect that these deeds were void as against them, and that they were entitled to recover. To this ruling the plaintiffs excepted, and the verdict and judgment being against them, appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

A deed of trust for the benefit of creditors, which devotes the funds to pay in full, if sufficient, and ratably, if insufficient, all the creditors of the grantor who shall execute releases, and the balance, if any, to be paid over to the grantor, is void, because of the reservation in favor of the grantor.

A deed of trust for the benefit of creditors, conveying "all and singular the goods, wares, merchandise, chattles, effects, rights and credits of every kind and description" belonging to the grantor, "and all debts and sums of money due, owing and payable to him, and all books of accounts, bonds, bills and choses in action, evidences or vouchers touching or concerning the same, and all estate and interest, use, trust, claim and demand whatsoever of" the grantor "in, unto and out of all the said property and premises," is void, because it does not convey all the property and estate of the grantor.

Deeds of trust for the benefit of creditors, when defective, are void in law and inoperative, and the property remains in the grantor; if such a deed is void on its face, it cannot be made good by matter subsequent.  

COUNSEL:
Geo. W. Dobbin for the appellants:

The first deed is void absolutely as against the Statute of Eliz., and not capable of confirmation, because it reserves the surplus to the grantor after paying the releasing creditors to the exclusion of those who do not release. 7 Gill, 481, Albert & wife vs. Winn & Ross. 3 G. & J., 308, Blessing vs. House. 3 Md. Rep., 41, Sangston vs. Gaither. The second deed is also void, because it is not sufficient in terms to convey a fee-simple or other estate of inheritance, its language being such as is only applicable to personal estate, and because it does not convey all the property, real and personal of the grantor.  [**4]  14 Md. Rep., 28, Barnitz vs. Rice. 8 Md. Rep., 418, Malcolm vs. Hodges. 3 Md. Rep., 35, Green vs. Trieber. Ibid., 41, Sangston vs. Gaither. 2 Maule & Selw., 448, Hick vs. Dring. 15 Mees. & Wels., 450, Haw vs. Earles. Litt. Tenures, sec. 1. 2 H. & J., 235, Hollingsworth vs. McDonald. In order to defeat this attachment, the second deed must be good in itself. It can derive no aid from the first deed. You cannot take a void deed and add it to a void deed and make a good one out of them.

Thos. M. Lanahan and Chas. H. Pitts for the appellees:

The two deeds are to be construed together in reference to the amount of property conveyed to the trustees. If the language of the first reserves the surplus to the grantor after paying the releasing creditors, it is covered by the second, which devotes that surplus to the creditors generally. But it is a well established rule of construction in the interpretation of deeds that they are to be construed as strongly as possible against the grantor, and we hold that the language of the first of these deeds does not reserve the surplus, after payment of the preferred creditors, but devotes it to the general creditors. 3 H. & J., 334, Buchanan [**5]  vs. Steuart. 15 Johns., 571, Murray vs. Riggs. In Malcolm vs. Hodges, 8 Md. Rep., 418, this court declared that language more vague than that used in these conveyances, operated as a transfer of all the grantor's property. An assignment or conveyance of an interest in trust will carry a fee without words of limitation. 9 Gill, 261, Spessard, et al., vs. Rohrer, et al. 4 Kent, 304, 354.  

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

OPINIONBY:
TUCK 

OPINION:

 [*104]  TUCK, J., delivered the opinion of this court:
The appellants recovered a judgment at law against Stephen George, Jr., and sued out an attachment, which was laid in the hands of the appellees, to whom George, the defendant in the judgment, had executed two conveyances for the benefit of his creditors, one of them dated the 2nd of August 1854, and the other on the 5th of the same month. The judgment of the court below having been rendered against the plaintiffs in the attachment, they have appealed, and now contend that the first of these deeds is void because of a reservation to the grantor, and that the second is also void because it does not convey all the property and estate of the debtor.
We take it [**6]  to be very clear, on the words of the deed of the 2nd of August, that it contains a reservation for the benefit of the grantor. If the funds of the trust prove sufficient all the creditors will be paid, but what will be their predicament if they prove inadequate, and some of the creditors will not release? In that event, the latter will take nothing under the deed, for the proportions that they might receive, if they assented, are reserved to the grantor, and not devoted to the creditors. The deed appears to have been made for the benefit of releasing creditors only. It provides for that which was declared to be illegal in Malcolm vs. Hodges, 8 Md. 418, as an implication from the terms of the instrument. There nothing was said of the surplus, and because it resulted to the grantor, the deed was set aside; here it is expressly given to the grantor. There is no difference in principle between the cases in this respect.
The deed being inoperative the property remained in the grantor for the benefit of his creditors, and on the 5th of August another was executed. It is supposed that this conveys all the debtor's property, within the meaning of the decisions of this [**7]  court, (see Barnitz vs. Rice, 14 Md. 24, and cases cited,) but we think the point cannot be sustained. The enumeration is of chattels and other personal property, and all "estate and interest, &c., of the said George, in, unto 

 [*105]  and out of all the said property and premises," thus referring the word estate to the previously described property. In this respect the deed differs from that in Malcolm vs. Hodges, where the recital declared the purpose of the grantors to convey all their estate and effects for the benefit of their creditors, and afterwards did convey all their stock &c., &c., and "all and singular the estate and effects of the grantor, of whatsoever consisting." See, also, Farquharson vs. Eichelberger, 15 Md. 63.
It is contended that the deeds are to be considered as one instrument, and that, so taken, they do comply with the legal requirements. It is the doctrine in this State that trust deeds of this kind, when defective, are void in law. If void on their face, how can they be made good by matter subsequent? If the last deed had conveyed all George's property, the attachment would have failed;  [**8]  not, however, because of any aid it would have afforded the first deed, but, because the first being void as against creditors, all the property reverted, or rather remained in the grantor, subject to his disposal for the benefit of his creditors, and was operated on by the second deed. Here the last conveyance affects only such of the property as it professes to convey--as to the rest it is wholly inoperative, and the entire deed is void.
As the prayers of the plaintiffs relate only to these questions, the rulings of the court below are reversed, as to all of them.
Judgment reversed and procedendo ordered. 

98 of 196 DOCUMENTS 

JOHN H. THOMAS vs. JOHN C. TURNER and CHAS. F. YARDLEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 105; 1860 Md. LEXIS 52 

June 13, 1860, Decided 

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

Scire facias under the Mechanics' Lien Laws, sued out by the appellees on the 23rd of December 1854, to enforce a claim of $ 690.10, filed on the 22nd of December 1854, against two houses and lots on McCullough street, in the city of Baltimore, for lumber furnished at different periods, between the 10th of May and the 9th of November 1854, for the construction of the houses, to Jacob F. Kridler, as the architect, builder and owner, or reputed owner thereof. But one claim was filed, and one writ of scire facias issued, against the two, the writ, however, specifying the amount claimed on each house. On the return of the writ, the appellant appeared, claiming to be owner of one of the houses, and pleaded that the sum claimed was not due, that Kridler was not the owner, nor the agent of the owner, of the building or lot at the time the materials were furnished, or when the lien claim was filed or the writ issued, that the contract for furnishing the materials was made with an architect, builder and other person than the owner, and the plaintiffs did not give notice of their intention to claim the benefit of the lien as required in such [**2]  case by the Act of Assembly, and that no sufficient claim of lien was made and filed within the time required by law. The case was tried upon issues joined on these pleas.

Exception. It was proved, among other matters, that, on the 18th of Sept. 1854, Kridler gave to the plaintiffs his note for $ 824.57, at four months, in settlement of his account with them, and embracing all the items in the lien claim up to the date of the note; that for several years prior to the time set forth in the lien account, he had been dealing largely with the plaintiffs, and was in high credit with them, and they would have furnished him without security, on his personal credit, any reasonable quantity of lumber, and had, in fact, loaned him money from time to time without security; that he had been for a number of years one of the largest builders in the city of Baltimore, and had built most of the houses in that part of the city where the one in controversy is situated; that he enjoyed excellent credit down to the close of November 1854, when he absconded to parts unknown, having previously committed several forgeries upon persons in the city of Baltimore; and that it was the customary mode of dealing [**3]  and settlement between the plaintiffs and Kridler, for the latter to give them his note at four months, at the beginning of January and July in each year, for all the lumber furnished by the plaintiffs to him during the preceding six months.

It is not necessary to state the other proof, or the questions raised in the case, by the several prayers offered by the defendant. His eighth prayer denied the right of the plaintiffs to recover in this proceeding any of the items of their lien claim which were included in the note of the 18th of September 1854, provided the jury find that on that day the plaintiffs had a settlement with Kridler for lumber theretofore furnished by them to him, and then agreed to give, and did give him a credit of four months for the amount then due therefor, and agreed to receive, and did receive from him, his promissory note to their order, for this amount, at four months from the 18th of September 1854, and give him their receipt therefor, offered in evidence.

The court (LEE, J.) rejected this prayer, and to this ruling the defendant excepted, and the verdict and judgment being against him, appealed.  

DISPOSITION:
Judgment reversed without procedendo.  

HEADNOTES:

The 5th sec. of the Mechanics' Lien Law of 1845, ch. 287, prevents the issuing of a scire facias to enforce the lien, in cases where a credit is given or notes or other securities received, until the expiration of the credit agreed upon.

The defence under this section, that the scire facias issued before the expiration of the credit, is as available to any one whose property is sought to be charged, as to the party with whom the contract for the credit is made.  

COUNSEL:
S.  [**4]  Teackle Wallis, for the appellant:

If the lien existed, it would seem too clear for argument that the right to issue a scire facias for the enforcement of it was suspended by the settlement of the 18th of September until the expiration of the credit then agreed on, and the maturity of the note then given. The taking of a promissory note for an open account, even without an express agreement, suspends the right to sue until the maturity of the note. 2 G. & J., 493, Glenn vs. Smith. 2 Gill, 462, Phelan & Bogue vs. Crosby. 1 Md. Rep., 115, Mudd vs. Harper. Ibid., 514, Hunter vs. Van Bomhorst. A fortiori, when there is an express agreement for a credit, as is the hypothesis of the eighth prayer, is the right to sue suspended until the credit agreed on has expired. The 5th sec. of the Act of 1845, ch. 287, expressly enacts that the effect of granting a credit or receiving notes "shall be to prevent the issuing of a scire facias or other proceedings to enforce the said lien until the expiration of the credit agreed upon." The credit of four months agreed upon at that settlement did not expire until the 21st of January 1855, and this writ issued a month before that time, and of course [**5]  was premature. The eighth prayer ought, therefore, to have been granted. The fact of Kridler's having absconded can certainly make no difference. The appellant is still entitled to the stipulated credit. It suspends by Act of Assembly, under all circumstances and in favor of all parties interested, the right to issue the scire facias. Nor is there any proof that this credit was fraudulently obtained, if that could avail the appellees. The settlement was made in accordance with the usual and customary course of dealing between the appellees and Kridler, and there is no proof to show that he was not then acting bona fide. There are some of the items of this claim which are not embraced in this note, but the proof shows that, as for them also, the same credit was given, according to the course of dealing between the parties. The judgment must therefore be reversed without a procedendo.

Oliver Miller, for the appellees, argued that the eighth prayer was properly rejected:

1st. Because by the 5th sec. of the Act of 1845, ch. 287, the granting of a credit or receiving of a note applies to the case where such credit is given and such note is received bona fide. If the party asking [**6]  the credit, or giving the note, at the time designed to and actually did perpetrate a fraud upon the material-men, the latter are not bound, after discovery of such fraud, to await the expiration of the credit which they were thus fraudulently induced to give before they can proceed by scire facias. It is submitted there is evidence in this record from which a jury might properly infer that Kridler obtained this credit by fraud. It is proved that his customary dealing with the appellees was to give his notes on the 1st of January and July, in each year, for the lumber furnished during the preceding six months, yet here he gives the note in the middle of September, and runs away in November, having previously committed forgeries. From these facts a jury might infer that he never intended to pay the note when he gave it; that he expected then to be compelled within a short time to flee from justice, and was making preparations so to do, and gave this note in order that he might prevent the appellees from filing their lien claim, so that he could dispose of the property or raise money on it as if it was free from any such incumbrance.

2nd. Because the delay secured by this section [**7]  is a benefit conferred only upon the party to whom the credit is given, or from whom the note is received, and does not enure to the benefit of any third party unconnected with the credit.

3rd. But the note given does not cover the items of the claim which were subsequent to the 18th of September, and although the judgment should be reversed on the refusal to grant the eighth prayer, yet a procedendo should be issued, in order to enable the appellees to recover under this writ for such items.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*109]  BARTOL, J., delivered the opinion of this court:
The scire facias, in this case, was issued on the 23rd of December 1854, for the purpose of enforcing a claim of the 

 [*110]  appellees under the Mechanics' Lien Law of 1838, ch. 205, and its supplements. The claim was for lumber furnished to Jacob F. Kridler, at different periods, from the 10th of May to the 9th of November 1854. It appears from the record, that on the 18th of September 1854, Kridler gave to the appellees his note for $ 824.57, at four months, in settlement of his account to that date, and which included all the items in the [**8]  lien account to the date of the note. If it were conceded that the appellees have a lien which might be enforced, it is clear that to the extent which their claim is covered by the note, the present writ of scire facias cannot be maintained, it having been issued prematurely.
The Act of 1845, ch. 287, sec. 5, after providing that a lien is not waived by granting a credit or receiving notes or other securities, unless the same be received as payment, or the lien be expressly waived; provides, "that the sole effect thereof shall be to prevent the issuing of a scire facias or other proceedings, to enforce the said lien, until the expiration of the credit agreed upon." Under this Act the appellees could not proceed till after the maturity of the note which was not till the 21st of January 1855. In answer to this view two grounds have been urged on the part of the appellees.
"1st. That the granting of credit, or receiving a note, applies to the case when such credit is given, and such note is received bona fide;" in this case it is alleged the credit was obtained fraudulently.
"2nd. That the delay, secured by the Act of Assembly, is a benefit conferred only upon the party [**9]  to whom the credit is given, or from whom the note is received, and does not enure to the benefit of any third party unconnected with the credit."
The record furnishes no evidence, whatever, that any fraud was perpetrated, or intended, by Kridler in the settlement made on the 18th of September. It is proved that about the last of November following, he absconded from the city of Baltimore; but it nowhere appears that he contemplated such 

 [*111]  a step two months before; or that any of the causes then existed, which afterwards induced him to run away and fly from justice. There is no evidence to impeach the bona fides of the settlement of the 18th of September; it was made in conformity with his long established course of dealing with the appellees. Nor is there any force in the other ground taken by the appellees; the words of the Act expressly deny to the lienor, his remedy by scire facias, till the expiration of the credit, and there is no reason why the defence should not be as available to any one whose property is sought to be charged, as to the party with whom the contract is made. If materials be furnished to a builder, or contractor on a credit, it could not be [**10]  pretended that the claim could be enforced by scire facias against the property of the owner, before the credit had expired. In the judgment of this court the eighth prayer of the appellant ought to have been granted, which upon the facts therein stated, denied to the appellees the right to recover in this proceeding, any of the items in their lien claim filed, which were included in the note and receipt given in evidence.
The account exhibited by the appellees contains some charges, for lumber furnished after the 18th of September, which are not included in the note; but as to them a similar objection is presented. The evidence shows that according to the usual and customary course of dealing between Kridler and the appellees, he was entitled to a credit thereon, till the 1st of January ensuing. See Salmon Falls Manufacturing Co. vs. Goddard, 14 Howard 456.
It seems to us, therefore, that as to the items of claim involved in this appeal, not included in the note, the action was prematurely brought. This point was not distinctly presented in the trial below, but it has been suggested in the argument in this court, and it is apparent from the record that it would be fatal [**11]  to any recovery by the appellees in this case upon procedendo, even if, in other respects, the claim were free from objection. Upon this state of the record, it is the duty of this court to reverse the judgment below without 

 [*112]  procedendo, leaving to the appellees to assert their claim by future proceedings, if they shall be so advised.
Upon the other questions presented by the bill of exceptions, and argued at the bar, it is unnecessary to express any opinion.
Judgment reversed without procedendo. 

99 of 196 DOCUMENTS 

JOHN WELLS and WM. MILLER vs. ROBERT TURNER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 133; 1860 Md. LEXIS 55 

June 13, 1860, Decided 

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

Assumpsit, brought on the 30th of April 1857, by the appellants, co-partners, trading under the name and firm of Wells & Miller, against the appellee, to recover for work and labor done and materials furnished in and about the repairs of a steamboat. Plea non assumpsit.

Exception. Much testimony was offered on both sides which need not be stated at length. The bill for the repairs amounted to $ 2870.47, and was made out against the "Steamboat Ice King and owners," and was admitted to be correct as to the work done and prices charged. On the part of the plaintiffs, the evidence tended to show that the steamer "Susquehanna," afterwards called the "Ice King," was purchased by the defendant, and repaired by the plaintiffs, who were machinists, upon the request and by the order of the defendant. The defence set up is, that there was an association or partnership in this steamboat, and that Turner, the defendant, had no other relation to this boat than as being one of the partners, and that the plaintiffs were also partners in the enterprize, quite as active, and participating as largely in its management, as Turner, and as evidence [**2]  of this partnership, or association, a paper marked A. B., was offered in evidence, the heading of which is as follows:

"The undersigned, merchants, shippers and business men of the city of Baltimore, in view of the necessity of keeping open the harbor of said city from the obstructions of ice, and also in order to assist vessels of heavy draught, unable to reach the city with full cargoes, as well as to render relief to vessels in distress, or otherwise needing either a lighter or tow-boat, do hereby promise and agree, each to the other, and to each and all of whose names are hereunto subscribed, to pay the sum or sums affixed to our several names, for the purpose of purchasing and fitting the steamboat "Susquehanna," of three hundred and eighty-five horse power, register about five hundred tons, and of six thousand barrels capacity on deck, as a general steam tow-boat lighter and iceboat, to be employed for the purpose hereinbefore expressed; and it is hereby also agreed by and between the undersigned that the capital of $ 25,000, the requisite purchase money of and expenditures on said steamboat, shall be deemed to be a capital stock, and be divided into shares of $ 100 each,  [**3]  and that the sum or sums respectively subscribed by us shall be represented by and be understood to mean the equivalent thereof in the shares of said capital stock."

The list of subscribers to this paper was headed by the defendant, Robert Turner, for $ 1500, and among the other subscriptions appears the name, "Wells & Miller, $ 500." But there is no evidence that the plaintiffs, or either of them, signed or authorized this signature to be put thereto. The purport of the other evidence in the case is sufficiently stated in the opinion of this court, and the arguments of counsel. The plaintiffs presented the following prayer:

"If the jury find from the evidence that the repairs stated in the bill, offered in evidence by the plaintiffs, were made and done by them on the engine and boilers of the steamer Susquehanna, for the defendant and by his order and direction, and that at the time when said repairs were so ordered and done, the defendant was the owner of the said steamer, then the plaintiffs are entitled to recover, unless the jury shall find, from the evidence, that it was agreed between the plaintiffs and the defendant, that the said repairs should be paid for by some [**4]  person, or persons, other than the defendant, or unless they shall find that the repairs were done by the plaintiffs upon the credit of some person, or persons, other than the defendant."

The defendant then presented the following prayer:

"If the jury find, from the evidence, that the plaintiffs subscribed their partnership name to the paper offered in evidence in this case, and marked A.B., or permitted or authorized any other person to subscribe their name to said paper, or after their name had been subscribed, they had, or either of said plaintiffs had, knowledge that their name had been subscribed to said paper, and that said plaintiffs acquiesced in such subscription of their name, or permitted it to remain upon said paper; and that John Wells, one of the plaintiffs, attended one or more meetings of the subscribers to said paper, as stock or shareholders in said steamer Susquehanna, and that the work and materials, sued for in this case, were done and furnished after the said plaintiffs became subscribers, as aforesaid, then the plaintiffs cannot recover in this action for any part of the work and materials which the jury may find was done and furnished after the plaintiffs [**5]  became subscribers to said paper, marked A.B."

The court (LEE, J.) refused to grant the plaintiffs' prayer as offered, but added thereto the following modification: "Provided the jury shall find that the repairs were done for the benefit of the defendant, and not for the benefit of an association," and granted the same with this modification.

The court also refused to grant the defendant's prayer as offered, but modified it by adding thereto these words: "Provided, the jury do not find, from the evidence in this cause, that the defendant offered to pay for said repairs, and acknowledged his liability for them, as repairs done for his benefit and not for the benefit of an association of subscribers," and granted the same with this modification.

The plaintiffs' excepted to the refusal of the court to grant their prayer as offered, and to the modification thereof made by the court, and to the granting of the defendant's prayer as modified by the court. The verdict and judgment were in favor of the defendant, and the plaintiffs' appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

Where the defendant purchases a steamer and has her repaired in the expectation of selling her to an association, of which he and the plaintiffs were, or were to be, members, he is liable in an action at law to the plaintiffs, for such repairs, whether the vessel was sold to and employed by the association or not.

But if the repairs were made by the plaintiffs, upon an agreement or understanding between the defendant and the plaintiffs, that such an association was to pay for them, or that they should look to the association for payment, he is not liable therefor in such an action.

Where the question is on whose credit was the labor and materials sued for done and furnished, each party has the right to ask for instructions based on his view of the case, if the evidence relied on be legally sufficient to warrant the conclusion sought to be deduced from it.

In such a case, if the plaintiff's prayer places his hypothesis of the testimony fairly before the jury, it should be granted, and if granted with a proviso qualifying the instruction to his prejudice, he has cause of appeal.

Where the plaintiff's prayer placed his right to recover for repairs done to a steamboat, on the facts of ownership of the boat by the defendant and that the work was done for him and by his order, a modification added by the court that the jury must find it was done for his benefit, and not for the benefit of another, changes the instruction and is erroneous.

If a party orders work to be done, it is immaterial for whose benefit may be intended; he must pay for it, unless credit therefor be given to another.

Where the plaintiffs, as partners, were doing business as machinists, in the city of Baltimore, the acts and declarations of one of them, in reference to subscriptions to, and formation of, an association to purchase an ice and tow-boat, for the purpose of keeping open the harbor of that city, are not binding upon his co-partner, such an association not being within the scope of their partnership business.

Where the acquiescence of one of two partners in the articles of an association is but an inference from his attendance at meetings and otherwise participating in promoting its objects, the consent of the other partner thereto cannot be inferred therefrom, because an inference from an inference cannot be permitted.  

COUNSEL:
I. N. Steele, for the appellants, argued:

1st. That the prayer offered on the part [**6]  of the appellants should have been granted, because there was abundant evidence to sustain the hypothesis of fact on which it was founded, and because the proposition of law which it involved, viz., that he who orders repairs on his own vessel is liable to pay for them, unless he is exempted from liability by agreement, or the repairs are done on the credit of some other person, was plainly correct.

2nd. The modification of the prayer by the court, in effect, instructed the jury, that even if they should find that the repairs were done for the appellee, on his own boat, by his own order, without any agreement exempting him from liability, and not upon the credit of any other person, still he was not liable unless they should also find that the repairs were done for his benefit, and not for the benefit of an association, thus propounding to the jury a confused, uncertain, and secondary test of the appellee's liability which could have been resorted to only in the absence of all proof necessary to furnish a better test, and which was altogether inapplicable to the state of facts which the prayer itself assumed. Abbott on Shipping, 34, 35, 132. 1 Term. Rep., 108, Farmer vs. Davies.  [**7]  2 Bing., 179, Harrington vs. Fry.

3rd. This modification was erroneous, because it assumed the existence of an association at the time the repairs were ordered, or at least left it the jury to find that fact, when the proof in the cause went only to the extent of showing, that an effort was on foot to form an association.

4th. That the prayer of the appellee, with the proviso annexed to it, was not authorized by the evidence in the cause. The uncontradicted testimony of the appellee's own witnesses was, that the appellants did not subscribe either copy of the paper marked A.B., and that their signature was affixed to one paper and copied on the other without their knowledge or authority, and there was further no evidence that one of the plaintiffs, Miller, had knowledge of it, and as to the other the proof was insufficient in law to establish his knowledge. 8 Md. Rep., 186, 187, White vs. Davidson. 8 G. & J., 323, Steam Nav. Co. vs. Dandridge. 9 Pet., 629, Owings vs. Hull. 11 Md. Rep., 259, Howard vs. Carpenter.

5th. That, even if there was evidence to go to the jury that one of the appellants afterwards had knowledge of the fact of the unauthorized subscription of their [**8]  name, still the instruction was wrong, because one partner cannot bind the firm by contracts outside of the ordinary partnership business, and a fortiori the knowledge of one partner of an unauthorized contract of that description cannot affect or bind his co-partner. Coll. on Part., sec. 483. Story on Part., secs. 110, 111. 8 Md. Rep., 186, 187, White vs. Davidson.

6th. That the prayer of the appellee, which was in fact not affected by the proviso added by the court, made the mere attendance of Wells, at one or more meetings of the subscribers to the paper A.B., and the subscription of that paper by the appellants, either directly or through some person whose act they acquiesced in, an absolute defence to the action for work done after this subscription, and ought not to have been granted, because the naked fact of Wells' attendance at such meetings, though it might be evidence of his knowledge and ratification of the previous subscription of the firm's name, had not in law any distinct significance or effect in ascertaining the liability of the appellee, because the paper A.B., was, by its terms and true construction, prospective and conditional, looking to the future purchase [**9]  and joint ownership of the steamer, and did not protect the appellee from liability on his individual contract with the appellants, made while he was owner of the steamer, and because this paper never became absolutely binding on the subscribers to it, and the enterprize which it contemplated was abandoned without an organization, and because the jury were not required to find that the repairs were ordered or authorized by the subscribers to that paper. Coll. on Part., secs. 510, 1082, et seq. 10 Barn. & Cress., 128, Dickinson vs. Valpy. 6 Bing., N. C., 44, Howell vs. Brodie. 6 Bing., 776, Fox vs. Clifton. 9 Barn. & Cress., 632, Bourne vs. Freeth. 7 Barn. & Cress., 409, Vice vs. Anson. 6 Mann. & Gran., 926, Wood vs. Duke of Argyll. 1 Wend., 63, Murray vs. Richards. 25 Wend, 475, Sandford vs. Handy.

Benj. C. Barroll and Chas. H. Pitts, for the appellee, argued:

1st. There was error in the plaintiffs' prayer as offered, and the following defects are suggested: 1st. If the work was done for the defendant, and by his order, yet if it was so done for the benefit of the association or partnership, upon the partnership property, then the plaintiffs, if they were themselves of the [**10]  number of the co-partners, were not entitled to recover. 2nd. The prayer wholly omitted all notice of the arrangement made with Turner, for the payment of the repairs, at the meeting of the 26th of January 1857. 3rd. The last clause of the prayer left it to the jury to find the credit given to the association, but excluded Turner from the same as a stockholder or partner. 4th. The hypothesis of the prayer, calling upon the jury to find the ownership of the boat was well calculated to embarrass and mislead the jury. According to the law of the plaintiffs, the ownership of the vessel was wholly irrelevant. 2 Gill, 393, Henderson vs. Mayhew. 5th. The prayer put it to the jury to find as a fact an agreement between plaintiffs and defendant, of which there was no evidence. 6th. The first paragraphs of the prayer are objectionable, as containing, by insinuation and ingenious suggestion, the existence of a contract between the plaintiffs and defendant, of which there was no evidence. The prayer suggests what had no foundation in fact, to wit: that there was an individual contract by the appellee with the appellants. 7th. In point of fact, the plaintiffs got all the benefit of their prayer,  [**11]  because the modification added by the court, did not vary the legal proposition contained in the prayer. The prayer called upon the jury to find the work done "for the defendant," while the modification merely explained that work for the defendant, meant work for the benefit of the defendant. The plaintiffs lost nothing by the modification, but got, substantially, what they asked for, and a great deal more than they were entitled to. 2 Greenlf. on Ev., sec. 937.

2nd. The defendant's prayer was properly granted, because, if the jury found the facts contained in the prayer, then the plaintiffs were co-partners in the vessel, and in the joint enterprise, and could not, at law, recover for work done for the partnership. The modification of the prayer given by the court, gave the plaintiffs all the benefit of the question, to whom the credit was given, and even gave them the benefit of making the promise of Turner to pay, and his acknowledgement of liability, conclusive evidence of the right of the plaintiffs to recover, thus giving the plaintiffs ground to stand on, to which they were not entitled. Shareholders in a joint stock company, not incorporated, are inter se partners. Story [**12]  on Part., sec. 164. Coll. on Part., sec. 1087. 8 Eng. C. L. Rep., 27, Holmes vs. Higgins. 4 Metcalf, 535, Tappan vs. Bailey. Where a joint stock company is abandoned and fails, the relation of the parties is not thereby changed. 20 Eng. C. L. Rep., 67, Doubleday vs. Muskett. 46 Eng. C. L. Rep., 930, Wood vs. Duke of Argyll. It is not necessary that all the shares should be taken. 4 Metcalf, 535, Tappan vs. Bailey. Legal ownership in one, is consistent with equitable ownership in others. 16 Pick., 403, Vinal vs. Burrill. 1 Mason, 308, Weston vs. Penniman. Part owners are, in all cases, responsible, as partners, for the repairs to the ship. 3 Kent, (8th Ed.,) 156. Abbott on Shipping, 143. A ship's husband may be one of the part owners, or a stranger, and his contracts for the vessel bind all parties. 3 Kent, (8th Ed.,) 157. The repairs, in this case, were not furnished on the credit of the appellee, but for the benefit of all concerned in the joint enterprise, upon the credit of the copartnership. Abbott on Shipping, 38, 39, 40, and notes. 2 H. & G., 295, Causten vs. Burke. 3 H. & J., 505, Taylor vs. Terme.

3rd. In whatever aspect these prayers may be viewed, the jury could not [**13]  have found for the appellee, unless they had found that he was not responsible for these repairs, and that they were not done for his benefit. Wells, one of the plaintiffs, was a prime mover in this whole enterprise, and it is said now, that in doing so, he committed a fraud upon his partner, Miller. But there was no such fraud, for even supposing this subscription was not made with the knowledge or authority of Wells and Miller, still their subsequent assent or acquiescence, amounts to a ratification of it. It is true there must be knowledge, actual or implied, to make acquiescence binding; but this scienter may be established by facts and circumstances, as in other cases. And, upon the facts in this case, Miller had such notice and knowledge of the matter as to make his acquiescence ratification. Again, Wells had the power, without consent of his partner, Miller, to agree to do these repairs and to look to this association for pay, and Miller would have been bound by it, because it was a matter within the scope of their partnership business; and there is evidence that such an agreement was made by Wells.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and BARTOL,  [**14]  J.  

OPINIONBY:
TUCK 

OPINION:

 [*141]  TUCK, J., delivered the opinion of this court.
In cases like the present the court of final resort should not express any opinion upon the facts, further than may be necessary to determine whether the evidence is legally sufficient to warrant the conclusions of law asserted in the prayers, because, if the record be remanded for another trial, remarks by us upon the testimony might have weight with the jury, who alone are competent to pass upon questions of fact.
The action was instituted by the appellants against the appellee, to recover for work, labor and materials in and about the repairs of a steamboat. The correctness of the account is not denied by the defendant, but he insists that there was an association or partnership of persons in the steamboat; that he had no other relation to it than as being one of these persons, and that the plaintiffs were also partners, quite as active and participating as largely in getting up the enterprize for keeping open the harbor of Baltimore, as was the defendant himself. From this alleged relation it is contended that the plaintiffs cannot sue the defendant at law for work done for the benefit of the association,  [**15]  or to advance its interests. The propositions of law and fact, therefore, in the court below, resolved themselves into the question, whether the work 

 [*142]  was done on the credit of the defendant, or on that of the association, at that time in progress of being formed, and for whose use, as it is said, the boat was undergoing alterations and repairs. If Turner purchased the boat, and had her altered and repaired in the expectation of selling her to, or of having her employed by, the association mentioned by the witnesses, he ought to pay, whether she was so employed or not; but if the work was done upon an agreement, or understanding, between him and the plaintiffs, that the association was to pay, or that the plaintiffs should look to the association for payment, then the defendant is not liable in this action. The correctness of the rulings below must be tested by the application of these principles to the prayers offered by the parties.
The evidence is so contradictory, or we should rather say, that so much was said, written and done, during the time covered by the transactions detailed in the record, that the jury might have found one or the other of the theories asserted [**16]  by the parties, according to the views they might have taken of the testimony, the credit to be attached to the witnesses, and the circumstances and motives under which these transactions took place. Each party had the right to call on the court for instructions, based on his view of the case, if the evidence relied on was legally sufficient to warrant the conclusion sought to be deduced from it. If an illustration be needed, we may state the familiar distinction between a collateral and an original undertaking, where it is sought to charge one person for the price of goods sold and delivered to another, there being no writing to bind the party. The plaintiff may ask the court to say to the jury that they must find for him, if they believe, from all the evidence, that credit was given to the defendant, and so the defendant may claim the verdict if the jury find that credit was given to the party receiving the goods.
As we have said, the question in this case was, to whom was the credit given, and if, as we think, the prayer of the plaintiffs placed their hypothesis of the testimony fairly before the jury it ought to have been granted, and if granted with 

 [*143]  a proviso qualifying [**17]  the instruction to the prejudice of the party tendering the prayer, they have cause of appeal. It left the jury to find whether the repairs and alterations were done by the plaintiffs for the defendant, and by his order and direction, and whether he was at the time the owner of the boat; upon their so finding the plaintiffs claimed the verdict. And, to allow the defendant the benefit of his defence, the jury was also authorized to find, if they should take that view of the case, that it was agreed between the parties that the work should be paid for by some person or persons other than the defendant, or was done upon the credit of some other person or persons, in which event the prayer conceded the plaintiffs could not recover. Now, the allegation of the defendant was, that there had been an understanding that the association should pay, and, under this clause of the prayer, the defendant was fully protected.
The claim and the defence were thus presented to the jury, and their consideration invited to both. We cannot perceive how this instruction could have injured the defendant.
But it is said that the plaintiffs had the full benefit of the prayer as offered, because the proviso [**18]  did not change or modify its meaning. We must suppose that the court below thought otherwise, and that the proviso was designed to change the prayer, else why was the addition made; and we think that it had such effect. The prayer made the plaintiffs' recovery depend on the ownership of the boat by Turner, and that the work was done for him and by his order; the proviso added another fact to be found, viz., that the work was done for his benefit and not for the benefit of an association. If a man orders work it is immaterial for whose benefit it may be intended; he must pay. Even if the plaintiffs knew that the boat was designed to be sold for the association mentioned in the evidence, their right to recover against the party ordering the work cannot be questioned, unless, as admitted by the prayer, credit was given to the association. We are of opinion that the prayer should have been granted as tendered by the plaintiffs.

 [*144]  We also think there was error in the defendant's prayer, as offered, and that it was not perfected by the proviso added by the court. There was no evidence from which the jury could find that the plaintiffs, or either of them, signed, or authorized [**19]  their names to be signed to the paper referred to in the prayer, nor of any acquiescence on their part after it had been signed. To be sure, it appears that Wells, one of the plaintiffs, was actively participating in the transactions for opening the harbor, and for employing this boat for that purpose, and, we think, there is evidence from which his knowledge and acquiescence may be inferred; but Miller, the other member of the firm, does not appear to have participated in these proceedings, or to have done any thing from which his knowledge that the partnership name had been put to the paper could be deduced; and we do not perceive how he can be bound by the acts of his partner, unless it be shown that he was acting by his authority, for the firm, or within the scope of his power as a member of the firm. We gather from the record that they were machinists, and the acts and declarations of Wells, in reference to the formation and objects of the association were not connected with the business of his co-partnership. The fact of the acquiescence of Wells in the articles of association is but an inference from his attendance at meetings and otherwise participating in promoting its objects;  [**20]  but, according to the principles of the law of evidence, an inference from an inference cannot be permitted; the consent, therefore, of Miller, cannot be deduced from Wells' participation in these proceedings.
Judgment reversed and procedendo ordered. 

100 of 196 DOCUMENTS 

GERARD GOVER vs. SARAH C. OWINGS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 91; 1860 Md. LEXIS 50 

June 12, 1860, Decided 

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

Assumpsit, brought on the 4th of January 1855, by the appellee against the appellant, to recover a sum of money alleged to have been improperly and illegally paid, by the defendant, to the husband of the plaintiff, during his life, said sum being claimed as belonging to and part of the plaintiff's sole and separate estate. Plea non assumpsit.

It appears, from the proof in the case on the part of the plaintiff, that the plaintiff, formerly named Mary Catharine S. Hubbell, being about to marry Samuel C. Owings, executed with the said Owings, and one Louis Regis Deluol, the following deed, called in the record a deed of marriage settlement:

"This Indenture of these parties, made this seventh day of June, in the year of our Lord one thousand eight hundred and forty-eight, between Samuel C. Owings, of the city of Baltimore, in the State of Maryland, of the first part, Mary C. S. Hubbell, of the same place, of the second part, and Louis Regis Deluol, of the same place, of the third part. Whereas, the said Mary Catharine S. Hubbell is seized and possessed to her and her heirs and assigns, of certain real and personal estate,  [**2]  situate and being in the city of Baltimore and elsewhere.

"And whereas, a marriage is intended shortly to be had and solemnized between the said Samuel C. Owings and the said Mary Catharine S. Hubbell, upon the contract of which marriage the said Samuel C. Owings hath agreed, that if the same shall take effect, then, notwithstanding the said marriage, he, the said Samuel C. Owings, his executors, administrators and assigns, shall not and will not intermeddle with, or have any right, title or interest, either in law or equity, in or to any part of the said real or personal estate, but the same shall remain, continue and be to the said Mary Catharine S. Hubbell, or to such use as the said Mary C. S. Hubbell shall think fit and appoint. Now this Indenture witnesseth, that for the making the said agreement effectual in law, and for the preserving of said real and personal estate to and for the separate use of the said Mary Catharine S. Hubbell, and so that the same shall not be in the power or disposal of the said Samuel C. Owings, the said Samuel C. Owings doth, for himself, his heirs, executors, administrators and assigns, covenant to and with the said Louis Regis Deluol, his executors [**3]  and administrators, by these presents, that, notwithstanding the said intended marriage shall take effect, all the real and personal estate aforesaid of her, the said Mary Catharine S. Hubbell, particularly all mortgages held by her, or in which she is in any manner interested; all negro slaves now owned by her; all furniture of the said Mary Catharine S. Hubbell, a portion of which is now being forwarded from Louisville to Baltimore; all the furniture now standing and being in the dwelling house, No. eighty-seven, Eutaw street, in the city of Baltimore; all other the personal effects of every description now belonging to said Mary Catharine S. Hubbell, and all debts of every description due to or contracted with her, the said Hubbell, and all the rents which, from time to time, shall become due and payable to her from her said property, and all the interest due or to grow due, and all the increase or profits whatsoever of said property, shall be accounted, reckoned and taken as a separate and distinct estate, of and from the estate of him, the said Samuel C. Owings, and be in no wise liable or subject to him, or to the payment of any of his debts; but that all said real and personal [**4]  estate, with the profits or increase that shall thereafter be gotten, gained or made of the same, be ordered, disposed and employed to such person and persons, to and for such use and uses, intents and purposes, and in such manner and form as is hereafter mentioned and declared, that is to say, that the money arising or accruing out of the said separate and distinct estate before mentioned, shall, from time to time, be invested or appropriated to such purposes as the said Mary Catharine S. Hubbell shall think fit; which investments, during the coverture, shall be made in the name of the said Louis Regis Deluol, or in the name or names of such other person or persons as the said Mary Catharine S. Hubbell shall order and appoint in trust for her, the said Hubbell.

"And that all the said separate and distinct estate before declared and allotted for the said Mary Catharine, as aforesaid, and the produce and increase thereof, shall be had, taken, held, possessed and enjoyed by such person and persons, and for such use and uses, as the said Mary Catharine shall, at any time or times hereafter, during her life, limit, devise, order or dispose of the same, or any part thereof, either [**5]  by her last will and testament in writing, or by any other writing whatsoever, signed with her hand in the presence of two or more credible witnesses. And it is likewise declared and agreed that it shall and may be lawful to and for the said Louis R. Deluol, and he is hereby authorized and requested, at any time or times after the solemnization of the said intended marriage, with the consent and approbation of the said Mary Catharine, testified in writing as aforesaid, if she shall then be living, and after the decease of the said Mary Catharine, then of the proper authority of the said trustee for the time being, to sell, transfer and dispose of, the stocks, funds, securities, or any other of the separate estate aforesaid, and to lay out the money arising thereby, in and upon new or other stocks, funds or securities of the like nature, or in any other description of property, when and as often as occasion shall require; and which new other stocks, funds and securities, and the interest, dividend and annual product thereof, shall go and remain upon the same trusts, and for the same intents and purposes as the stocks, funds and securities which shall have been so sold, transferred or [**6]  disposed of, and the interest, dividends and annual produce thereof, or such of them as shall be then existing or capable of taking effect. And it is further covenanted and agreed by and with the parties hereto, that he, the said Samuel C. Owings, shall and will, from time to time, and at all times from and after the said intended marriage shall take effect, upon every reasonable request, and at the proper costs and charges of the said Louis Regis Deluol, make, do and execute all and every such further act and acts, thing and things, for the better settling, recovering and receiving the monies, goods and estate of Mary Catharine S. Hubbell, allotted and and declared for her separate use, benefit and disposal, as by the said Louis Regis Deluol, or his counsel, learned in the law, shall be reasonably devised or advised or required In testimony whereof, the said Samuel C. Owings, Mary Catharine S. Hubbell and Louis Regis Deluol, have hereunto set their hands and seals, on the day and year first above written."

This deed was duly executed, acknowledged and recorded, and the marriage solemnized, and a part of the plaintiff's estate was subsequently sold to Col. J. S. Nicholas, who,  [**7]  in part payment of the purchase money, gave his two notes, one for $ 222.42, and the other for $ 1000, each payable "to the order" of the plaintiff, "use of her separate estate." These notes were placed in the hands of the defendant as collateral security for three checks, drawn by Mrs. Owings on the defendant, amounting to $ 505; two of which checks were payable to the order of Samuel C. Owings, and the other to bearer. The notes and checks were entered by the defendant in a bank book, produced by the plaintiff at the trial, and these notes were paid by Col. Nicholas at maturity to the defendant, and this suit was brought by the plaintiff after the death of Samuel C. Owings to recover the balance of the amount of the notes after deducting the checks.

The defendant proved by J. S. Nicholas, Esq., that Col. Owings applied to him to borrow money on a mortgage of Mr. Owings' separate estate for her use, and afterwards, as her agent, sold a part of her property to him, and that the two notes in question were given by witness to Col. Owings, for his wife, in part payment for said property, and that witness paid these notes at the banking house of Josiah Lee & Co., of which house the [**8]  defendant was a partner. The defendant also proved, by S. H. Taggart, Esq., that Col. Owings came to witness, who was attorney for Gover, to get witness to go with him to Gover, and Col. Owings then had both notes in his hands, endorsed by Mrs. Owings; they went together to Gover, and witness told Gover the notes were good and he could with safety take them; witness was called upon by Col. Owings to accompany him to the banking house of Josiah Lee & Co., to see Mr. Gover in relation to said negotiations between them; it was stated that Gover had made advances on account of the notes in question; the amount of the notes and advances were calculated at the counter in the presence of witness, and Gover paid to Col. Owings a further sum of money as an advance, which witness understood was the full amount that would be coming to him; witness saw no check and no book at that time.

It was admitted by the plaintiff's attorney that the defendant had paid to Col. Owings the whole amount of the balance now claimed by the plaintiff, but when and how paid is not admitted, and it is not admitted that Col. Owings was authorized by Mrs. Owings to receive it.

Upon these facts, several prayers [**9]  were offered on the part of the defendant, which were rejected by the court (LEE, J.) to which rulings the defendant excepted. The ground upon which the decision of this court is made, renders a statement of these prayers unnecessary. The verdict and judgment were in favor of the plaintiff and the defendant appealed.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

By a marriage settlement, not creating a trustee for the wife, it was covenanted that the estate of the wife should be reserved to her, free from the control, and liability for the debts, of the husband, and the wife had power to direct the manner in which it should be invested and appropriated, and for such purposes as she might think fit. A part of her estate was subsequently sold, and the purchaser gave his notes for the purchase money, payable to her "order," "use of her separate estate," which notes endorsed in blank, were in possession of the husband, who obtained advances on them from the defendant, the latter collecting the same from the maker, and paying over the entire proceeds to the husband, a part on the checks of the wife, and the residue to the husband directly. In an action by the wife, after the death of her husband, to recover from the defendant this residue so paid to the husband in his life time, HELD:

That the husband became the trustee of his wife, and was entitled to collect these notes, and, if he misapplied their proceeds, his estate is liable to the wife therefor; the defendant is not liable, having paid the money to the trustee (the husband) in good faith and without knowledge of any proposed fraudulent misapplication of the fund by the trustee.

Where a trust is created in behalf of a married woman and there is no legal trustee created by the settlement, her husband becomes her trustee by operation of law, and as such has the right to reduce into possession her choses in action, for her sole use and benefit, and, like any other trustee, he and his representatives are responsible to her separate estate for whatever funds he may receive belonging to it.  

COUNSEL:
J. N. Steele, for the appellant, argued:

1st. That the notes in question, and their proceeds when collected, were at law the property, not of Mrs. Owings, but of her husband, and were subject to his disposition and control. Under this marriage contract or agreement, there is nothing to show that Mrs. Owings had, at law, any such title to the property as would prevent the marital rights of the husband from attaching, whatever might be the effect in equity. 4 Md. Rep., 280, Peacock vs. Pembroke. 6 Md. Rep., 375, Turton vs. Turton. There is no question of survivorship in the case, for it is admitted the money was paid to the husband in his life time, and if he had a right to reduce it into possession, it was well paid to him. Now, whatever may be the construction of this marriage contract in other respects, it certainly did not create Deluol [**10]  the legal trustee of Mrs. Owings, and if it created a trust for her separate use, and no trustee was appointed, her husband became her trustee, and as such had the right to collect the notes. 3 Md. Rep., 550, Ware vs. Richardson. Act of 1853, ch. 245. Atherly on Marriage Settlements, 338, in 27 Law Lib. 2 Roper, 180. 1 H. & G., 280, 291, Buchanan vs. Deshon.

2nd. That if the notes could belong at law to Mrs. Owings, she, by their unrestricted endorsement, and delivery to her husband, gave him authority to deal with them as owner, in so far as concerned third persons who might make advances on or discount them in whole or in part, in the absence of mala fides shown on the part of persons so dealing with him. Story on Agency, secs. 73, 228. 6 Mass., 196, Erick vs. Johnson. 1 Pet., 264, Schimmelpeunick vs. Bayard. 1 Bos. & Pull., 648, Collins vs. Martin. 4 Adol. & Ellis, 870, Goodman vs. Harvey. 1 Adol. & Ellis, N. S., 498, 504, Arbouin vs. Anderson.

T. P. Scott, for the appellee, argued:

1st. That the notes having been given for the proceeds of sale of a part of Mrs. Owings' separate estate, secured to her separate use under the deed of marriage settlement, and being so [**11]  specially marked on their face, were protected under that deed, and were not subject to any claim of the husband or his creditors.

2nd. That the appellant having received these notes, and having collected them knowing of this trust, and that these notes were part of the trust estate, was chargeable with the amount, as trustee for her separate use. Story's Eq., secs. 1270, 1380, 1381, 1382. 3 Md. Rep., 550, Ware vs. Richardson. 11 Md. Rep., 37, Hutchins vs. Dixon. 13 Md. Rep., 360, Chew vs. Beall. 4 Md. Rep., 280, Peacock vs. Pembroke. 6 Md. Rep., 382, Turton vs. Turton. 10 Md. Rep., 117, Taggart vs. Boldin. Ambler, 566, Rippon vs. Dawding.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*98]  LE GRAND, C. J., delivered the opinion of this court.
This is an action to recover from the appellant, who was the defendant below, a sum of money alleged to have been improperly and illegally paid to the husband of the plaintiff during his life, said sum being claimed as belonging to and as part of her sole and separate estate. The circumstances of the case may be thus briefly stated: The plaintiff, contemplating an intermarriage with a [**12]  gentleman, who subsequently became her husband, together with him and another, executed the instrument of the 7th day of June 1858. This paper is designated in the record as the "marriage settlement," and was doubtless intended by the parties to it to convey out of her the legal title to her estate and to vest it in a trustee for her sole and exclusive use. It is not very artistically drawn, and did not, in our opinion, accomplish, in this particular, its intended office. We regard all those portions of it which refer to the interference of the third party (Louis R. Deluol) with her property, as covenants between the parties that her estate should be reserved to her free from the control of and liability for the debts of her intended husband. But, whilst we do not consider the instrument as directly divesting her of the legal estate, we deem it sufficient to authorize her to direct the manner in which it should be "invested and appropriated," and for "such purposes" as she might "think fit."
In this state of marital relations between the plaintiff and her husband, a portion of her estate was disposed of to J. Spear Nicholas, who gave his notes for it. They promise [**13]  to pay to the "order" of the plaintiff, "use of her separate estate." These notes were paid at the banking-house of Josiah Lee & Co., of which firm, the defendant was a member. From the evidence it appears they were endorsed in blank, and, in this condition, were in the possession of the husband 

 [*99]  of the plaintiff, who obtained advances on them from the defendant. A portion of these advances were made on the checks of the plaintiff, and the residue paid to her husband. It is to recover this residue that this action was brought, it being insisted, that the defendant having received and collected the notes, knowing that they belonged to the separate estate of the plaintiff, he received them and their proceeds, subject to, and charged with the trust, and that the payments, other than on the checks of the plaintiff, were made by the defendant in his own wrong.
It is admitted that the defendant paid the whole amount received by him, part on the checks of the plaintiff, and the balance of it to her husband.
In the view we have of this case it is not important to inquire, whether, the plaintiff had the right, under the terms of the ante-nuptial contract, to appropriate [**14]  the proceeds of the note, if she thought "fit," to her husband, or, whether, by the law governing negotiable paper, she had, by the very terms of the note, power to confer title on the holder, either by a special or blank endorsement. If the power existed in either supposed case, then, clearly, this action cannot be maintained. But, we do not decide the case on such ground.
When a trust is created in behalf of a married woman, and there is no legal trustee created by the settlement, her husband becomes her trustee by operation of law, and as such, has the right to reduce into possession her choses in action for her sole use and benefit. And, like any other trustee, he and his representatives are responsible to her separate estate for whatever funds he may receive belonging to it. In virtue of this principle the husband of the plaintiff became her trustee, and was entitled to collect the note in question. If he misapplied the proceeds, his estate is liable to her claim, and not the party who has once honestly paid the amount of it. The case of Bennet vs. Davis, 2 Peere Williams 316, is to the point, that where there is a devise to a feme covert for her [**15]  separate use, without appointing any trustee, a court of equity will supply the want of one by regarding the husband as such.

 [*100]  It is the duty of trustees, as of executors, to render available the choses in action of their cestui que trust, and to enable them to do this, they have the right to resort to the proper means for their collection. Their receipt and release is a sufficient acquittance to the debtor. The only exception to this is, where the debtor knows the trustee intends to commit a breach of trust; in such a case, it would not, according to some of the authorities, be safe to pay to the trustee, whether he has an express power of signing receipts or not. But, even in such cases, the fact of such knowledge must be brought home to the person paying, so as to make him particeps criminis, a privy to the fraud. Lewin on Trusts, 331, marginal.
In the case now before the court, there is no pretence or allegation of fraud against the appellant; all that has been contended for is, that the circumstances under which he received the notes were sufficient to inform him that they belonged to a trust fund. This was not sufficient to invalidate his payments [**16]  to the trustee; something further was necessary; a knowledge on the part of the debtor of a purposed fraudulent misapplication of the fund by the trustee.
From what we have said, it will appear, we are of opinion the plaintiff cannot recover against the defendant on the facts in this case, and, it is, therefore, not necessary we should consider the form of the instructions granted or refused by the court. We reverse the judgment without procedendo.
Judgment reversed. 

101 of 196 DOCUMENTS 

HENRY MAHANEY, and others, vs. WILLIAM LAZIER, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 69; 1860 Md. LEXIS 47 

June 7, 1860, Decided 

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

Appeal from an order granting an injunction upon a bill filed on the 13th of February 1860, by the appellees against the appellants.

The bill alleges that the complainants had caused two attachments on warrants to be issued, the one from the law side of the Superior court, and the other from the Court of Common Pleas, upon transcripts of judgments rendered in Taylor county, Virginia, in their favor against Mahaney, both of which writs of attachment were laid in the hands of the Fire Insurance Company, of Baltimore, and Mahaney appeared, by attorney, to the capias, in each case, and that Mahaney is justly and bona fide indebted to them in the amounts called for in said judgments; that on the 22nd of July 1858, Mahaney, conspiring with one James R. Smith to defraud complainants, and his other creditors, executed to Smith his bond, purporting to bear date the 1st of January 1858, for $ 2500, payable, one day after date, to the order of Smith, who thereupon passed the same to Howard & Co.; that Mahaney at that time held a policy of the Fire Insurance Company of Baltimore, upon which there had previously been [**2]  a loss; that subsequently to this loss, but prior to the 22nd of July 1858, five attachment suits had been instituted against Mahaney in the Superior court and the Court of Common Pleas, all of which were laid in the hands of said insurance company, and that Mahaney and Smith, conspiring to defeat these and subsequent attaching creditors, made said bond on or about the day last mentioned, and ante-dated the same, for the purpose, the more effectually to cover the fraud; that upon this pretended bond the assignees, Howard & Co., caused an attachment on warrant to be issued from the Superior court, and laid in the hands of the said insurance company, and Mahaney, by his attorney, appeared to the capias in this attachment, and, carrying out the fraud thus begun, instructed his attorney to defend all the other attachments, but to enter judgment in favor of Howard & Co.; that by non pros., compromise and settlement, all the attachments earlier in date than that of Howard & Co. have been disposed of; that the insurance company have agreed to pay $ 1500, as loss upon said policy as soon as it is ascertained to whom it can be legally paid, but as this sum is not sufficient to satisfy the pretended [**3]  claim of Howard & Co., and the just demands of the complainants, they have, through their counsel, appealed to the attorney of Mahaney to allow them to plead to the suit of Howard & Co., and defend the same, but he, producing the instructions of his client, Mahaney, refuses this request, and is about to confess a judgment as against Mahaney in favor of Howard & Co. The bill then further charges that the complainants having no remedy at law against this fraud, are compelled to come into equity; that this pretended bond is a fraud; that no consideration ever passed from Smith to Mahaney, nor any from Howard & Co. to Mahaney or Smith, and that it was made for the sole purpose of defeating the honest claims of just creditors of Mahaney.

The bill then calls for answers, but not on oath, and prays for an injunction restraining the defendants from further proceedings upon this bond, and for general relief, and was sworn to by one of the complainants. The court (MARTIN, J.) granted the injunction as prayed, and the defendants having filed their answers, not under oath, in which they deny the fraud charged in the bill, and assert the bona fides of the bond in question, appealed from the [**4]  order granting the injunction.  

DISPOSITION:
Order reversed with costs, and cause remanded.  

HEADNOTES:

Under the provisions of the Code, an answer without oath, when the bill does not require an answer under oath, is sufficient to put the cause at issue, and upon final hearing, and to authorize an appeal from an order granting an injunction, but to sustain a motion to dissolve an injunction the answer must be sworn to, whether the oath be required by the bill or not.

In a bill by a creditor, the charge that the debtor fraudulently executed a bond, without consideration, upon which he was about to confess judgment, for the purpose of defeating his creditors, is sufficient to show jurisdiction in equity, to grant an injunction to restrain proceeding on such bond.

In such a bill the claim of the complainant must be distinctly stated, and exhibits showing the existence of the claim must accompany the bill, in order to satisfy the conscience of the court.  

COUNSEL:
Jos. T. Atkinson, for the appellants, argued that the order should be reversed and the bill dismissed; for that--

1st. The charges are vague, loose and indefinite, and are made in reference to matters of which the individual who made the affidavit to the bill, obviously had no knowledge. 11 Md. Rep., 365, Blondheim vs. Moore. 9 G. & J., 468, Amelung vs. Seekamp.

2nd. There is no sufficient evidence of an indebtedness to the complainants by Mahaney. 12 Md. Rep., 315, Nusbaum & Bowes vs. Stein.

3rd. No circumstances are charged in the bill which, if true, would show fraud in the making of the bond. Fraud is merely charged vaguely and indefinitely.

4th. It is not charged that Howard & Co., had notice of the transactions in reference to the bond, alleged to have taken place between Mahaney and Smith.

5th. The matters charged do not show any probability of irreparable damage to the complainants. It does not appear that they could not obtain payment of their claims out of the property of Mahaney other than in the hands of the Insurance Company. 10 Md. Rep., 500, Uhl vs. Dillon. 1 [**5]  Md. Rep., 536, White vs. Flannaigain. 4 Md. Rep., 98, Green vs. Keen.

6th. The pretended fraud could not be carried on without the connivance and complicity of Howard & Co., and also of the Insurance Company, and this is not charged.

7th. The case does not come within the provisions of the Act of 1835, ch. 380, sec. 2.

E. R. Sprague, for the appellees.

The bill makes a good case for an injunction. The bona fides of the indebtedness of Mahaney to the appellees is distinctly and clearly set forth; the fraud and conspiracy on the part of the appellants to defeat the other honest creditors of Mahaney is charged; the utter absence of any remedy for the appellees in a court of law is fully set out, and this appeal must be decided upon the allegations of the bill itself, without any reference to the answers. 10 Md. Rep., 418, McCann vs. Taylor. But the answers should be treated as a nullity, having been filed without oath, and the appeal dismissed, because an appeal from an order granting an injunction will only lie after answer filed.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*72]  LE GRAND, C. J., delivered the opinion [**6]  of this court.
This is an appeal from an order of the Superior court of Baltimore city, granting an injunction to restrain proceedings at law to recover the amount of a bond.
By the 21st section of the 5th Article of the Code an appeal is allowed, "the answer of the party appealing being 

 [*73]  first filed in the cause." In this case the answers of the appellants are filed, and although they are not verified by affidavit, we think they are a sufficient compliance with the provisions of the Code to authorize an appeal. By the 103rd section of the 16th Article, it is provided, that "it shall not be necessary for any defendant to make oath to his answer, unless required by the complainant." The bill before us does not require the answers to be sworn to. For the purpose of putting the cause at issue, and upon final hearing they are sufficient without oath. But, to sustain a motion for a dissolution of the injunction, it is necessary, under the latter clause of the 103rd section, 16th Article, that the answer should be sworn to, whether the oath be required by the bill or not.
We consider the charge of fraud in the bill all sufficient to show jurisdiction in equity; this is not a [**7]  case of irreparable damage, in which the facts showing the damage are to be set out; it is a case of alleged fraud.
We must, however, reverse the order because the claim of the complainants is not stated with sufficient distinctness, nor are there exhibits accompanying the bill to show that Lazier, or other complainants, are creditors of the defendant Mahaney. "Evidence of their alleged claims ought to have been produced to satisfy the conscience of chancery of their existence." Union Bank of Maryland vs. Poultney & others, 8 Gill & Johns. 332, and Nausbaum & Bowes vs. Stein & others, 12 Md. 318.
Order reversed with costs, and cause remanded. 

102 of 196 DOCUMENTS 

THOMAS R. RICH, and others, vs. CHARLOTTE LEVY and SAMSON LEVY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 74; 1860 Md. LEXIS 48 

June 7, 1860, Decided 

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

Appeal from a decree of the court below dissolving an injunction discharging a receiver, and dismissing the bill filed by the appellants against the appellees, on the 15th of January 1857.

The mortgage bill of sale from Charlotte Levy to Samson Levy, which the bill prays may be declared void, is dated the 15th of December 1856, and was recorded on the 17th of the same month. It recites that: "Whereas, the said Charlotte is justly and bona fide indebted to the said Samson Levy in the full sum of $ 2261.35, for so much money loaned and advanced from time to time by the said Samson to the said Charlotte Levy, and has passed therefor to the said Samson her promissory note bearing even date herewith, and payable six months thereafter, with interest thereon until paid, and to secure the punctual payment of the said note, with the interest thereon, at maturity, has agreed to execute these presents," and conveys to the grantee all the stock of goods con-contained in a store, No. 33 West Baltimore street, consisting of calicoes, ginghams, muslins, shawls, &c., with condition to be void on payment of said note, with interest, at maturity.  [**2]  

The allegations of the bill and answers, and the purport of the evidence, are sufficiently stated in the arguments of counsel, and the following opinion of the court below (KREBS, J.,) delivered upon passing the decree appealed from.

"The complainant alleges in his bill, that the defendant, Charlotte Levy, by falsely representing the extent of her means, induced him to sell her goods in his line of business, on account of which she made him small payments, from time to time, until the 12th of December last, when she owed him $ 1261.19. That she has refused to pay her creditors in whole or in part, and puts them off, with various pretences, and declines giving any truthful account of her affairs; that she has, within a short time before the filing of the bill, been selling her goods, and applying the proceeds to her own use, and to the use of others, without consideration; and thus, and in other ways, is wasting her resources; and that within that period she has sent, and is now sending, large quantities of her goods beyond the reach of her creditors, and has greatly reduced the amount thereof, and is utterly insolvent. He further alleges that, on the 15th of December last,  [**3]  she executed a mortgage of all her stock in trade, to her son Samson Levy, without good consideration therefor, and that it was not made bona fide, but was designed to hinder, delay and defraud her creditors; and that, at the time of the execution thereof, he knew of the fraudulent circumstances attending the same, and in fact had combined with her in her said design. The complainant alleges, further, that he has brought suit against her, but will not be able to obtain judgment and execution against her, before she will have wholly wasted her assets. The bill calls for the answers of the defendants, upon oath, and prays for an injunction, and receiver; and that the said mortgage may be declared void, and that the effects of the said Charlotte may be applied to the payment of her creditors. The injunction was ordered and receiver appointed, and the case has been argued by the solicitors for the respective parties, upon final hearing. Since the decision of the Court of Appeals of this State, in the case of Uhl vs. Dillon, 10 Md. Rep, 500, upon appeal from the Circuit court for Baltimore county, delivered at the last June term, and since this bill was filed, it is perfectly manifest,  [**4]  that if all the facts charged by the complainant, in regard to the manner in which the defendant, Charlotte Levy, was disposing of her goods, and appropriating the proceeds, were admitted, they would not furnish a case for the interposition of this court by injunction, "restraining her in the enjoyment, and power of disposition of her property," upon the application of a creditor like the complainant, "who has not prosecuted his claim to judgment, and execution, nor in any other manner acquired a lien upon his debtor's property." The bill, in that case, alleged, that the defendant was disposing of his entire stock in trade, and his real estate, and collecting the debts due to him, and secreting the same, with intent to defraud his creditors; that he meant, after making his sales, and completing his fraudulent purposes, to abscond, for the purpose of hindering, delaying and defrauding his creditors, &c. The court says: "No authority has been shown to this court, nor can any be produced, entitled to consideration, which sanctions the exercise of the high and extraordinary power of a court of chancery, to interpose by writ of injunction, like the one before us, restraining a debtor in [**5]  the enjoyment and power of disposition of his property." The creditor in that case had acquired no lien upon the debtor's property by judgment and execution, nor otherwise, and the court further says: "Whatever may be the supposed defects of the existing laws of the State, in leaving to the debtor the absolute power of disposing of his property, and leaving the creditor to the slow, and very inadequate remedies now provided, it is solely in the power of the Legislature to correct them. It is not within the power of the chancery courts to stretch their powers beyond the limits of the authorities of the law, for the purpose of remedying such defects." The principles decided by the court in that case, and those which it adopts, decided in the cases to which that refers, satisfy me, that nothing alleged in this bill, if true, would authorise this court to grant the relief for which the complainant prays, except his charges in reference to the mortgage of her stock of goods, executed by the defendant Charlotte to her son Samson. The only question, therefore, that I deem it important to examine is, was this mortgage executed for the purpose of hindering, delaying and defrauding creditors?  [**6]  The bill alleges that it was made without consideration, that it was not bona fide, and that it was executed for that purpose. The answers of the defendants are called for under oath. Charlotte Levy explicitly denies all the allegations in the bill imputing to her fraudulent purposes in regard to her creditors, alleges that it was made for full consideration, that it was bona fide, and not intended to hinder, delay or defraud her creditors. Samson Levy, the other defendant, so far as he has knowledge in reference to the matters charged in the bill, denies them likewise. These answers, therefore, have the effect of strong testimony in favor of the defendants, and unless rebutted by the degree of evidence required by the rule in such cases, must be taken as proof of what they allege. I have carefully examined the evidence adduced by the complainant; it is voluminous, but most of it relates to facts which, for the reasons already stated, I have not deemed it important to consider. Weighing that portion of it which has reference to the matters involved in this inquiry, with the evidence produced by the defendants upon the same points, I cannot avoid the conviction, that the weight of the [**7]  evidence is decidedly in favor of the case made by the defendants in their answers. They deny the allegation in the bill, that the mortgage was given without consideration, and insist that it was executed to secure the payment of money loaned by Samson Levy to his mother, the other defendant, and by way of showing that he had the ability to make the loan, they say, that he had been absent for several years in California, where he had been successful in business and brought with him, on his return, the funds that he lent to her. Did he bring back with him money enough to enable him to make this loan? The first evidence what he did, is the statements of the defendants, which have been made testimony, by being repeated by the witnesses of the complainant, in answer to the interrogatories propounded upon their examination-in-chief.

His first witness says: "that he was told by Laffman Levy, that his brother, Samson Levy, had just returned from California, and had made deposits in the mint; Mr. Samson Levy was present when Laffman made this remark to witness." Thomas McCann, another witness on behalf of the complainant, says: "that he went to see Mrs. Levy and her sons, about the 4th [**8]  of December 1856, at her store, about her account with Mr. Rich; on that occasion Samson Levy, Laffman Levy and their brother Robert Levy, stated to witness, that Samson and Robert Levy had deposited what gold they had brought from California, in the mint at Philadelphia, and that they had the certificate of the deposit of this money in their possession." This witness also states in his examination-in-chief, "that Samson Levy told him, that the mortgage was given for money that he had loaned his mother, and that $ 1500 was money that he had loaned her since his return from California, and that she had paid it away to parties to whom she was indebted." The amount which this witness says they named to him exceeded considerably the sum of money alleged to have been lent. Without referring particularly to the testimony of the defendants' witnesses, it is sufficient for me to say, that if I am to believe their statements they abundantly prove, that Samson Levy remitted considerable sums of money from California to his mother, and advanced to her much larger amounts after his return, and sufficiently remove any doubts that the complainant has been able to create in regard to the consideration [**9]  of that mortgage. I cannot disregard the testimony of these witnesses, without finding in the record that their character for veracity has been duly impeached, either by proof that they are not worthy of belief on their oaths, by exposure of their falsehoods upon cross-examination, or by contradictory evidence. Upon a careful examination of the whole testimony it appears to me that this has not been done. I have, therefore, the weight of this evidence, added to the effect of the sworn answers of the defendants, and the prima facie evidence of the mortgage, and its recital and acknowledgment of the loan of the money, and must, therefore, assume that the mortgage was given upon good and adequate consideration. But the solicitor for the complainant contends very justly, that it must also be bona fide, for if it be made with intent to defraud or defeat creditors, it will be void, although there may be, in the strictest sense, a valuable, nay, an adequate consideration. Story, in his Equity Jurisprudence, sections 369, 370, says: "Cases have repeatedly been decided, in which persons have given a full and fair price for goods, yet being done for the purpose of defeating creditors, the transaction [**10]  has been held fraudulent, and therefore set aside. Thus if a man should know of a judgment and execution, and, with a view to defeat it, should purchase the debtor's goods, it would be void, because the purpose is iniquitous. But cases of this sort are carefully to be distinguished from others, where a sale, or assignment, or other conveyance, merely amounts to giving preference in payment to another creditor, for such a preference is not treated as mala fide, but as merely doing what the law admits to be rightful. A sale, assignment, or other conveyance, is not necessarily fraudulent, because it operates to the prejudice of a particular creditor." Regarding, as I have done, the testimony in this case, as proving, sufficiently, that Samson Levy was a creditor of his mother to the amount for which the mortgage intended to give him a preference, I must consider this transaction between them as embraced within the class of cases just mentioned, and therefore entitled to the character of a bona fide transaction, though it may operate to the prejudice of a particular creditor, or of the creditors generally, because in giving the preference she did nothing more than what the law admits to [**11]  be rightful. But, it is insisted, that there are circumstances in the case that should exclude it from this privileged class. It is said that one of her creditors had acquired a specific lien upon a portion of the goods transferred by his mortgage, by virtue of a judgment against her, and execution levied upon them before the mortgage was executed, which he was induced to surrender by unfair conduct and dealing on the part of the defendants, and immediately she gave this mortgage. It appears, however, from evidence in this record, that the fraud in this transaction, if there was any, has been waived by that creditor, and that he has proceeded to obtain judgment and execution, as stipulated for, in consideration of the said release. But if this were not so, and if there were circumstances attending the mode in which the release of this lien was obtained, which, in the view of a court of equity, would impair its validity, they might furnish grounds for relief to this creditor, by reinstating the lien and declaring the mortgage subject to this particular claim, but it does not appear to me that they would entitle the other creditors to insist that the mortgage should be set aside as void [**12]  under the statute, or this particular creditor to require this to be done, except to the extent of the lien which he had surrendered. And being of opinion, for the reasons which will be more fully stated in the opinion to be filed in the case of Levy vs. Lewis, that this court can give no relief to this judgment creditor, even upon the hypothesis that the release of his lien was obtained unfairly, upon the ground of his waiver of the fraud, if there was any; and being further of opinion, that supposing the release was fairly obtained, the arrangement set forth in complainant's exhibit A, created no equitable lien upon the goods of Mrs. Levy, transferred to her son, Samson, who had full notice of the arrangement, I cannot pass any decree in favor of this creditor, even if the pleadings in this case were such as, with a different view of his rights, would enable me to do so, which I think exceedingly doubtful. This case has been argued by the solicitors of the respective parties with great zeal, force and ability. I have given to it much examination and thought, and my reflections upon it have brought my mind to the views and conclusions above indicated, and I must pass a decree accordingly.  [**13]  "

From the decree so passed the complainants appealed.  

DISPOSITION:
Decree affirmed with costs.  

HEADNOTES:

A bill by a creditor who had not reduced his claim to judgment and execution, nor in any other manner acquired a lien upon his debtor's property, alleged that the debtor is selling his goods and applying the proceeds to his own use, and the use of others without consideration, and thus, and in other ways, is wasting his resources, and is sending large quantities of his goods beyond the reach of his creditors, and is utterly insolvent. HELD:

That these allegations do not make a case for the interposition of a court of equity, to restrain, by injunction, the debtor in the enjoyment and power of disposition of his property.

Where answers are called for and given under oath, denying the allegations of fraud in the bill, they are strong evidence for the defendants, and unless rebutted by the degree of evidence required by the rule in such cases, must be taken as proof of what they allege.

A mortgage to be valid must be bona fide, for if it be made with intent to defraud or defeat creditors, it will be void, though there may be, in the strictest sense, a valuable and adequate consideration.

When a sale, assignment, or other conveyance, merely amounts to giving preference to one creditor over another, it is not to be treated as mala fide, but as merely doing what the law admits to be rightful; it is not necessarily fraudulent because it operates to the prejudice of a particular creditor.  

COUNSEL:
Wm. B. Perine for the appellants:

It is admitted that under the decisions in Uhl vs. Dillon, 10 Md. Rep., 500, and Hubbard vs. Hubbard, 14 Md. Rep., 356, this is not a proper case for an injunction and a receiver, unless the mortgage is void, but if it is void a case of fraud is made out which justifies an injunction and a receiver. The question then is, is this mortgage void?

The bill charges that it was made without a good consideration, without bona fides, and with a view to hinder, delay and defraud the complainant and the other creditors of the grantor. In other words the mortgage is attacked under the Statute of 13 Eliz., ch. 5. It is admitted that prima facie it is, like every other duly executed instrument, valid; and it is for the complainants to show the contrary by satisfactory proof. They may show this by proving that it is not supported by a good consideration, or that it was not executed in good faith, but "to the end, purpose and intent to delay, hinder or defraud creditors." If either proposition be established the conveyance must fall; for even though Samson Levy [**14]  may have advanced every dollar of the money mentioned in the mortgage, yet if it was executed with a view to defeat creditors, it is fraudulent and void because the purpose is iniquitous. Story's Eq., sec. 369. 2 Md. Ch. Dec., 123, Powles vs. Dilley. Ibid., 222, Glenn vs. Randall. 2 Cowp., 434, Cadogan vs. Kennett. 2 Bos. & Pull., 59, Kidd vs. Rawlinson. 4 Bac. Abr., 401. 3 Md. Ch. Dec., 354, Glenn vs. McNeal, et al.; and a fortiori is it void if executed for such a purpose, where only a part of the money set forth in the instrument sought to be sustained, has been advanced--falsus in uno falsus in omnibus--and it cannot even stand in such case as a security pro tanto. 2 H. & G., 261, Strike vs. McDonald. 1 Md. Rep., 470, Waters vs. Dashiell. 7 Gill, 481, Albert & wife vs. Winn & Ross. If void as to any of the creditors of the grantor existing at the time of its execution, it is void as to all and must be vacated in this case, for the bill is filed in behalf of Rich and all other creditors of Charlotte Levy, and prays that the mortgage may be declared void, and that Rich and the other creditors may have the effects of said Charlotte applied to the payment of their debts. In case of [**15]  the avoiding of the mortgage and the sale of the goods, the fund would be retained in equity until all the creditors are notified to come in and assert their claims. 5 G. & J., 451, Birely vs. Staley. 2 H. & J., 220, 221, Strike vs. McDonald.

Applying these principles to the case, the learned counsel argued from the evidence: 1st. That the sum of $ 2261, as set forth in the mortgage, was not advanced and loaned by Samson Levy to Charlotte Levy. He said that the facts proved in the case were inconsistent with the testimony of Laffman Levy, that he saw the money paid. But suppose he did, would that prove it to have been the money of the grantee? There would have been no difficulty in performing the ceremony of paying and receiving the money. 3 Md. Ch. Dec., 351, McNeal vs. Worley, affirmed in 4 Md. Rep., 97; 7 Gill, 377, Richards & wife vs. Swan. He further insisted that the evidence did not show that Samson ever had this money to lend, or any money at all. 2nd. But supposing the whole money was paid by Samson Levy, he then contended, from the evidence, that the mortgage was executed without good faith, and to hinder, delay and defraud creditors. He said that the proof shows that [**16]  Samson was constantly in the store of his mother, the said Charlotte, that he was there when creditors went to press for their claims, that he made propositions to compromise with her creditors for forty cents in the dollar, and that he had access to her books. Indeed his answer admits that she was pressed by her creditors when he made the loan. He knew, therefore, that she was embarrassed and unable to pay her debts, and even though he did not actually know she was insolvent, he knew enough to put him upon inquiry, and if so, he is presumed to have had notice of her insolvency at the time of taking a mortgage of her property, and indeed of all her property, for there is no proof she had any other. 1 Md. Rep., 415, Price vs. McDonald. 10 Md. Rep., 524, General Ins. Co. vs. United States Ins. Co. He is then to be regarded as having knowledge of her insolvent condition at the period of the execution of the mortgage, and of the advance of the alleged loan. The proof shows that the complainant was constantly pressing for the payment of his claim, and that Samson Levy, with his brother, was as constantly promising to pay, and the complainant would have brought suit on his claim at an earlier [**17]  day but for these repeated promises. The agreement to execute the mortgage and the execution of it operated, and was doubtless intended to operate, to the delay of Rich, and the rule of law is that where a result follows from an act, it is to be presumed that the act was done to produce the result. He also insisted that the hindrance and fraud upon creditors became very obvious upon consideration of the other testimony in the cause.

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

If the complainants have any equity, it must rest upon the fact that the mortgage to Samson Levy is fraudulent, either because it was not made for a good consideration, or wanted bona fides in its character. The question then is is this mortgage valid?

It is not enough to charge fraud in a bill, in order to put the defendants upon proof of innocence. The complainants must prove their case, and not start with the idea that fraud is presumed. Now how stand the presumptions here? We have first the mortgage itself, valid upon its face, then the recitals which are prima facie evidence of the facts therein stated, that the loan was made, and that the indebtedness did exist, and lastly, the [**18]  affidavit of the mortgagee that the consideration is true and bona fide as therein stated. It is, therefore, valid, until successfully attacked by proof. Again, the answers are called for under oath, and both defendants swear positively to the consideration and bona fides of the instrument. They answer under oath, and fully, flatly and positively deny all fraud in every shape in which it is alleged in the bill. These answers must be overcome by two witnesses, or one with pregnant circumstances--no amount of circumstantial evidence alone can overcome them--there must be the one witness.

The case starts then with the presumption of honesty in its favor, sustained by the affidavit of the mortgagee made at the time, and by the oaths of the defendants in their answers. Here the defendant, Samson, might have stopped and relied upon the absence of all proof, calculated to cast suspicion on the transaction between himself and his mother, but he has not contented himself with relying upon the absence of proof on the part of the complainants. He has voluntarily assumed the burthen, and proved affirmatively both the valuable consideration and the bona fides.

The learned counsel, then,  [**19]  argued from the evidence, that the amount of mortgage was actually advanced by Samson Levy, and paid over to the creditors of his mother. This, they said, was proved by the testimony of Laffman and Robert Levy, as well as by the receipts and other documentary evidence in the cause. 2nd. That the mortgage was bona fide. If Samson Levy actually advanced the money, for which the mortgage was given, it would seem difficult to comprehend how the actual advance of upwards of $ 2000, for the purpose of paying the debts of his mother, and the acceptance of a mortgage upon a stock of goods not worth, according to all the proof, the amount of the debt secured, can be construed into an effort to hinder, delay or defraud creditors, to whom the money advanced was from time to time paid. The learned Judge of the court below, has very properly drawn the distinction laid down in 1 Story's Eq., secs. 369, 370, between cases of assignment or sale for the purpose of defeating creditors, and cases in which the conveyance merely amounts to giving a preference which the law allows. On this point, and as to the construction of the statute of 13 Eliz., see, also, 7 Adol. & Ellis N. S., 892, Wood vs. Dixie [**20]  in 53 Eng. C. L. Rep., and 35 Eng. Law & Eq., Rep., 261, Lee vs. Green.

For the purpose of testing the correctness of the view presented by the complainants, let us suppose that Mrs. Levy had sold her goods and paid her debts as far as the proceeds went; would this be an effort to hinder, delay or defraud her creditors? If not, what difference can there be between such a course and borrowing a certain amount and applying it to the payment of her debts, and at the same time securing the loan on the very goods for which she was paying? But so far from showing fraud on the part of Samson Levy in taking this mortgage, the evidence clearly shows that, he was willing, at all hazards to himself, to aid his mother in her useless efforts to continue her business, and to settle to the best of her ability, fairly with all her creditors.  

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

OPINIONBY:
TUCK 

OPINION:

 [*85]  TUCK, J., delivered the opinion of this court.
We do not discover any reason for disturbing the decree in this cause, From an examination of the record, we think the complainants failed to show that the conveyance was without consideration, and that it was not [**21]  bona fide.
The learned judge below having expressed his views at length, on those points, and, as we think, correctly, we may rest the affirmance of the decree on the opinion filed by him.
Decree affirmed with costs. 

103 of 196 DOCUMENTS 

HENRY LEWIS, and others, vs. SAMSON LEVY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 85; 1860 Md. LEXIS 49 

June 7, 1860, Decided 

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

The bill in this case, filed on the 15th of January 1857, by the appellee against the appellants, sets up the mortgage of the 15th of December 1856, from Charlotte Levy to the complainant, referred to in the preceding case of Rich, et al., vs. Levy, et al., and alleges that the defendants, Lewis, Bros. & Co., as judgment creditors of said Charlotte, had, on the 13th of January 1857, issued an execution on their judgment and caused the same to be levied on the goods covered by said mortgage in the store of the said Charlotte, and though the sheriff has been expressly notified of this mortgage, he has seized the goods and is about to remove them from the store, all of which proceedings are in violation of the complainant's rights, and tending to his irreparable injury. The bill further avers that, said stock of goods consists of divers and numerous small articles of delicate texture, to wit, silks, velvets, laces, shawls, bonnets, ribbons, cloths, hosiery, et cetera, all of which must necessarily be impaired by the removal thereof, by the sheriff, as aforesaid, and that the same will bring much less than their value, and will be irreparably [**2]  injured by frequent handling and examination should they be exposed to public sale under the execution aforesaid; that the same will be necessarily sold in small parcels to large numbers of purchasers, and complainant will be unable to follow the same in the hands of such purchasers, and establish his property therein; that the said goods, if so sold, under the most favorable circumstances and to the best advantage, are not more than adequate to satisfy the mortgage debt to the complainant; that the debt directed to be made and levied by this execution is no more than $ 681.81, and that the sheriff is proceeding to seize and take the whole of said goods therefor. All which actings, and doings, and proceedings, if not prevented by the interposition of this court, will deprive the complainant of the benefit of the priority he is justly entitled to, in the application of the said property to the payment of the creditors of the said Charlotte, and are contrary to equity and good conscience. The bill then calls for answers, and prays for an injunction to restrain the sheriff and the other defendants from seizing, or removing, or retaining or selling, any of said goods under said execution,  [**3]  and for general relief.

The injunction was issued as prayed and the defendants then filed their answers, in which it is charged that the mortgage to the complainant was fraudulent and void as against the creditors of said Charlotte, and further, that the complainant induced Lewis, Bros. & Co. not to enforce certain judgments against the said Charlotte Levy, which they had procured for a part of their claim, and to prolong the period of payment for the residue, by representing to them that she would not assign away her property, or consent to do anything which would prejudice, or interfere in any way with said claim, and that, notwithstanding this representation and engagement, the complainant, himself, only a few days afterwards, took an assignment of all her goods, which constituted her sole property, and that about thirty days thereafter, when the first instalment of the debt became due, as extended by agreement, and was unpaid, they were for the first time informed of the existence of the mortgage, on asking for payment of such instalment. The answers further deny that the goods would be necessarily impaired by removal or irreparably injured by a public sale, and aver that [**4]  the sheriff has received an ample bond of indemnity from Lewis, Bros. & Co. for his action in the premises.

A motion to dissolve was then made and proof taken on both sides, to be used at the hearing of that motion, and, by agreement, was also considered at the final hearing. This proof need not be stated in full. It appears from it that on the 4th of November 1856, certain of the defendants recovered two judgments before a Justice of the Peace, one for $ 65, and the other for $ 100, against Charlotte Levy, on which executions were issued on the 24th of the same month, which on the day following were levied by the constable, "on the dry goods in the store, No. 33, Baltimore St., occupied by Mrs. Charlotte Levy;" that on the 17th of December 1856, an agreement was entered into between Charlotte Levy and the defendants, her creditors, which recites that certain goods and chattels now in the store of Mrs. Charlotte Levy, No. 33, Market street, have been taken under execution issued upon the above mentioned judgments, and that she was indebted to the same parties in further specified sums, and that they have agreed to cancel said judgments, and also to surrender up to her the evidences [**5]  of indebtedness for the further sums owing by her to them, in consideration of her giving new notes for all of said sums, including the judgments of certain specified amounts, all bearing date the 17th of December 1856, and payable at certain specified periods, and in further consideration of her paying $ 30 cash, and costs on said judgments, and agreeing that in case any of said notes are not paid at maturity, then the said creditors, or their assigns, "shall have the right to enter up judgment against said Charlotte Levy on all said notes, allowing for any unaccrued interest and forthwith to issue execution." These notes, or some of them, not being paid at maturity, the parties, in pursuance of the terms of the above agreement, appeared in the Superior court on the 13th of January 1857, and by consent a case was docketed against the said Charlotte, a declaration and this agreement, and the notes given thereunder, were filed, and on the same day a judgment was rendered against the said Charlotte for $ 681.80, on which the execution restrained by the injunction was issued.

The cause being submitted on final hearing, the court (KREBS, J.) delivered the following opinion:

"This [**6]  cause having been submitted upon the agreement of counsel at final hearing, I have carefully examined the proceedings and considered the arguments of counsel for the respective parties. The property, upon which the execution which has been restrained by the injunction in this case, has been levied, is claimed by the complainant under the mortgage which he files as an exhibit. The defendants charge that this mortgage is fraudulent and void. In the case of Rich et al. vs. Levy, in this court, I have decided, for the reasons stated in the opinion filed therein, that it is a bona fide and valid security. Conceding that it is, there is still a question whether it is not subject to the lien under execution, which was waived by the defendants, upon the ground that this waiver was procured from them by means of fraud and imposition. It is too late for the defendants to take this ground, inasmuch as they have proceeded to obtain judgment and issue execution thereon, according to the stipulations and terms that were agreed upon between the parties to the contract of the 17th of December 1856, and which were the consideration for which the lien was released, and have thereby waived the fraud,  [**7]  if there were any in the transaction. That a party may waive fraud, and confirm a contract which he might have impeached upon that ground, may be regarded as so well settled that it is unnecessary to produce authorities to sustain the position. I will, therefore, pass an order in conformity with the views expressed in this opinion."

An order was then passed making the injunction perpetual, from which the defendants appealed.  

DISPOSITION:
Decree reversed, and bill dismissed with costs.  

HEADNOTES:

A bill for an injunction to restrain proceedings upon an execution levied upon goods in a store claimed by the complainant under title from the party against whom the execution issued, not showing that the property was of such a character, or possessed such peculiar value or interest to the owner, that he could not be adequately compensated by damages at law, is not sufficient to warrant the granting of the injunction. 

COUNSEL:
Wm. B. Perine, for the appellants, after insisting, as in the preceding case, that the mortgage was fraudulent and void, and relying upon other points which need not now be stated, argued:

That the remedy of the complainant is complete and adequate at law. He had his action at law against the sheriff, who is not pretended to be insolvent, and against Hacket who, though charged to be insolvent, is not presumed to be and denies the same, and there is no proof nor attempt to prove him so. Here there is nothing in the nature of the thing itself, (dry goods,) which, like ornamental trees, gives specific or other than a mere pecuniary value. It is not his business as a dry goods dealer that was to be broken [**8]  up. The charge of irreparable damage is also denied by the answers and not sustained by any proof, nor are the facts set forth by him on that point legally sufficient to constitute what the court can pronounce irreparable damage. 4 Gill, 34, Hamilton vs. Ely. 4 Md. Rep., 98, Green vs. Keen. 7 Md. Rep., 408, Shipley vs. Ritter. 11 Md. Rep., 28, Cherry vs. Stein. 1 Md. Ch. Dec., 371, Georges Creek Co. vs. Detmold.

R. Stockett Matthews and Chas. H. Pitts, for the appellee, after insisting that the mortgage was valid, further argued:

That this was a proper case for an injunction. It is always competent to equity to interfere to protect a lien. It is settled that a court of equity will grant an injunction at the instance of the mortgagee of personal chattels, even after the default of the mortgagor, to restrain the latter from an alienation of the property. 12 Md. Rep., 1, Parsons vs. Hughes. 5 G. & J., 314, Clagett vs. Salmon. A judgment creditor, whose judgment is subsequent to the mortgage, stands in the shoes of the mortgagor, and the mortgagee is equally entitled to protection against him. The injunction was also proper to prevent multiplicity of suits, and to prevent irreparable [**9]  mischief.  

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

OPINIONBY:
TUCK 

OPINION:

 [*90]  TUCK, J., delivered the opinion of this court.
The appellants have suggested one ground of error in the present record that we think conclusive of the case; we need not, therefore, express any opinion as to the other points so fully argued.
There is nothing here which distinguishes the case from many others, in which it has been held that an injunction will not lie. The complainant, claiming goods in a store, on which the appellants levied an execution against a third party, under whom the complainant asserts title, seeks the restraining process of equity to prevent their being sold under that writ. The bill does not show that the property was f such a character, or possessed such peculiar value, or interest 

 [*91]  to the owner, that he could not be adequately compensated by damages at law. If this injunction can be maintained, we can scarcely imagine a case where the execution of a judgment at law could not be prevented, and plaintiffs altogether frustrated in the recovery of just demands, even when asserted in the most solemn form.
In the case of Bridges, et al., vs. McKenna, 14 Md. 258, [**10]  relief was granted, but merely on the ground that the complainant, being a feme covert, could obtain redress in a court of equity. But for that reason the bill would have been dismissed.
We do not consider that there is any thing in the record showing that, the defendants below waived their right to proceed against the property in question.
Decree reversed, and bill dismissed with costs. 

104 of 196 DOCUMENTS 

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

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 569; 1860 Md. LEXIS 38 

June 1, 1860, Decided 

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

This is the second appeal in this case. On the first appeal, reported in 8 Md. Rep., 107, the judgment was reversed and the cause remanded. The facts of the case, as presented on the present appeal, are briefly these:

The appellee, on the 19th of September 1843, recovered, by confession, a judgment for $ 1600.85, with interest and costs, against the appellant and John B. and Richard B. Fitzgerald, upon their joint and several promissory notes, to J. J. Speed, endorsed to the plaintiff. On the 6th of September 1851, the plaintiff sued out a scire facias, on this judgment, against all the defendants therein, which was returned "nihil," as to the others, and "made known," to Booth, the appellant, who appeared and pleaded thereto two pleas, in substance as follows:

1st. That on the 21st of October 1843, before issuing the scire facias, the plaintiff caused a fieri facias to be issued on this judgment, which, to the amount of the judgment, was levied upon the goods, chattels, lands and tenements of the defendants; that the sheriff made return thereof with a schedule of the property levied on, which said writ and return are [**2]  now of record in Baltimore county court; and this defendant avers that said writ of fieri facias remains unexecuted, except as before stated, and has not been quashed, countermanded, or further proceeded in, but remains of force and effect.

2nd. That on the 28th of May 1844, before issuing the scire facias, the plaintiff proposed and offered to R. B. Fitzgerald, one of the defendants in the judgment and jointly answerable therein with this defendant, that if he, the said Fitzgerald, would pay twenty per cent. on the amount of the judgment with interest from the 13th of October 1842, and would give him in writing, J. J. Speed's agreement, that no advantage would be taken by him, the said Speed, in any manner with the compromise so proposed with the said Fitzgerald, he, the plaintiff, would release the judgment; and this defendant avers that the proposal so offered by the plaintiff to said Fitzgerald was acceded to by the latter, and in execution thereof said Fitzgerald on the 7th of June 1844, paid to the plaintiff the twenty per cent. upon the judgment, and interest from the 13th of October 1842, and the costs which had accrued thereon, and procured and delivered to the plaintiff [**3]  the agreement in writing of said Speed, that he, the said Speed, would at no time take any advantage in any manner of the compromise so made with said Fitzgerald; and this defendant further avers, that on the 11th of June 1844, said Fitzgerald, with the knowledge of the plaintiff, and in further execution of said agreement, filed the receipt of the plaintiff for the sum so paid by him with the clerk of Baltimore county court, and in said cause, with an entry thereon of its being in full of said judgment against said Fitzgerald, which entry remains wholly unaltered, and was so unaltered at the date of issuing this scire facias; and this defendant avers that the said Speed had been, before the date of the arrangement before stated, the trustee for Emily J. Harper, for whose use this suit is prosecuted, that as such trustee he had loaned of the funds of the said Emily, the money for which this judgment was confessed to the defendants therein named as co-partners in trade, of whom this defendant was one and the said Fitzgerald another; that the note given by said defendants to said Speed for the money so loaned, before the institution of said suit against said defendants, had been endorsed [**4]  over by said Speed to the plaintiff, who had previously thereto been appointed trustee for said Emily in place of said Speed, and that the agreement of said Speed entered into with the plaintiff, not to take advantage of the compromise before stated, was made by him as trustee and in reference to his liability as such trustee, and in no other character or right, and was so received and accepted by the plaintiff.

To these pleas the plaintiff demurred, and the court (LEE, J.) sustained this demurrer and gave judgment thereon in favor of the plaintiff, from which the defendant appealed.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

That a fieri facias had been issued, levied and returned, and not quashed, countermanded or further proceeded in, is a good plea to a scire facias, not on the ground that the levy of an execution amounts to a satisfaction of the judgment, but because a plaintiff is not entitled to have two executions upon the same judgment at the same time.

It is competent for a plaintiff, by taking issue on such a plea, or on replication to show that the execution had been quashed, countermanded or abandoned, or that only part satisfaction has been had under it, and to obtain another execution for the residue, or to maintain a scire facias to revive the judgment.

A release or discharge of one of several defendants in a judgment, and jointly liable thereon, operates as a discharge of all.

A naked receipt for less than the amount due, cannot operate as a discharge or satisfaction of the judgment, but if there be some collateral consideration, sufficient in law to support a contract, then the agreement to relinquish the residue is not nudum pactum; such collateral consideration superadded to the payment of part is a good accord and satisfaction.

Payment of part of a judgment, with an additional, collateral consideration from the defendant in procuring and delivering to the plaintiff the written agreement of a third party, the procuring of which was a burden or inconvenience to the defendant and a possible benefit to the plaintiff, is sufficient to support the latter's agreement to release the judgment.  

COUNSEL:
Geo. M. Gill, for the appellant, argued:

1st. That, before issuing the scire facias, the fieri facias ought to have been countermanded, and the levy under it abandoned. The plaintiff having levied on property of sufficient value, must give this up, or cause it to be sold, and the remedy be thereby exhausted, before a scire facias can issue. The first plea is in the form given in 2 Harr. Ent., 526, and 2 Ev. Harr., 112. In 2 Tidd., 1059, it is said that a levy on a defendant's goods, enough to pay the debt, discharges the defendant, and may be pleaded in bar to an action [**5]  of debt on the judgment. The demurrer to this plea admits that this levy was never countermanded or abandoned.

2nd. The second plea shows satisfaction of the judgment against R. B. Fitzgerald, who paid, it is true, a less sum than the amount, but who, in addition to that payment, obtained the written agreement of Speed, the first trustee, that he would take no advantage, as trustee, of this compromise. To show that where something collateral is done, which may, by possibility, be a benefit to the party receiving a smaller sum in satisfaction of a larger one, the agreement to release is binding, see 5 East., 232, Fitch vs. Sutton; 11 East., 390, Steinman vs. Magnus; 20 Johns., 78, Boyd vs. Hitchcock; 6 Cranch., 253, Sheehy vs. Mandeville; Forsyth on Compromise, 17.

3rd. The judgment in this case being against partners or parties jointly liable, satisfaction by one is satisfaction by all, and a release to one, without reservation as against the others, is a release to all. Smith's Mercantile Law, 97. 4 Adol., & Ellis, 675, Nicholson vs. Revill. 6 Term Rep., 525, Clark vs. Clement. 3 Nev. & Perry, 226, Field vs. Robins.

T. Parkin Scott, for the appellee, argued:

1st.  [**6]  That the levying of the fieri facias was not, in law, a satisfaction of the judgment, and the return of the writ and subsequent arrangement between the parties, show that the levy was abandoned. 8 Md. Rep., 107. The fieri facias was not "outstanding" when the scire facias issued, but had been returned before. This was not an attempt to have two outstanding executions upon the same judgment at one and the same time, but an effort to revive a judgment, that it might be executed; a total suspension of proceedings for three years rendered a scire facias necessary. 7 G. & J., 357, Mullikin vs. Duvall. 4 Simons, 313, Williams vs. Craddock. Again, the plea alleges the levy was on goods and chattels, lands and tenements, but the return shows it was levied on land alone, and the return being alleged by the plea to be of record, the schedule is incorporated into the plea, which shows land alone to have been levied on. Now a record cannot be contradicted by a plea, and pleading the record is pleading the whole record. 2 H. & G., 82, Birckhead vs. Saunders. A demurrer admits all facts properly pleaded; it admits in this case what is here pleaded, the record, but not that part of the plea which [**7]  contradicts the record.

2nd. That the partial payments made were not received, or intended to be, in extinguishment of the judgment, but only in relief of the party paying with a salvo; that no release was executed, and that payment of part is not satisfaction of the whole. 5 G. & J., 356, Clagett vs. Salmon. 7 Md. Rep., 116, Jones vs. Ricketts. 8 Md. Rep., 107, Campbell vs. Booth. 11 G. & J., 11, Moale vs. Hollins. 30 Eng. Law & Eq. Rep., 157, Price vs. Barker.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*573]  BARTOL, J., delivered the opinion of this court:
This case was before this court, on the plaintiff's appeal, at December term 1855, and will be found reported in 8 Md. 107, when this court reversed the judgment of the court below, and remanded the cause. On the former appeal it was decided that the matters of defence alleged and relied on by the defendant, could not avail in support of a motion to quash the writ of scire facias, but if available at all must be presented by plea. When the case was remanded to the Superior Court, the defendant filed two pleas, to which the plaintiff demurred generally,  [**8]  and that court having given judgment, on the demurrer, in favor of the plaintiff, the case is now brought here on appeal by the defendant below, and presents for our consideration the question of the sufficiency of the defendant's pleas.
The first plea alleges that the plaintiff, before issuing the scire ficias in the case, caused to be issued a fieri facias on the judgment, which was levied upon the goods, chattels, lands and tenements of the defendants, that the sheriff made return thereof, together with a schedule of the property levied upon, that the said writ of fieri facias was no further executed, and that the same has not been quashed, countermanded, nor further proceeded in, but remains in full force and effect, &c.

 [*574]  We think this is a good plea to the scire facias, not upon the ground that the levy of an execution amounts to a satisfaction of the judgment, but because the plaintiff is not entitled to have two executions upon the same judgment at the same time.
It would be competent for the plaintiff, by taking issue on the plea or on replication, to show that the execution has been quashed, countermanded or abandoned, or that only part satisfaction [**9]  has been had under it, and to obtain another execution for the residue, or maintain a scire facias for the renewal of the judgment. See Sasscer vs. Walker's Executors, 5 G. & J. 102. Green vs. Burke, 23 Wend. 490. 3 G. & J. 384. 3 Gill, 346.
We are also of opinion that the matters alleged in the second plea are a valid defence to the scire facias, as showing an accord and satisfaction of the judgment by R. B. Fitzgerald, and that it was error in the court below to sustain the demurrer to the second plea.
The judgment was recovered against John B. Fitzgerald, Richard B. Fitzgerald, and the appellant, who were co-partners liable jointly on the judgment. A release or discharge of one of the defendants would operate as a discharge of all. This principle is so well settled as to require no authorities to be cited in its support. If the matters alleged in the plea are sufficient in law to operate a discharge of R. B. Fitzgerald from all liability upon the judgment, the inevitable consequence is, that it cannot be enforced against the appellant; for the just and sufficient reason, that he ought not to be [**10]  compelled to pay the money, without being entitled to claim contribution from the other defendants, which he cannot do if they have been discharged from the judgment by the act of the plaintiff.
When this case was before this court on the former appeal, several of the facts, which are stated in the second plea, were relied upon by the defendant, in support of his motion to quash; it being then contended that the compromise made with R. B. Fitzgerald, by the plaintiff, the payment by him of the sum of $ 308.03, and costs, the receipt therefor 

 [*575]  acknowledging it to be in full of the judgment against him, the filing of the receipt in the clerk's office, and the entry upon the docket, amounted in law to a satisfaction of the judgment against him. In the aspect, however, in which the case was then presented, it appeared that J. J. Speed, Esq., was the attorney of the defendants upon the record, and accompanying the compromise and forming a part of it was an agreement by Mr. Speed, "that he would take no advantage of the compromise," thus made with R. B. Fitzgerald. It did not appear in what character Mr. Speed made the agreement. It was argued by the plaintiff's counsel that [**11]  in making the agreement Mr. Speed acted as attorney for all the defendants; there was nothing to show the contrary; and this court decided that the compromise did not of itself amount to a satisfaction of the judgment; and could not be taken advantage of by the defendants, in the face of an agreement by their counsel, that no such advantage should be taken of it. The defence now relied on, presents a very different case. It is alleged in the plea, and admitted by the demurrer, "that Mr. Speed had been before the date of the arrangement, the trustee for Emily J. Harper, for whose use this suit is prosecuted, that as such trustee he had loaned of the funds of the said Emily J. Harper, the money for which the judgment was confessed to the defendants, as co-partners in trade, of which the appellant was one, and the said Fitzgerald another, that the note given by said defendants to said Speed for the money so lent, before the institution of the suit, had been endorsed over by Speed to the plaintiff, (who had previously thereto been appointed trustee for Emily J. Harper, in lieu and stead of said Speed,) and that the agreement of said Speed, entered into with the plaintiff, not to take advantage [**12]  of the compromise, was made by him as such trustee, and in reference to his liability as such trustee, and in no other character or right, and as such was received and accepted by the plaintiff," &c.
Although the law is well settled, that a mere naked receipt for a sum of money, which is less than the amount due, could not operate as a discharge or satisfaction of the judgment, 

 [*576]  (8 Md. Rep., 115; 7 Md. Rep., 116; 4 G. & J., 305; 5 Gill, 189,) yet it is equally well settled, that if in addition to the part payment, there be some other collateral consideration, such as in law is sufficient to support a contract, then the agreement to relinquish the residue is not nudum pactum. Such collateral consideration, superadded to the payment of part, is a good accord and satisfaction. 5 East., 231. 11 East., 390.  14 Wend., 116. 20 Johns. 76. 4 G. & J. 309, 310.
In this case the plea alleges such additional collateral consideration from Fitzgerald, in procuring and delivering to the plaintiff the written agreement of Mr. Speed, whereby his liability [**13]  to his cestui que trust was continued, notwithstanding the relinquishment of the claim against the debtors in the judgment. Here was a burden and inconvenience to Fitzgerald, in procuring the agreement, and also a possible benefit to the plaintiff.
Judgment reversed. 

105 of 196 DOCUMENTS 

GERARD GOVER, and others, vs. JOHN H. BARNES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 576; 1860 Md. LEXIS 39 

June 1, 1860, Decided 

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

This appeal is taken from a judgment of the court below, (LEE, J.,) quashing an attachment on warrant issued on the 30th of October 1857, at the instance of the appellants against the appellee, as an absconding debtor. The facts of the case are sufficiently stated in the opinion of this court.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The court may entertain a motion to quash an attachment for matters dehors the proceedings, hear evidence in relation thereto, and decide the motion, without the intervention of a jury.  

COUNSEL:
Geo. W. Dobbin, for the appellee, argued:

1st. That it is competent for a party against whom an attachment on warrant has been issued, to move to quash the same for reasons apparent on the face of the proceedings, or for reasons dehors shown in proof upon reasonable opportunity to the plaintiff to produce testimony on the subject. 2 Md. Rep., 334, Lambden vs. Bowie.

2nd. That the court properly quashed the attachment upon the evidence given in the cause.

No argument was made on the part of the appellant.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*577]  ECCLESTON, J., delivered the opinion of this court.
This appeal is taken from the Superior Court of Baltimore City in the case of an attachment on warrant issued at the instance of Gerard [**2]  Gover and others, trading as Josiah Lee & Co., against John H. Barnes, as an absconding debtor.
The defendant filed a petition, under oath, alleging that at the time of issuing the attachment, he had never run away and fled from justice, and removed from his place of abode to defraud his creditors; alleging, also, that when the affidavit was made for the attachment, and when the attachment issued, he was in the city of Baltimore, and attending to his lawful business in the most public manner, and in the most public places, was seen by and conversed with many citizens of Baltimore, had, during business hours, passed several times into the banking-house of the plaintiffs, and the office of the sheriff of Baltimore city. Which petition prays that the attachment may be quashed.
Afterwards the counsel for the defendant filed a motion to quash the attachment, assigning reasons why the motion should be granted.
Again, by leave of the court, the counsel for the defendant filed additional reasons in support of the motion.
The first, as well as the additional reasons, allege that, at 

 [*578]  the time of issuing the attachment, the defendant was not an absconding debtor.
The counsel [**3]  for the plaintiffs resisted the motion to quash, upon the following grounds:
"1st. Because said defendant has not appeared in the said action against him.
"2nd. Because the matters of fact averred in said reasons, and said additional reasons, are proper for trial and decision by a jury, upon issues properly joined between the parties, and ought not to be tried by the court here, when the matters of fact so averred are not admitted, but, as in this case, are denied to be true."
Whereupon the court decided that the reasons in support of the motion to quash, appeared to be sufficient in law to bar the issuing of the attachment.
After which, at the request of the plaintiffs' counsel, the judge signed what is called in the record, a bill of exceptions, stating the above mentioned proceedings, also stating that the defendant, being about to offer testimony to the court in support of his motion, and in proof of the reasons for the same, the plaintiffs, by their counsel, objected to the judge of the court deciding the motion, and especially the matters of fact stated in said reasons. The bill of exceptions likewise states that the court overruled the plaintiffs' objection, and decided [**4]  that the said motion should be heard and decided by the court, without issues joined, and without any jury trial, and required the plaintiffs to answer the said motion of the defendant. It is further stated: "And the plaintiffs, desiring to have the opportunity of reviewing this decision, respectfully asked the court to sign a memorandum of the decision in this behalf, which is accordingly done."
Testimony in support of the motion to quash, and also against it, being then given, the court "quashed the attachment, on the ground that the defendant was a citizen of the State, and had not run away or fled from justice, or removed from his place of abode, with intent thereby to injure or defraud his creditors." To which decision and judgment the plaintiffs excepted.

 [*579]  The testimony given on both sides, and the decision of the court, are set forth in a bill of exceptions signed by the judge, at the request of the plaintiffs' counsel.
That the court had authority to entertain the motion to quash, to hear the evidence in relation thereto, and decide the motion, without the intervention of a jury, is so fully sustained by the case of Lambden vs. Bowie, 2 Md. 334, [**5]  that we consider it unnecessary to enter into any reasoning on the subject.
We have examined the testimony, and do not perceive any error in the decision of the court thereon, in which it is held that the attachment should be quashed, on the ground that the defendant, Barnes, was, at the time of issuing the attachment, a citizen of this State, and not an absconding debtor.
Judgment affirmed. 

106 of 196 DOCUMENTS 

GEORGE H. WETTER vs. RICHARD S. HARDESTY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 11; 1860 Md. LEXIS 42 

June 1, 1860, Decided 

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

Appeal from an order of the court below (LEE, J.) dissolving an injunction which had been granted upon a bill filed on the 13th of November 1858, by the appellant against the appellee. The object of the bill, and its allegations and those of the answer, as well as the purport of the testimony taken in the case, are, so far as necessary to an understanding of the opinion of this court, sufficiently stated therein.  

DISPOSITION:
Order affirmed, with costs.  

HEADNOTES:

If the form a transaction takes be given to it for the purpose of avoiding the statute against usury, when, in fact, it was a loan at an usurious rate of interest, it must be regarded as but a shift and device condemned by the law.

It matters not what may be the character of the instruments which evidence that of the transaction; its nature, if corrupt, may be shown by extrinsic evidence.

But a court cannot annul a contract prima facie a contract of sale and good, upon the mere conjecture of usury; the evidence establishing the usury must be full; something more direct and explicit than mere conjecture is needed.  

COUNSEL:
Daniel M. Thomas, for the appellant, argued for a reversal of the order:

1st. Because the fraud and imposition practiced upon the appellant in the matter of Pratt's mortgage is sufficiently established, and the contract to that extent ought to be rescinded. 1 Johns. Ch. Rep., 536, Eagleson vs. Shotwell. 1 Brown's Ch. Rep., 149, Barker vs. Vansommer. 2 Parsons on Cont., 387.

2nd. Because the appellee became possessed of the ground rents under a contract for a loan, not a sale, and the contract in this respect ought to be corrected, so as to make these ground rents stand as a security merely for the return of the money actually loaned with legal interest. 4 Camp.  [**2]  , 1, Titford vs. Chambers. 9 Pet., 442 to 459, Scott vs. Lloyd. 3 H. & J., 109, Tyson vs. Rickard. Act of 1704, ch. 69. 1 Brown's Ch. Rep., 149, Barker vs. Vansommer.

3rd. That Ward's mortgage is so connected with the rest of the transaction as to be affected by the fraud and usury, and the appellee ought not to be allowed to get the benefit of that mortgage while he refuses to do equity in respect to the ground rents. 2 Parsons on Cont. 390. 9 Pet., 460, Scott vs. Lloyd.

Thos. S. Alexander and Cornelius McLean, for the appellee, argued:

1st. That the whole transaction was a sale and exchange, and not a loan.

2nd. That the sale of the ground rents was made at the current sales of the market, and that they were not desirable investments even at those rates.

3rd. That as to Pratt's mortgage the denial in the answer as to Hardesty's agreement and representations, the proof of the examination of the property by Wetter, the fact that he was warned by Mr. Williams that he would not rely on Pratt, and that the warning was communicated to Hardesty himself, and the proved rate at which Hardesty had purchased, in the absence of any proof of weakness or necessity on the [**3]  part of Wetter, show that transaction to be above suspicion, no matter what may be the value of the property.

4th. As to the cases in which usury has been inferred from the sales of property which turned out to be below the value at which they were taken, proof has always existed that one party was deceived by the other who had superior information; but that no case has ever, in the absence of some one or other of these features, and where each party had the same chance of investigation and knowledge, with equal wit, and not under the pressure of extreme necessity, gone so far as to charge fraud and usury upon a party who may have made a good bargain in favor of one who may have made a bad one.

Note.--The propositions on either side were sought to be sustained chiefly by comments upon the evidence, and a more extended report of the arguments is thought to be unnecessary.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*13]  LE GRAND, C. J., delivered the opinion of this court:
This appeal is from an order of the Superior court of Baltimore city dissolving an injunction issued to restrain the appellee --who was defendant below--from [**4]  proceeding to foreclose a mortgage and collect certain ground rents claimed to 

 [*14]  be due him by the appellant. The bill of complaint asks, the reformation and correction of the contract under which the appellee became possessed of the mortgage and ground rents, so as to make all things conform to the allegations of the bill. The grounds on which the application is made are, that of usury, and that of fraudulent concealment and misrepresentation.
The answer of the defendant denies all usury and fraud.
The case made by the bill is in substance this:--the complainant being much in want of money to relieve him from a pressing demand, made application to the defendant for a loan of three thousand dollars. The purpose to which the money was to be applied was the payment of a mortgage of that amount, from himself and wife, to one Ward. That the proposition was declined by the defendant, except on the condition, that the amount of the proposed loan should be increased to twelve thousand dollars, and negotiable paper taken for a large proportion of such loan instead of cash; that after some negotiation, and finding that he could not effect a loan from the defendant on more [**5]  favorable terms, he concluded with him, on or about the first of April 1857, an arrangement, whereby the defendant was to pay in full and take from Ward an assignment of his three thousand dollar mortgage, and give to the complainant, in cash, seventeen hundred dollars; a lot of ground in the city of Baltimore valued at one thousand dollars, to be taken as so much cash; negotiable paper of sundry persons, two thousand three hundred dollars, and the notes of a certain William Pratt, secured by mortgage, four thousand dollars, making a total of twelve thousand dollars. For three thousand of the amount Ward's assigned mortgage was to be the security, and for the residue of nine thousand dollars, with ten per cent. interest thereon, two ground rents were created, one for four hundred and the other for five hundred dollars per annum; that by the terms of an agreement between the parties, the defendant obligated himself, at any time within five years, on the payment to him of nine thousand dollars--he in the meantime receiving the annual rents of nine hundred dollars--to re-convey and assign 

 [*15]  to the complainant, the property conveyed and assigned to him by the defendant, and [**6]  on which the rents were imposed. The bill alleges, in regard to the notes of Pratt, (some of which had fallen due and remained unpaid,) that there was no likelihood of any of them being paid, and that the defendant had been applied to and requested to accept said notes as payment of the amounts then due to him by the complainant, but, that the defendant declined and refused to so receive them, insisting that the complainants took the notes at his own risk, as a loan of that much cash for which he is responsible to the defendant, although such notes should prove wholly worthless, and that the latter has threatened, and is about to foreclose, the mortgage to Ward assigned to him, and to enforce the payment of the ground rents.
The gist of the bill is, that the whole transaction is fraudulent, usurious and void, and that it ought to be cancelled and set aside, and the defendant should account for what he has received, and the complainant pay the amount; that until this be done, the proceedings of the defendant to enforce payment ought to be enjoined.
There ought not to be doubt as to the legal principles which should govern the decision of this case. If the form the transaction took [**7]  was given to it for the purpose of avoiding the statute against usury, when, in point of fact, it was a loan at an usurious rate of interest, it must be regarded as but a shift and device, condemned by the law. It matters not what may be the character of the instruments which evidence that of the transaction, its true nature, if corrupt, may be shown by extrinsic evidence. Scott vs. Lloyd, 9 Peters 418, where the principal cases on the subject are fully and clearly examined by Chief Justice Marshall.
This being so, the inquiry is, was the transaction, so far as it relates to the ground rents, one of loan or a bona fide sale and lease? This can only be answered by the evidence. So far as the face of the papers show anything, there is nothing to invalidate the transaction, and if, therefore, there be anything in the case which does so, it must be found in the parol proof.

 [*16]  A careful examination of the evidence has failed to demonstrate to our satisfaction, that the transaction was an usurious contract for the loan of money and securities. Although there are circumstances developed in the evidence which might reasonably enough justify a suspicion [**8]  that the real character of the transaction was that imputed to it by the bill of complaint, nevertheless, a court of justice ought not to feel itself authorized to annul a contract prima facie good, upon mere conjecture; something more direct and explicit is needed for such a decree. In this case, we think, there is a want of that fulness of proof which is essential to the relief sought by the complainant.
In addition to the positive denial of the defendant of the allegations of frauds and usury preferred against him, it is shown by the evidence of the witness Brooke and the witness Williams, that the transaction, so far as the ground rents were concerned, was understood, by both parties to it, to be a sale and not a loan, and also, that the mortgaged premises of Dr. Pratt were examined by the complainant, and finally deemed by him sufficient security. The testimony of both Brooke and Hammond shows that the ground rents were taken at rates which were equal to those for which others in the neighborhood, and of similar character, were sold. And, although there is evidence to show that the property of Dr. Pratt was far below, in value, what it was represented to be by the defendant,  [**9]  there is, on the other hand, testimony to prove it to be worth a much larger sum. To say the least of it, the value of the property is left in doubt by the conflicting estimates of the different witnesses who testified in regard to it. Taken all together--however disastrious to the expectations of the complainant the property proved to be--it is entirely too inconclusive and unsatisfactory to justify the impeachment of the integrity and truthfulness of the defendant. Something stronger than it is necessary to place upon him the brand of infamy. Looking to the whole case, as it has been exposed to our view, we are forced to the conclusion, that it is but another instance, added to the thousands which had preceded it, of venture resulting in the disappointment 

 [*17]  of the hopes of him who made it; a case to be regretted, but not one to be altered by the ascription of fraud and deceit to the other party. Entertaining these views, we affirm the order dissolving the injunction.
Order affirmed, with costs. 

107 of 196 DOCUMENTS 

THE BANK OF COMMERCE vs. WM. F. DALRYMPLE, JAS. H. CARTER and GERARD GOVER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 17; 1860 Md. LEXIS 43 

June 1, 1860, Decided 

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

Assumpsit, brought on the 28th of April 1857, by the appellees against the appellant, to recover damages for the alleged refusal of the defendant to issue and deliver to the plaintiffs one of what were known as "Extra Dividend Orders," of the Baltimore and Ohio Railroad Company. The pleadings and facts of the case are fully stated in the opinion of this court. In the course of the trial, four exceptions were taken by the defendant to the rulings of the court below, (LEE, J.,) but, as this court has decided the case upon the ground, that the injunction prohibiting the railroad company from issuing the certificates of indebtedness for the extra dividend was sufficient to relieve the defendant from liability to answer, in damages, for refusing to give the order demanded by the plaintiffs, a statement of these several exceptions is unnessessary, no decision being given upon any of them, except the second, which is fully set out in the opinion of this court. The verdict and judgment were in favor of the plaintiffs for $ 7500 damages and costs, and the defendant appealed.  

DISPOSITION:
Judgment reversed without a procedendo.  

HEADNOTES:

In an action to recover damages for the refusal of the defendant to deliver to the plaintiffs an "extra dividend order," for the dividend on certain shares of stock of the Baltimore and Ohio Railroad Company which the plaintiffs had pledged to the defendant as security against the casual overdrawing of their accounts, the record of a suit by the city of Baltimore against the railroad company was offered in evidence by the defendant, for the purpose of showing that, in that case, an injunction had been granted, and is still in force, prohibiting the company from issuing the certificates of indebtedness, or extra dividend, provided for by the dividend resolution of the company. HELD:

1st. That this record was admissible for the purpose for which it was offered; as the injunction, in express terms, was designed to operate upon this extra dividend, the admissibility of the injunction cannot be denied upon the ground that it was res inter alios.

2nd. This injunction having been issued and served before the extra dividend was payable, and such extra dividend orders, separate from the stock, not being known as common articles of sale and purchase in the stock market until after that date, there was no obligation on the defendant to deliver such an order, and the refusal to do so gave the plaintiffs no right of action.

3rd. The injunction having been issued and served before the extra dividend could be demanded, under the terms of the dividend resolution, and not having yet been dissolved, the dividend was not such a legal increment to the stock, as gave the plaintiffs a cause of action therefor against the defendant as bailee of the stock.

Where a party sells goods on credit, without any promise on the part of the purchaser to give his note for the amount of the purchase, if the vendor subsequently demands such a note, he could not enforce such demand by any proceeding either in a court of law or equity.  

COUNSEL:
John H. Thomas and [**2]  S. Teackle Wallis, for the appellants, argued:

That the court erred in refusing to permit the appellant to give in evidence the injunction record mentioned in the 2nd exception. It was offered merely to show the granting and pendency of the injunction set forth in it, and was the only competent evidence by which those facts could be established. 1 Greenlf. on Ev. secs. 527, 537. 14 Md. Rep., 86, Key vs. Dent, Admr. of Wood. If, therefore, the granting and pendency of the injunction, as shown by it, were facts relevant to the issue on trial, it should have been allowed to go to the jury to establish them. These facts were relevant, it is submitted, and for several conclusive reasons, viz:

Under the resolution of the rail road board, declaring the extra dividend, the certificates of indebtedness, in which the dividend was to be paid, were not issuable until the 12th of January 1857; until they should be issued, the holders of stock carrying the dividend might sell it with the dividend on, but were entitled to, and could have no specific evidences of, the dividend indebtedness. The injunction issued on the 10th of January 1857, prohibited the company and its officers from issuing [**3]  the certificates, which could not, therefore, pending the injunction, be legally put forth. The sale of extra dividend orders, was a stock-jobbing device to circumvent the injunction--a sale of a mere possibility, and illegal, besides. The orders were not sold in the market till the 17th of January 1857, five days after the granting of the injunction; they were not accepted by the rail road company, or in any way accredited by their treasurer, and were mere orders on that officer to deliver a sum named out of a certificate of indebtedness, which the injunction had made it, for the time, unlawful on his part to issue. If the injunction should be dissolved they might be available, if it should be made perpetual they would be worthless. Their purchase or sale, therefore, was nothing but a stock-jobbing wager on the contingencies of a pending judicial controversy--a bet by the buyer that the injunction will be dissolved, and by the seller that it will be continued, and consequently, against public policy, and unlawful. 4 Blackst. Com., 135. 16 East., 158, Gilbert vs. Sykes. 1 Leigh's N. P., 26 and note (m.) 5 Mees. & Wels., 80, Evans vs. Jones. 2 Parsons on Cont., 262, 264. 2 Robinson's [**4]  Practice, 316, et seq. 4 H. & McH., 284, Wroth vs. Johnson. Act of 1813 ch. 84. 8 Gill, 72, Merrick vs. Bank of Metropolis. 16 How., 319, 334, Marshall vs. Balto. & Ohio Railroad Co. 9 Md. Rep., 532, 533, Gough vs. Pratt. 12 Louisiana Ann. Rep., 618, Barham vs. Livingston. Nothing but proof of the injunction could establish this illegality, and such proof was, therefore, necessarily relevant and most material.

In another point of view proof of the issuing and pendency of the injunction was equally relevant and important. Mr. Harris, one of the appellees' witnesses, in testifying as to a fall in the price of the stock of the Baltimore and Ohio Railroad company, sold with the extra dividend on, referred to the issuing of the injunction, in question, as the cause of the fall. Whether that statement by the witness, uncalled for by the appellees' counsel, afforded a ground for the appellant to insist, that the injunction had been brought by the appellees before the court, and the record thereby made ipso facto admissible, may be disputed. But it seems clear, that on Mr. Harris' showing the injunction affected the value of the dividend orders, that fact, of itself, rendered proof of [**5]  the injunction admissible on the question of value, which furnished the criterion of damages. Whether, therefore, the fact came out on the examination of Mr. Harris, by the appellees, or as a matter of voluntary statement by the witness, it was a relevant fact, and the record showing what the injunction was, became relevant along with it. The appellant could have elicited the fact from the witness and have followed it up, or explained it by proof of the injunction record, as they did under their 3rd exception.

But even without reference to the testimony of Mr. Harris, and under the 2nd exception only, the relevancy and importance of the proof in controversy, on the question of damages, would seem indisputable. If the injunction be made perpetual, the dividend orders will turn out to have been worthless in fact and in law. If it be dissolved, it is apparent that they must be worth more than there is any proof of their ever having been sold for, which case, in the refusal of Mr. Alnutt to deliver the order required, will have been a benefit to the appellees instead of an injury. Until the final decision, therefore, upon the injunction, it is impossible to tell whether the appellees [**6]  have any cause of complaint, and the proof of the issuing and pendency of the injunction, is therefore, vital, not only as to the quantum of damage, but as to the very fact of damage at all. It would show that this action is premature, at all events, even if possibly maintainable hereafter. The question here is, not whether the orders might not have been sold if given, but whether the appellant or Alnutt committed a wrong, for which it or he is responsible in damages for refusing to give them. The appellees in their prayers assert, that the standard of damages is the market value of the orders, at the time of the refusal to deliver on demand made. But there was no market value of the orders until after the injunction was obtained; the injunction was, therefore, admissible, because it was issued before the criterion of damages, set up in the appellees' prayers had any existence at all, and must have materially affected the question of damages. Again, if the rail road company had no power to issue these orders, if they were in fact fraudulent, illegal and of no value, and could not be enforced, could the appellees recover for a refusal to give them such orders? The bill on which this [**7]  injunction was issued, charges the dividend to be fraudulent and illegal, and that it was declared in violation of the charter of the company, and the appellee had a right to have this fact before the jury. The injunction forbid the issuing of the certificates of indebtedness mentioned in the dividend resolution. The stock-jobbers then get up a commodity called "Dividend Orders," and sell them in the market. What was this but a device to evade the injunction, to make that a saleable article which the injunction forbid to be issued? Suppose the appellees had applied to a court of equity to compel the bank to give them these orders, would not the court have told them to wait till the question of the legality of the orders was first decided? Suppose an order of this kind had been stolen, could an indictment have been preferred for stealing it till this question was first decided? Suppose any one, having an interest in the result of a suit, should apply to a party pending such suit, to give some muniment of title or order by which he was to realise the proceeds of suit when terminated, and the party should refuse, could it be contended that an action for damages would lie for such refusal?  [**8]  

Whether Alnutt or the bank be charged with the duties and subject to the liabilities of pledgee, is immaterial, for we insist that there is no obligation on either of them, to execute and deliver the dividend order in question. It is admitted, that the stock pledged was duly retransferred on the 1st of January 1857, when demanded; it is also admitted, that a cash dividend declared thereupon while the stock stood in Alnutt's name, was duly collected by him, and passed at once to the credit of the appellees. If the certificates of indebtedness, which were intended to represent the extra dividend had been issuable, while the stock stood as Alnutt's, it would have been his duty to receive them, and to pass them over when the purposes of the pledge were at an end. But until they were issuable, the bailee had no duty to discharge in regard to them. He had no obligation to do more than he offered to do, that is, collect them and hand them over when the time should arrive for doing so. He was not bound to give a written evidence of such obligation in advance, in order to enable the pledgors to dispose of that written evidence in the market. If a vendor sells a horse on credit, without [**9]  any promise on the part of the vendee to give his note, a subsequent demand by the vendor for such a note, so that it might be sold in the market, could not be enforced either at law or in equity, and there is no obligation on the vendee to give it. Much less was Alnutt bound to give a written paper, not known to the law nor to usage, devised for the temporary purposes of the stock board. The fact that such writing could have been sold in the market imposed no liability on him for refusing to give it, because his responsibility depended on his own obligations, and not upon the profit which the appellees could have made by selling a written acknowledgment of them. If the dividend declared had been a cash dividend, payable on the 12th of January 1857, Alnutt would not have been required to give an order in advance for it, on retransferring the stock on the 1st of January. He would have been strictly within the line of his duty, if, as soon as it was payable he gave the order for it, or collected it and paid it over. Why should a stock dividend create any difference in principle?

Nor was the giving of the order demanded at all necessary, in point of fact, to give the appellees the [**10]  benefit of the extra dividend, as a saleable article, in advance of its maturity. It was proven by Mr. Harris, a witness for the appellees, that in all sales of the orders in question, whether separately or in conjunction with stock, the orders were accepted on the faith of the vendors, referred to no particular stock, required no acceptance or acknowledgment on the part of the treasurer of the rail road company. This proof is uncontradicted. It was, therefore, perfectly competent for the appellees, as the owners of the stock, and entitled to the dividend, to issue their own orders for the dividend upon it, and sell them without any embarrassment or impediment. They could have done so as well, to all intents and purposes, as Alnutt or the bank.

Wm. A. Fisher and Wm. H. Norris for the appellees.

The record in the case of the City of Baltimore vs. the Railroad company, offered in evidence as stated in the second bill of exceptions, was properly rejected, because it was not only res inter alios acta but irrelevant.

The five hundred shares of the stock of the railroad company was pledged by the appellees to the bank as security for any casual overdrawing of their account [**11]  with the bank, and this pledge was accepted by the bank. It was made in August 1856, and the stock was transferred on the books of the railroad company to the name of Alnutt, the president of the bank, and the certificates of the stock were made out in his name and delivered to him, and by him accepted and deposited among the securities of the bank. The legal title to this stock was thus in the bank, or in Alnutt, its president, and so remained from the time of the pledge till the 31st of December 1856, when the purposes of the pledge were accomplished and the bailment was at an end. During all this time the relation of bailor and bailee existed between the appellees and the bank, and the law of bailments is very clear, that the pawnor is entitled to a return of the article pledged with all its increments. Story on Bailments, secs. 339, 343. 2 Kent., 578, 579. Edwards on Bailment, 268. Story on Sales, secs. 184, 185. Now, on the 17th of December 1856, whilst this stock was so pledged to the bank, the railroad company declared an extra dividend of thirty per cent. on its capital stock, payable on or after the 12th of January 1857, to all stockholders owning stock on the 22nd of December [**12]  1856, in certificates of indebtedness, bearing interest, and convertible into stock on the 1st of June 1862. The bank being the owner, or having the legal title to this stock on the 22nd of December 1856, was the party to whom, according to the terms of the dividend resolution, these certificates were to be issued. On the 1st of January 1857, the appellees, having settled their account with the bank, and terminated the bailment, demanded a return of this stock with an order upon the treasurer of the railroad company for the certificates of indebtedness issuable under the dividend resolution. The stock was returned, but the bank then, and from time to time afterwards, until the 26th of February 1857, refused to give the order for this dividend, and the question is, have the appellees any right of action against the bank for this refusal?

The proof shows that sales of stock, made after the dividend was declared, and before it was payable, carried the dividend or not, as the parties might agree, and that sales of the stock, carrying the dividend, were made between the 1st and 17th of January, at prices ranging from 84 to 88 1/2, whilst without the dividend it was sold at 71, and [**13]  that on the 17th of January 1857, the orders for the dividend, separate from the stock, were sold, and from that time forward became common articles of sale in the market. The prices during January being 50 and upwards, but falling in February to 30, and at the time of the trial of this case, to from 9 to 11 per cent. Now, it is said, on the part of the appellant, that we have no cause of action against the bank, because an injunction was issued on the 10th of January 1857, at the suit of the city of Baltimore against the railroad company, prohibiting the issuing of the certificates of indebtedness provided for in the dividend resolution. To this we answer:

1st. That our right of action accrued on the 1st of January 1857, when our demand was made and when the dividend was actually declared, and prior to the issuing of the injunction. The breach of the contract of bailment was before the injunction, for the authorities already cited, show, that it is the duty of the bailee to restore the pledge with all its increments, and that the return must be made at the time of demand, and in the only reasonable mode in which the particular articles can be dclivered. And the proof shows that [**14]  the usual and customary mode of making delivery of these orders, was in the form in which they appear in the record, and the refusal by the bank to deliver was not based upon objection to any particular form of the order.

2nd. That the injunction did not prevent the sale of these orders; they were proper subjects of sale, notwithstanding the injunction, and could have been, and others of the same character were, sold subject to it. "It is sufficient that the thing contracted for has a potential existence; and a single hope or expectation of means founded on a right in esse may be the object of sale, as the next cast of a fisherman's net, or fruits, or animals not yet in existence, or the good will of a trade. But a mere possibility or contingency, not coupled with any interest in, or growing out of property, as a grant of the wool of the sheep the grantor may thereafter buy, or the expectancy of an heir-apparent is void as a sale." 2 Kent., 468, and note e. Story on Sales, secs. 184, 185, 186. 4 H. & J., 358, Ridgely vs. Riggs. We could have sold a dividend on this stock not yet declared, for it would have had a potential existence within the meaning of these authorities, much [**15]  more could we have sold a dividend actually declared, the payment of which only was restrained by an injunction. Suppose a party is, or claims to be, entitled to a fund in court, the payment of which is enjoined, can he not sell his interest in that fund, subject to the injunction? Such a sale, it is submitted, would neither be against the policy of the law, nor a wager contract. In the case of a wager contract the interest is created by, and springs out of, the wager, whereas, here the interest was created before the injunction by the possession of the stock upon which the dividend enjoined was declared.

3rd. Nor is this injunction record admissible on the question of damages, for the purpose of showing a decline in the market value of these orders. The suit is for indemnification for refusal to deliver the orders, and in such a case the standard of damages is the market value of the orders. What that value was could be proved only by evidence of what they sold for in the market. What caused their decline is immaterial to the only question before the jury, which was, their market value?

4th. Nor is there any force in the objection, that we could have issued the orders, and [**16]  therefore, that no damage was done us by the refusel of the bank to do so. We could not have issued the orders, for the stock did not stand in our names on the 22nd of December 1856, when, by the terms of the dividend resolution, it must have so stood in order to entitle us to the dividend, or to issue orders for it. At that time it stood in the name of Alnutt, as president of the bank, and the orders must come from him or the bank. 2 Eng. Railway & Canal Cases, 37, Hebblewhite vs. M'Morine.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*26]  ECCLESTON, J., delivered the opinion of this court.
This action of assumpsit was instituted by the appellees against the appellant, to recover damages for the alleged refusal of the latter to issue and deliver to the former, one of those orders which were known as "Extra Dividend Orders" of the Baltimore and Ohio Railroad Company.
The nar. contains six common money counts. The plea is, that the defendant did not promise as alleged.
Then follow three agreements:
First. "That the within plea shall be considered as filed subsequent to the nar. and notice, and all errors of pleading [**17]  on both sides waived."
Second. "That the plaintiffs in this case may, under the 

 [*27]  declaration in this case, recover any amount they could under any nar., in assumpsit, and that the defendant may give in evidence any defence they could have taken by special plea."
Third. "That this case is to be tried as if issue had been formally joined on the record."
The plaintiffs, as partners, were engaged in business as stock and money brokers, under the firm name of Josiah Lee & Co., and during the year 1856, kept their account with the defendant, the Bank of Commerce, of which James W. Alnutt, was then, and has ever since continued to be, president. For the purpose of securing the defendant against any loss, from the casual overdrawing of their account at any time, the plaintiffs, on the 25th of August 1856, voluntarily transferred upon the books of the Baltimore and Ohio Railroad Company, to the name of "James W. Alnutt, president," five hundred shares of the capital stock of the said company, and delivered the certificates thereof, so made out, to Alnutt, which he accepted, and deposited among the securities of the bank. On the 17th of December 1856, the president [**18]  and directors of said railroad passed the following resolutions:
"Whereas, there has been appropriated by the Baltimore and Ohio Railroad Company, from time to time, the sum of three millions of dollars and upwards, of the net earnings of the main stem of the road, to the purpose of construction, with the intention, in conformity with the practice of the company, of paying the same to the stockholders in the shape of a dividend, at such time as they might deem judicious, therefore, be it
"Resolved, That an extra dividend of thirty per cent. be declared on the stock of the company, to be paid on or after the 12th day of January next, to all stockholders owning stock on the 22nd day of December 1856, in certificates of indebtedness, bearing an interest from the first day of June 1857, of six per cent. per annum, payable half-yearly on the first day of December and June in each year, until the first day of June 1862, inclusive, after which, the said certificates 

 [*28]  of indebtedness shall be converted into the stock of the company at par.
"Resolved, That for the payment of the dividend aforesaid, the transfer books be closed on the 22nd instant, and remain closed until the 12th [**19]  day of January next."
On the 31st of December 1856, the appellees dissolved their copartnership, and settled their account with the bank, leaving nothing due the bank.
On the 1st of January 1857, they demanded of Alnutt to deliver up to them the said shares of stock, and to give them, likewise, an order on the treasurer of said railroad company for the certificates of indebtedness corresponding thereto, under the aforesaid resolutions of the 17th of December 1856. Alnutt redelivered the certificates of stock which had been pledged, duly endorsed and re-assigned, but refused to give any written order, as demanded, for the extra dividend, saying that he would collect it, if it was ever paid, and hand it over to the plaintiffs. In October 1856, a cash dividend had been declared upon this stock, while it stood in Alnutt's name, which he collected and immediately passed to the credit of the appellees with the bank.
Proof was given that on more than one occasion, the plaintiffs renewed their demand upon Alnutt for a written order, as aforesaid, for the said extra dividend, which he continued to refuse; whereupon, on the 24th of February 1857, by a letter addressed to the president and [**20]  directors of the bank, the plaintiffs gave notice that the said president and directors would be held responsible for damages resulting from their refusal to transfer, by order or otherwise, the said extra dividend.
When this letter was presented to Alnutt, he said he would attend to it, but did not want the orders of the bank hawked about the streets. On the 26th of February 1857, James W. Alnutt, president, enclosed to the appellees an order for the extra dividend, stating that the Bank of Commerce had no interest in it or the stock, the same being the property of the appellees. This order was returned the same day, the appellees refusing to receive it, unless they were paid the difference 

 [*29]  between the then market price of it, and that for which such orders were selling on the 1st of January previous.
The order sent by the defendant to the appellees was as follows:
"BANK OF COMMERCE,
Baltimore, February 26th, 1857.
Joshua J. Atkinson, Esq'r, Treasurer of the Baltimore and Ohio Railroad Company:
Please deliver to Messrs. Josiah Lee & Co., the certificate of indebtedness for the amount of dividend on the five hundred shares of the capital stock of the Baltimore [**21]  and Ohio Railroad Company, standing in the name of James W. Alnutt, president, on the twenty-second day of December last, as represented by certificates Nos. 20582, 20583, 20584, 20588. All of which bear date the twenty-fifty day of August last, and were on the first day of January, eighteen hundred and fifty-seven, assigned and transferred to the said Josiah Lee & Co., by endorsement; said stock being their property. Bank of Commerce having no interest whatever in the said stock or certificate of indebtedness is hereby made in no way responsible or liable for the certificate of indebtedness embraced in this order.
JAMES W. ALNUTT, Presid't."
The following letter is that which was sent by the appellees when the above order was returned to the defendant:

"James W. Alnutt, Esq'r, President.
Bank of Commerce.
Sir,--Yours of 26th inst. is received with an order for the dividend of the 22nd December last on 500 shares Baltimore and Ohio Railroad stock which we herewith return, but will receive again, on condition, that you pay us the difference between the market price of said dividend at the time you refused to deliver it and the present market price. In the event of your [**22]  refusal to do this we hereby repeat we shall hold you responsible for any loss sustained in consequence of your action in the case.
Respectfully yours, &c.,
JOSIAH LEE & CO.,
Baltimore, February 26th, '57."

 [*30]  The proof shows that in January 1857, orders on the treasurer of the Baltimore and Ohio Railroad Company, for certificates of indebtedness on the extra dividend, under its resolutions, became common articles of sale and purchase in the Baltimore stock market, separate from the stock on which the certificates were to be issued, the first sale being made on the 17th of that month, at 50 per cent. of their par value.
In making sales of such orders at the stock market, whether separately, or in conjunction with the stock itself, it was not necessary that such orders should have been previously presented to or noted by the treasurer of the company--said orders did not refer to any particular named stock, and were taken on the good faith of the party giving them. This was the case even when the orders were in fact delivered; but when time contracts were made, there was no delivery of any orders at the time of the contracts, nor any required or made until the maturity of [**23]  the contracts.
The treasurer of the railroad company never accepted said orders when presented to him, as many of them were, and made no note or memorandum of any kind, and entered into no engagement of any kind binding the company to the holders, and would not have done so in any case.
According to the testimony of Thomas Coulson, such orders were sold at the following rates on the dollar:

________________________________________________________________________________

Jan'y	17,	1857,	at	50	cents.	
  "	20,	"	"	50 1/4	"	
  "	22 & 24,	"	"	55	"	
  "	26	"	"	54	"	
  "	27	"	"	51 1/2	"	
Feb'y	24	"	"	30 1/2	"	
  "	25	"	"	30	"	
  "	26	"	"	30 1/2	"	
  "	27	"	"	30 1/2	"	
  "	28	"	"	30	"	
________________________________________________________________________________

At the time of the trial of this case the orders were worth from 9 to 11 per cent.
Fifty shares of the stock in question, which had been re-transferred by Alnutt to the plaintiffs, were sold and delivered by 

 [*31]  them to Fisher on the 9th of March 1857, at $ 82 per share, carrying the extra dividend, and orders for the extra dividend were supplied from another source.
All sales of this railroad stock, prior to the declaration of the extra dividend in question, made at the Board, carried [**24]  the extra dividend, but if made after, they carried it or not as the parties might agree in the particular case.
Although the first sales of the orders, separate from the stock, were made on the 17th of January 1857, there were, nevertheless, sundry sales of stock carrying the extra dividend, made from the 1st to the 17th of the same month, at prices ranging from 84 to 88 1/2 cents on the dollar, and on the 13th of that month stock was sold without the extra dividend at 71 cents.
The plaintiffs offered to prove, that sundry time contracts, by them previously made, for the delivery of Baltimore and Ohio Rail Road stock, with the extra dividend on, matured between the 22nd of December 1856 and the 13th of January following, while the transfer books were closed, to the amount of 1000 shares in all, and that if they had been in possession of the dividend orders, here in controversy, they might have used them in fulfilling said contracts in part on January 13th, 1857, when the transfer books were re-opened, and delivery under said contracts was to be made. The evidence was offered for the purpose of proving damages sustained by the plaintiffs in consequence of the non-delivery to them [**25]  of the dividend orders demanded as herein before stated.
To the admissibility of which evidence the defendant objected, but the court overruled the objection, and permitted it to go to the jury for the purpose for which it was offered; which ruling constitutes the ground of the defendant's first exception.
It appears from the testimony of the witness, Coulson, that the letter of the 24th of February 1857, was delivered by him on that day, to James W. Alnutt, President of the Bank of Commerce, at the Banking House; and that during the interview between them, Alnutt said nothing about the 

 [*32]  kind of dividend order he might sign, nor did he raise any objection on account of any particular form of order. Whereupon the defendant admitted that no particular form of order was demanded by the plaintiffs, and that said Alnutt's refusal to accede to the several demands of the plaintiffs, was not placed upon the ground of his objection to any particular form.
The defendant offered in evidence a duly authenticated and sufficient transcript of the record in the case of the Mayor and City Council of Baltimore against the Baltimore and Ohio Rail Road company, in the Circuit court for Baltimore [**26]  city, not as evidence of any of the matters and things therein alleged and averred, but merely to show that the said court, in the said cause, did, on the 10th of January 1857, issue an injunction, prohibiting the Baltimore and Ohio Rail Road company, its officers and servants, from issuing, or causing to be issued, the certificates of indebtedness or extra dividend, provided for by the resolution of the president and directors of said company, given in evidence by the plaintiffs, and that injunction had never since been dissolved. The plaintiffs' counsel objected to this evidence, which objection being sustained by the court, the defendant excepted.
This decision, we think, is erroneous. The injunction should have been admitted as proper evidence for the purpose for which it was offered.
The resolutions of the company, under which the extra dividend is claimed, provided that the same was to be paid "on or after the 12th day of January, then next," **** "in certificates of indebtedness, bearing an interest," &c.
On the 10th of January 1857, two days before the certificates could be demanded of the company, under their resolutions, the injunction referred to was issued and served;  [**27]  and had not been dissolved, when this case was tried.
Under such circumstances, it has been contended by the appellant's counsel, that there never was any obligation upon Alnutt, or upon the bank, to deliver to the appellees the orders demanded by them, and, therefore, the refusal to deliver the same gave the appellees no right of action.

 [*33]  It would seem to be a clear proposition, that prior to the 12th of January 1857, no stockholder could have demanded of the rail road company a "certificate of indebtedness" on account of the extra dividend, or any evidence of, or security for, the said dividend.
Prior to that date, what have subsequently been called "extra dividend orders" of the Baltimore and Ohio Rail Road Company, and now in question, were not known as having any separate existence, or as being understood to be legal entities. They were not known as common articles of sale and purchase in the Baltimore stock market. The first sale of them, as separate from the "certificates of indebtedness" for the extra dividend, provided for in the resolutions of the rail road company, is proved to have been made on the 17th of January 1857. Thus it appears the injunction was issued [**28]  and served before any stockholder had a right to demand of the company the "certificates of indebtedness," before the "extra dividend orders" had become common articles of sale and purchase in the stock market, before the first separate sale of such orders, and indeed, before they became known or were considered as legal entities, either at the stock board or elsewhere; at least, there is no proof to the contrary.
The injunction was the act of a court of competent jurisdiction on the subject, and it directly prohibited the company from issuing the certificates of indebtedness for the extra dividend, and, as a consequence of it, no legal demand for them could be made. It, in effect, was sufficient to relieve the defendant from liability to answer in damages for refusing to give the orders demanded by the plaintiffs.
There has been no contract between the present parties for the sale and purchase of these orders, stipulating for their delivery at any time. The claim urged by the appellees is based upon a voluntary deposit of the stock with the defendant, or with "James W. Alnutt, President," which stock has been returned. They insist, that the deposit was in the nature of a bailment,  [**29]  and that when the principal or corpus was returned they were also entitled to the extra dividend as an increment, and therefore, they had a legal demand for 

 [*34]  the dividend orders. But before the extra dividend could be demanded, under the terms of the resolutions declaring the same, the injunction was issued and served, and has not yet been dissolved. It is believed, therefore, that there was no such legal increment in existence as to give the appellees a cause of action against the defendant.
There can be no doubt that if A sell goods to B, on credit, without any promise on his part to give a note for the amount of the purchase, if A should, subsequently, demand a note, he could not enforce such demand by any proceeding either in a court of law, or of equity. There would seem to have been no more obligation on the defendant in this case, to have given the order demanded by the plaintiffs.
In the order sent by the defendant to the plaintiffs, on the 26th of February 1857, the treasurer of the rail road company was authorised to deliver to the plaintiffs the certificate of indebtedness for the extra dividend, in question, in which order the defendant disclaimed any interest,  [**30]  whatever, in the stock or certificate of indebtedness, therein mentioned.
Inasmuch as the injunction, in express terms, was designed to operate directly upon this extra dividend, the admissibility of the injunction in evidence, cannot be denied upon the ground of its being res inter alios acta.
For the purpose of showing the propriety of admitting it as evidence, we would refer to Key vs. Dent, Adm'r of Wood, 14 Md. 86, 98, and the authorities there cited.
If the views which have been presented in this opinion are correct--and we think they are--the judgment should be reversed, without a procedendo; and therefore, the other questions which have been urged in argument do not require consideration.
This decision is to be understood as made with reference to the circumstances existing at the institution of the suit, and not as intimating any opinion in regard to the rights of the plaintiffs below, in case the injunction should be dissolved.
Judgment reversed without a procedendo. 

108 of 196 DOCUMENTS 

JOS. BAUGHER and JEREMIAH FISHER, surviving partners of CHAS. ALLWINE, vs. MARY WILKINS and JOS. WILKINS, JR., surviving Executors of JOS. WILKINS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 35; 1860 Md. LEXIS 44 

June 1, 1860, Decided 

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

Trespass on the case, brought on the 26th of November 1852, by the appellants against the appellees and John Glenn, as executors of Jos. Wilkins. Glenn died before the trial, and the suit was prosecuted against the other defendants. The declaration filed against all the original defendants, as executors, contained four counts, in substance as follows:

1st. That the plaintiffs and their deceased partner, trading as Baugher, Fisher & Allwine, were lawfully in possession of a certain warehouse and store, in which they carried on the business of selling merchandize, and that the defendants pulled down and destroyed, and caused and procured to be pulled down and destroyed, the side wall of said store and warehouse, thereby injuring the goods of the plaintiffs and rendering their building unfit for their trade or habitation.

2nd. That the plaintiffs were in possession of said premises, as tenants of the defendants, and that the latter permitted and allowed the said side wall to be pulled down and destroyed.

3rd. That the plaintiffs were in possession of the premises, as tenants of the defendants, and that the latter allowed [**2]  the said side wall to be pulled down and destroyed and another to be erected in its stead, extending through a portion of said warehouse, thereby narrowing it in extent and diminishing the area of it.

4th. That Joseph Wilkins, in his life time, had leased said premises for two years from the 15th of January 1850, and that the plaintiffs had became entitled to the residue of the term of said lease; that Wilkins died leaving the defendants the executors and trustees of said premises, with power to receive the rents accruing under said lease; that the defendants, as such executors and trustees, demanded and received from the plaintiffs the rent as it became due, and recognized and treated them as the lawful tenants of the premises under said lease, and the plaintiffs recognized and treated the defendants as entitled to receive said rents; that the defendants disregarding the relation existing between them, as such executors and trustees, and the plaintiffs, as such lawful tenants, entered into a contract with Israel Griffith, giving him permission and privilege to erect and build, within the limits of said house, a wall of a defined and prescribed location, which contemplated and [**3]  required said wall to encroach upon said warehouse, as previously enjoyed by the plaintiffs; and that Griffith, in virtue of such permission and privilege, caused to be pulled down a part of the walls by which said building had before been enclosed, and that Griffith did erect and build a warehouse and wall in conformity with said agreement, and in accordance with the permission and privilege so given him, which wall encroached upon the said premises during the period of the said lease.

Plea non cul.

Exception. The evidence offered on both sides is sufficiently stated in the arguments of counsel and the opinion of this court. The plaintiffs offered four prayers, which it is not necessary to set out at length. The defendants then offered five prayers, of which the first only need be stated, viz:

1st. That the defendants, in their capacity of executors of Jos. Wilkins, could not render his estate liable to damages by any unlawful acts such as are alleged in the declaration, and the plaintiffs cannot therefore recover against them as such executors in this action.

The plaintiffs admitted the law of the defendants' first prayer to be correct, and the same was granted [**4]  by consent. The court (LEE, J.) then rejected all the prayers of the plaintiffs, and granted all those of the defendants, except the fifth, which was rejected. The plaintiffs excepted to the refusal to grant their prayers, and to the granting of those of the defendants, and the verdict and judgment being against them, appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A lessee under one who has the fee in the demised premises, is entitled to the quiet enjoyment of them during his term, and there is an implied covenant to that effect, on the part of the lessor, where none is expressed, if the contrary be not stated.

But this implication does not extend to indemnity against injury or disturbance from the acts of a mere trespasser; it is confined to the acts of the lessor, and all claiming through or under, or in trust for him, and those of persons having lawful title.

An agreement authorising a party-wall to be raised and continued in a straight line with the present division wall, does not give any permission or privilege either to pull down such party-wall or to diminish the area of the adjoining building.

For injuries resulting to the tenants of the adjoining building from pulling down such a wall and diminishing their possessions, their remedy is against the person who did these acts, and not against their landlords who entered into such an agreement with that person.

Where parties are sued as executors but are not liable as such, still, if they have done the wrong complained of, they are liable in their individual capacities, and judgment may be given against them in such capacities, though the declaration is against them as executors only.

If an instruction be granted by consent, that consent makes the instruction the law of the case when brought before the appellate court on appeal.  

COUNSEL:
Chas. H. Pitts and Oliver Miller, for the appellants, argued:

1st. That although the appellees are named in the writ and declaration as executors, judgment might properly have been rendered against them in their natural character, as in that character their acts rendered them liable. 7 H. & J., 25, Curtis' Excr., vs. Bank of Somerset. Ibid., 3, Ayres vs. Toland. 2 Selden, 168, Merritt vs. Seaman. 11 Georgia, 658, Shorter vs Hargroves. 11 Grattan, 300, Fitzhugh vs. Fitzhugh. 8 Humph., 19, Braden vs. Hollingsworth. 3 Ala., 205, Peters vs. Heydenfeldt.

2nd. There is abundant evidence in the case that the appellants were the tenants of the appellees, under the parol lease from Jos. Wilkins, of which the appellants were assignees, and under which they held and occupied the warehouse in question. They paid the accruing rent to the [**5]  appellees, and the latter accepted it and gave receipts therefor, and this is enough to show that the relation of landlord and tenant existed between them. Under this lease the appellants were entitled to the quiet enjoyment of the demised premises during the term, as against the acts of the lessors, (the appellees,) and all parties claiming through or under them, this being an implied covenant in every such lease. Archbold's Landlord & Tenant, 276, 277, in 53 Law Lib., 254, 255. 12 Mees. & Wels. 85, Hart vs. Windsor.

3rd. Assuming that Griffith had no right to take down this wall, save that derived from the permission under his agreement with the appellees, then the pulling it down was a wrongful and tortious interference with the appellants' rights, a disturbance of their quiet possession and enjoyment of the premises, and for the injury resulting to them therefrom, it is insisted they had good cause of action against the appellees. By the agreement made with Griffith, and the permission and privilege thereby given to him by the appellees, the injury of which the appellants complain, was expressly permitted and sanctioned by the appellees, and they are just as much responsible [**6]  therefor as if they had themselves employed workmen to do the same thing. For a valuable consideration they permitted Griffith to do these acts which resulted in our injury, and he was for this purpose their agent and employee. But it is said this agreement did not authorise the taking down of this wall. But the permission is, to have "the said party-wall raised to the height of four stories and to have the same continued in a straight line with the present division wall to within three feet of the alley in the rear," and by looking at the plat it will be seen that it was impossible for this wall to be thus raised and continued in a straight line with the present division wall between the other parts of the adjoining buildings, without taking it down and building it up anew from the foundation. The permission to raise and continue in a straight line, was, therefore, a permission to pull down and rebuild. That such was the construction of the agreement, is also further proved by the appellees' own evidence. Dixon and Carson, their witnesses, say "that it was not until the upper part of the wall, C. D. E. had been taken down, and they had discovered the necessity of taking it all down,  [**7]  that they and Mr. Griffith thought of applying to the executors of Joseph Wilkins, deceased, for their consent, and it was not until that time that they did so apply to said executors." The agreement was, therefore, applied for and made, in view of the necessity of taking this whole wall down, and can it be doubted that all the parties to it understood perfectly well, that it was to be taken down and a new one built on a new foundation, so as to make the whole line between the two premises a straight line? If this be so, it is clear, that the taking down of this wall and the building up a new one, abridging the area of these premises held by the appellants as tenants, was the act of the appellees, their landlords, for which, and for all injury resulting to the tenants therefrom, the landlords are responsible, under the implied covenant for quiet enjoyment in the lease.

4th. There is proof, from which the jury might have found this to be a party-wall, or, at least, that the occupiers of the premises held by the appellants, had an easement therein. It is true, there is evidence, on the part of the appellees, that the wall stood entirely on Griffith's lot, but in opposition to this,  [**8]  there is the agreement in which Griffith admits, under his hand and seal, that it was a party-wall, standing equally on both lots, and it was for the jury to decide this question of fact, about which there was conflicting evidence. The appellants further proved, "that the wall marked C. D. E., had been standing for twenty-one years prior to said pulling down, and a part of it had been used as the western wall of the back building of said warehouse, No. 285, during said period, by the owners thereof, and those claiming under them as aforesaid." In either event, that is, whether this was a party-wall, or the plaintiffs had an easement therein, Griffith had no lawful right to pull it down, nor had the appellees lawful right to permit him to do so, and especially without notice to the plaintiffs of the intention to do so. It was a trespass, for which the plaintiffs had their remedy against those who did the act and those who authorised it to be done The modern authorities are full to the point, that, in the absence of legislation conferring it, there is no right to take such a wall down for the mere purpose of improving the adjoining premises--necessity alone confers upon the owner of [**9]  such premises the right to take down and rebuild a party wall. 4 Johns. Ch. Rep., 334, Campbell vs. Mesier. 15 New York, 601, Partridge vs. Gilbert, et al. 4 Duer, 53, Eno vs. Del Vecchio. 5 Duer, 553, Webster vs. Stevens. 6 Duer, 17, Eno vs. Del Vecchio.

John H. Thomas and S. Teackle Wallis, for the appellees, argued:

1st. That the evidence shows that all of the wall which was torn down was exclusively upon Griffith's lot, and it was, therefore, his property, and he had the right to remove and replace it. The owner of adjoining property could only have an easement in it, or the right to use a new wall when built as he had used the old one. Such easement could only be acquired by grant, or by uninterrupted enjoyment for a period sufficient to establish it by prescription. 3 Kent, 437, 442, 443. 4 Sandf. Ch. Rep., 72, Wolfe vs. Frost. 2 Barb. Ch. Rep., 231, Pitkin vs. Long Island Rail Road Co. 1 G. & J., 366, Hays vs. Richardson. 11 Md. Rep., 340, Richardson vs. Milburn. There was no evidence that the part of the wall which was taken down was not entirely the property of Griffith; that any one had acquired even an easement therein, and that he was not entitled to take it down [**10]  when he pleased, without regard to the appellants or appellees. He might have recovered it in ejectment, and had, of course, a right to take it down quietly, if he could; he might have built a new wall on his own premises and have refused to the appellants or appellees the right even to build against it. Even if this was a party-wall, he would have been entitled to take it down for the improvement of his own premises, if he used reasonable care, and this whether necessary or not; if the necessity be established, the co-owners were bound to contribute to the expense of rebuilding it. 3 Kent, 437. 4 Johns. Ch. Rep., 336, 341, Campbell vs. Mesier. Toylor's Landlord & Tenant, 117, 118. The necessity of rebuilding the wall in question, is shown by the witnesses on both sides. Every precaution was taken to prevent injury to the appellants. Even if this had not been done, Griffith, and not the appellees, would have been responsible. They only assented to his doing what he had a right to do without their consent, and stipulated that proper precautions for the protection of the appellants should be used. If he had no right, the assent of the appellees could not any more than that of a stranger,  [**11]  give it as against the appellants, and could impose on the appellees no liability. It was the mere waiver of any objection on their part. As executors, they had nothing to do with the realty, and their consent gave Griffith no right and imposed on them no liability whatever.

2nd. But even if it is conceded that the relation of landlord and tenant existed between these parties, still the appellees were not responsible. This responsibility is sought to be deduced by the agreement made with Griffith. This agreement, however, gave him no right to pull down this wall. It simply gave him permission to have the party-wall raised to the height of four stories, and to continue it in a straight line to the rear. This is not a permission to take down and rebuild, and Griffith, if it be conceded he had no right to take the wall down, obtained no such right from this agreement, and he was, therefore, a mere trespasser, for whose acts the lessors were not responsible to their tenants. Archbold's Landlord & Tenant, 283. 7 Md. Rep., 337, Hess vs. Newcomer. 6 Mees. & Wels., 458, Granger vs. Collins.

3rd. There is no proof that the relation of landlord and tenant existed between these parties.  [**12]  At the time of the injury complained of, the appellants held under a lease from Joseph Wilkin's in his lifetime, with which his executors, as such, had nothing to do. The will is not in evidence to show that they had any power over the realty, and there was no privity between these parties.

4th. The appellees were sued in their representative capacity, and not personally in their natural capacities. The writ, declaration and every averment therein, are against them as executors. Their contract, which is the foundation of the action against them, could derive no efficacy except from their character as executors. Now, by the assent to the granting of the appellees' first prayer, it becomes the law of the case, and it is conceded there can be no recovery against them as executors, and it is submitted that under the pleadings in this case, there can be no recovery against them in their individual capacities. 2 Wms. Excrs., 1464, 1469, 1507. 10 Bing., 51, Aspinall vs. Wake, in 25 Eng. C. L. Rep., 25.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*42]  LE GRAND, C. J., delivered the opinion of this court:
This is an action on [**13]  the case instituted by the appellants against the appellees and John Glenn. The death of Glenn having been suggested before the trial of the cause, the proceedings were stayed as against him and prosecuted against the others.
The declaration against all the original defendants was as executors, and contained four counts. The substance of these, it is agreed, is correctly stated by the appellees in their brief. (Ante., 35, 36.)
The appellants asked four instructions, all of which were refused; and the appellees for five instructions, the first of which was admitted to be correct, the second, third and fourth were granted, and the fifth rejected by the court. The questions presented by the rejection of the appellants' prayers, and the granting of the second, third and fourth prayers of the appellees, we are now to decide upon the evidence and pleadings in the cause.
At the trial evidence was given that the appellants, together with their deceased partner, Allwine, were the tenants and occupants, as assignees of a parol lease from the testator of the appellees, of warehouse, No. 285, Baltimore street, in the city of Baltimore; and that whilst the tenancy existed, Israel Griffith [**14]  was the owner of a lot and warehouse adjoining, there being, to a limited extent, a party-wall, common to both warehouses. On the other hand, evidence was given that the wall which was taken down was wholly on the lot of Griffith.

 [*43]  The responsibility of the appellees is derived principally from a paper signed and sealed by the executors of Joseph Wilkins, deceased, of date the 29th day of April 1851. This paper, after reciting that Israel Griffith was the owner of a lot on the south-east corner of Baltimore and Sharp streets, adjoining a lot of ground belonging to the estate of Joseph Wilkins, deceased, and that there was, to a certain limited extent, between the two lots, and equally on both, a party-wall, gives "permission and privilege unto the said Israel Griffith, his heirs, executors, administrators or assigns, to have the said party-wall raised to the height of four stories, and to have the same continued in a straight line with the present division wall to within three feet of the alley in the rear." This permission and privilege was given on the following conditions: 1st. That Griffith should furnish the materials and have the work done without any charge to the [**15]  executors or the estate of Joseph Wilkins. 2nd. That the trustees and executors, or heirs of Joseph Wilkins, or their successors or assigns, should have the privilege of using and building into the party-wall, throughout its extent in length and height, and to the depth of four and a half inches into its breadth. 3rd. That Griffith should have the house standing on Wilkins' lot, boarded up in such place or places as may be left open by the operations necessary to raise and lengthen the party-wall.
There was a plat of the wall and premises given in evidence by the plaintiffs, on which was designated by the letters C. D. E., that part of the division wall claimed by the plaintiffs to have been partly upon the lot occupied by them as tenants. It was proven that the original improvement did not contemplate the tearing down of this part of the wall, but only to use it in the proposed improvements; that after the main warehouse of Griffith had been taken down, and the excavations made for the cellar, he tore down a portion of the wall C. D. E., which exposed the loft of the back building of the warehouse occupied by Baugher, Fisher & Co., and finding this part of the wall had been built [**16]  at different times, and was weak and defective, he determined that 

 [*44]  it was necessary to tear it down also, and on the last of April, or the first of May, began to take it down, and in doing so opened and exposed the back-building of the warehouse of Baugher, Fisher & Co.; that the space so opened was boarded up with boards, some of which were lapped and some placed horizontally, and that it remained in this condition for some weeks. It was also proven by the plaintiffs, by a competent witness, that their goods were protected only by a plank partition, and that they were very much confused and piled up, and suffered a great deal from lime and dust; that they could not have been sold within five per cent. of their original value. The appellees gave evidence that the wall, C. D. E., was taken down only because it was found to be weak and defective, that the place was boarded up in the usual way, and every precaution used to prevent the occupants of the next house from being injured thereby, more than was unavoidable. And also, that it was not until after the upper part of the wall, C. D. E., had been taken down, it was discovered there was a necessity for taking it all down.  [**17]  The plaintiffs also gave testimony to show, that by the erection of the new wall, their warehouse was abridged about ten inches in breadth at the part where the old wall, C. D. E., had stood.
The will of Joseph Wilkins, deceased, is not in the record, and we are therefore uninformed of its provisions. But the agreements of the appellees and their deceased associates Glenn and Griffith, describe the former as "trustees" as well as executors. In the absence of the instrument conferring any upon them, we know not what authority they had, as trustees, to deal with the realty of Wilkins' estate. But, we feel authorized to assume, at least as far as the purposes of this action are concerned, that they had power to enter into the stipulations which they did.
Questions were presented in argument which, in our view of the case, it is unnecessary to decide. We content ourselves with the statement of a few principles sustained by authority and which bear on the decision we give.
It is undoubtedly true, that a lessee who holds under one 

 [*45]  who has a fee in the premises demised, is entitled to the quiet enjoyment of them during his term, and there is an implied covenant to that [**18]  effect on the part of the lessor in the case where none is expressed, if the contrary be not stated. But this implication does not extend to indemnity against injury or disturbance from the acts of a mere trespasser. It is confined to the acts of the lessor and all claiming through or under him, or in trust for him and those of persons having lawful title. Archbold's Law of Landlord & Tenant, 276, marginal. And in the case where the covenant was for quiet enjoyment, without the let of the lessor and his heirs, and "of all and of every other person or persons whomsoever," it was holden that these words meant lawful interruptions, and not the let or interruption of a stranger having no right. Dudley vs. Folliott, 3 Term Rep. 584.
The cause of complaint of the appellants grows out of the pulling down of the wall C. D. E., the building of another in its stead, and, as a consequence, the diminishing the area of their possessions. And these, it is alleged, were superinduced by the permission and privilege given by the appellants. Waiving all consideration of the question, whether, if a necessity existed for doing so, Griffith on due notice had not a right to [**19]  remove the wall and build a new one, a question on authority very far from easy answer, it is clear, that the language of the paper, executed by the appellees, did not give any permission or privilege, either to pull down the old wall, or to diminish the possessions of the appellants. What it authorized Griffith to do was, "to have the said party-wall raised to the height of four stories, and to have the same continued in a straight line with the present division wall to within three feet of the alley in the rear." Of this there is no complaint. That which is complained of was not authorized by the appellees. Whatever injury resulted to the appellants from the changes made, flowed from the acts of Griffith, and if there be responsibility anywhere, it is with him.
These observations cover the whole case, and are deemed sufficient to show that the plaintiffs cannot maintain the action. 

 [*46]  We concur with their counsel, however, that had it been established that the appellees were naked executors of the will of Joseph Wilkins, and had done the injury complained of under the pleadings in the cause, they would have been liable in their individual capacities. The authorities [**20]  cited by counsel for appellants, are decisive on the point.
It was agreed by the consent given to the defendants first prayer, that there could be no recovery against the defendants as executors. That consent makes the prayer law, so far as this appeal is concerned; and we have shown that there can be no recovery against them in their individual or representative capacity, on the pleadings and evidence.
It follows, from what we have said, that the plaintiffs sustained no injury from the refusal of their prayers, nor from the granting of some of those of the defendants. Inasmuch as we are of opinion there can be no recovery in this case, we affirm the judgment without reference to the precise language of the instructions refused on the one side or granted on the other.
Judgment affirmed. 

CONCURBY:
ECCLESTON 

CONCUR:

Per ECCLESTON, J.--I concur in the opinion of the court, as delivered by the Chief Justice, except that I do not consider it necessary to express any opinion on the question as to whether, if it had been established that the appellees were merely executors of the will of Joseph Wilkins, and had done the injury complained of, under the pleadings in the cause, they would [**21]  have been liable in their individual capacities.  

109 of 196 DOCUMENTS 

BALTIMORE FIRE INSURANCE COMPANY vs. WM. MCGOWAN and JOHN C. MCGOWAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 47; 1860 Md. LEXIS 45 

June 1, 1860, Decided 

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

In this case an action of covenant was brought on the 8th of September 1855, by the appellees, upon a policy of insurance issued by the appellant. Plea non infregit.

Exception. The policy offered in evidence by the plaintiffs, under seal and dated the 22nd of October 1853, insured "J. McGowan & Sons," to the amount of $ 6000, "on stock of groceries," in a certain warehouse, for one year from date, to expire at noon on the 22nd of October 1854, with a covenant "that this insurance shall continue and be in force from the expiration of the time before mentioned for its duration, so long as the said assured, or their assigns, shall continue to pay the like rate of premium as hath been paid for this insurance, and so long as this corporation shall agree to accept and actually receive the same from the assured, or their assigns; Provided, that the premium for a continuance of the insurance, shall be actually paid for by the assured, or their assigns, to this corporation, before the day limited for the termination of the risk, and such payment endorsed on this policy, or a receipt therefor given by this corporation," and with a condition [**2]  that, "this policy is not assignable unless by consent of the corporation, manifested in writing." The plaintiffs, also, offered in evidence the following renewal receipt endorsed on the policy, dated the 21st of October 1854, and signed by the secretary of the company, who, it was admitted, was authorized to make such renewals of policies:

"Renewal receipt for policy No. 12,704.--Received $ 36 from J. McGowan & Sons, being the premium on six thousand dollars, insured by the Baltimore Fire Insurance Company, under policy No. 12,704, which is hereby continued in force, and which will terminate at 12 o'clock noon, on the 22nd day of October 1855."

When the policy was issued, the firm of "John McGowan & Sons" consisted of John McGowan, and the plaintiffs, William McGowan and John C. McGowan, but on the 2nd of May 1854, John McGowan retired from the business and firm, and from that date the plaintiffs carried on the business on their own account, under the old name of "John McGowan & Sons." The fire and loss occurred on the 9th of December 1854, and evidence was taken on both sides, as to waiver of preliminary proof, the business carried on by the plaintiffs, the amount of loss,  [**3]  and other matters which need not be stated.

After the evidence was closed, the defendant offered two prayers, denying that the plaintiffs could maintain this suit in their own names, which being admitted by the plaintiffs to be correct, were granted. The plaintiffs then asked leave to amend the writ and nar. from covenant to assumpsit. The defendant objected to the proposed amendment, but the court (LEE, J.) granted the leave and the amendment was made at the bar, without withdrawing a juror, by an agreement to consider the nar. as a nar. in assumpsit, and the plea as a plea of non assumpsit. After this amendment was made the jury were again sworn, and the defendant offered its 3rd, 4th and 5th prayers, in substance as follows:

3rd. That if the jury find that in giving the renewal receipt, the secretary meant and intended to renew the policy in the name and for the benefit of the same persons who were therein assured, and neither he or any of the officers or agents of the defendant were notified, or had knowledge that John McGowan had previously retired from the firm of John McGowan & Sons, then the agreement to renew must be taken and considered as an agreement made with [**4]  said John McGowan and the plaintiffs, and not merely as an agreement with the plaintiffs.

4th. That if the jury find the facts set forth in the third prayer, then the plaintiffs are not entitled to recover without the conjunction of the said John McGowan as a plaintiff.

5th. That if the jury find the facts set forth in the third prayer, then the plaintiffs are not entitled to maintain an action of assumpsit on said receipt, unless it be shown in evidence, and found by the jury, that the defendant was applied to for a policy to be sealed and delivered in accordance with the terms of said receipt, and refused or declined to seal and deliver such policy.

The court rejected these prayers and granted the two prayers offered by the plaintiffs, relating, the one to waiver of preliminary proof, and the other to the construction of the policy with reference to the use to which the warehouse was appropriated by the plaintiffs. To this ruling the defendant excepted, and, the verdict and judgment being against it for $ 3570 damages, appealed.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

An insurance policy, under seal, was issued to "J. McGowan & Sons," for one year, with a covenant that it should continue so long as the "assured or their assigns" shall pay the premium, and the company shall accept and receive the same from them. At the time the policy was issued, the firm of "J. McGowan & Sons" was composed of the plaintiffs and another party, who retired from the firm during the first year, and the business was conducted by the plaintiffs under the same name. The day preceding the expiration of the policy, the premium for the second year was paid, and a renewal receipt endorsed upon the policy, stating that the company had received the premium from "J. McGowan & Sons," under the policy "which is hereby continued in force" for another year. A loss occurred, during the second year, and upon an action by the plaintiffs to recover therefor; HELD:

1st. That the renewal receipt is not a parol and new contract with other parties, on which an action of assumpsit may be brought, but is simply an extension, for another year, of the original sealed contract, and the plaintiffs, not being the covenantees nor their assignees, cannot maintain an action of covenant upon the policy.

2nd. But, whether specialty or parol, no action can be maintained on the contract, except by the parties insured; it is a joint contract and whatever sum could be recovered would be in solido, and no one of the parties insured can sue alone for his proportion; these plaintiffs, therefore, cannot maintain the action.

An amendment of the writ and nar., so as to change them from covenant to assumpsit, may, under the Act of 1852, ch. 177, be allowed to be made at the trial. 

COUNSEL:
Wm. Schley, for the appellant, argued:

1st. The order of the court below, permitting the amendment to be made [**5]  at bar, from covenant to assumpsit, was irregular and improper, and the objection, as it appears upon the record, is clearly open for review on this appeal. The Act of 1852, ch., 177, allows amendments to be made to promote the ends of justice, but the discretion thereby given to the courts is not a mere arbitrary discretion, which cannot be reviewed on appeal, for if it were so, an amendment might be made in the face of the ends of justice, and there would be no redress. Nor is there any valid objection to the form in which the question is presented. It was not a subject of exception--the objection was made and it comes up with the record, and is now open for review. 1 Md. Rep., 77, Lawson vs. Snyder. 7 G. & J., 109, Boteler & Belt vs. The State. The action being on the original policy, it was not competent to change it into a new suit by declaring upon the renewed policy as an agreement between other parties. 8 Sergt. & Rawle, 53, Wilson vs. Wallace. 2 Fairfield, 127, Winslow vs. Merrill. 5 Greenlf. 379, Redington vs. Farrar.

2nd. The original policy was a deed. The parties thereto were the insurer and insured. The insured were the persons composing the firm of John McGowan [**6]  & Sons, who were confessedly three in number, John McGowan being one. Now the renewal of the policy but extended the same contract for a further time. The receipt was not, in itself, a policy; it was not in and of itself an insurance. It was evidence of a collateral fact, which fact existing, the policy continued to operate, precisely as if it had originally been issued for the whole extended term. It was a contract, therefore, between the Insurance Company of the one part, and the three persons who were assured, when the policy was issued. It is impossible that what was in October 1853, a contract with three persons, should, by any just rules of interpretation be construed as a contract with only two of these persons. Nor can it be said that the receipt is, of itself, the foundation of the suit. By the terms of the policy it is covenanted, that the policy is to continue so long as the premium is paid. This policy is under seal, and, by its charter, (Act of 1807, ch. 68,) this company can insure only under its common seal. The case might be different, if the policy had been applied for pursuant to the receipt, (assuming the receipt to have been intended as applying only to the plaintiffs,  [**7]  ) and the company had refused to issue it. But, even in that case, a parol agreement by this company to insure would only be an agreement to issue a policy under seal, enforcible only in a court of equity. As to the effect of this renewal see 2 Whart., 167, Luciani vs. American Fire Ins. Co. If these views are correct, the defendant's prayers should have been granted.

Robert J. Brent, for the appellees, argued:

1st. The amendment was clearly within the Act of 1852, ch. 177, which allows, for the furtherance of justice, amendments of any of the proceedings, including the writ or summons from one form of action to another, to be made at any time before the jury retire to make up their verdict, and that such amendments shall not operate a continuance of the case unless the court shall be satisfied that the ends of justice re quire a continuance. The action was upon the renewal of the policy which was not under seal, and therefore, covenant would not lie. There could be no recovery in covenant, the fire having occurred after the parol renewal. It was, therefore, proper that the action should be changed from covenant to assumpsit. But amendments are within the sound discretion [**8]  of the court, and its action on such matters cannot be reviewed on appeal. Again, no exception was taken to the power of amendment as exercised; an objection was made but no exception was taken, and the question is not, therefore, before this court.

2nd. The renewal of the policy not being under seal, but by the simple receipt of the company's secretary, it results that the renewed policy could only enure to the benefit of the plaintiffs, who paid the premium, and who renewed it under the name in which they were doing business. This question cannot be affected by considering who were the parties entitled to sue upon the original policy, nor by the meaning and purpose of the company's secretary, as supposed in the defendant's third prayer. The fact, that John McGowan had withdrawn from the firm, was a matter of no moment to the company; its object was the premium, and it would have insured the sons as readily as the father and sons. There is nothing in the policy which required partners, when they insure, to disclose their names. The name of the firm was "J. McGowan & Sons," and the parol agreement to renew the policy, was made with the parties then constituting that firm, who [**9]  were the plaintiffs alone. But this receipt was a parol and new contract, and not an extension of the policy for another year; it refers to the previous policy only to show what the new agreement was. That an action of assumpsit will lie upon such a renewal is established by the case of Luciani vs. American Fire Ins. Co., 2 Whart., 167, cited on the other side. There was no error, therefore, in the rejection of the defendant's prayers.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*52]  LE GRAND, C. J., delivered the opinion of this court.
This was, originally, an action of covenant brought by the appellees, on a policy of insurance, issued by the appellants. The policy was dated the 22nd of October 1853, and on a stock of groceries. It was for one year, with the privilege of renewal, so long as the company should continue to receive the premium on the risk. During the first year the premium was paid for the second year. The loss took place on the 9th of December 1854, and the suit was brought by the appellees to recover its amount. The policy was issued to J. McGowan & Sons. At the time of its issual, the firm of J.  [**10]  McGowan & Sons was composed of J. McGowan and the appellees. John McGowan retired from the business and firm, on the 2nd of May 1854, the business being conducted thereafter by the appellees, (William and John C. McGowan,) under the name of John McGowan & Sons.

 [*53]  At the trial, on the motion of the plaintiffs' counsel, the court allowed the writ and nar. to be so amended as to change them from covenant to assumpsit. To the allowance of this amendment, the appellants excepted. The record shows, that after the amendment was made, the jury were sworn "to say the truth in the premises," between the plaintiffs and the defendants. The Act of 1852, chapter 177, section 1, is without limitation as to the power of the court to permit amendments to any proceedings, including the writ or summons, so that the case may be tried on its real merits, and the purposes of justice subserved. It expressly provides, that writs may be amended from one form of action to another, when the ends of justice require it. We do not think the court exceeded its power in granting the application of the plaintiffs.
There was much said, both in the evidence and arguments of counsel, in [**11]  relation to preliminary proof, to the comprehensiveness and meaning of the word "groceries," and other matters, which need not be commented upon, because, we are of opinion the appellees cannot recover in this action for any loss intended to be insured against by the appellants.
The policy underwritten is a sealed instrument. The company had no authority to issue any other than a sealed policy. The 10th section of its charter, the Act of 1807, chapter 68, declares, "that all policies of insurance made by this corporation shall be signed by the president, and attested by the secretary, and sealed with the common seal, and all losses on any such policy or policies shall be adjusted by the president and board of directors, and paid, agreeably to the terms of the policy, out of the funds of the company."
This prohibition, if there were none other, would be a sufficient answer to the plaintiffs right of recovery in this action. In the case of The Penn. & Maryland Steam Navigation Co. vs. Dandridge, 8 Gill & Johnson 248, the court, adopting the doctrine as laid down in Angell and Ames on Corporations, observes "that a corporation and an individual stand [**12]  upon very different footing. The latter, existing for the 

 [*54]  general good of society may do all acts and make all contracts which are not, in the eye of the law, inconsistent with the great purpose of his creation; whereas, the former having been created for a specified purpose, cannot only make no contract forbidden by its charter, which is, as it were, the law of its nature, but, in general, can make no contract which is not necessary, either directly or incidentally, to enable it to answer that purpose." Substantially the same principles was adopted in Albert and wife vs. Savings Bank and others, 2 Md. 159. But, in addition to this, the language of the policy and of the renewal receipt is a conclusive bar to the plaintiffs recovery. The policy provides that "this insurance shall continue and be in force from the expiration of the time before mentioned for its duration, so long as the said assured, or their assigns, shall continue to pay the like rate of premium, as hath been paid for this insurance, and so long as this corporation shall agree to accept, and actually receive, the same from the assured," &c.
The plaintiffs claim that [**13]  the renewal receipt was a parol and new contract, and not an extension for another year of the original sealed one. This view cannot be sustained by the receipt. It is just as positive the other way as is the policy. It expressly declares that, the premium is received under the original policy, and that, by it, the policy is "continued in force, and will terminate at 12 o'clock, noon, on the 22nd day of October 1855."
The case of Luciani vs. The American Fire Insurance Co., 2 Wharton 167, is not available for the purpose for which it was cited at the bar. All that case decided was, that an action of covenant could not be sustained by virtue of endorsements on the policy, not under seal, to the effect that the insurance had been enlarged as to the amount as also the premium. It was held that these endorsements did not continue the policy as a specialty, but that the plaintiff might have demanded a policy in conformity with the clause in the policy, or, perhaps, as suggested by C. J. Gibson, without deciding it, he might maintain assumpsit. That case is distinguishable 

 [*55]  from this in the fact, that there was not in it,  [**14]  as there is in the present one, a contract under seal for the continuance of the policy. Here the receipt does not evidence a new contract, but an extension of the original. By the covenant between the parties, the policy was to be for one year, or longer, on payment of the premium. There is nothing in the receipt to show, that there was a new contract of insurance with other persons, yet, other persons, not the original covenantees are here seeking to recover upon the policy. The plaintiffs are neither the covenantees nor their assignees. It is impossible, on the face of the plaintiffs' own evidence to hold, that the contract of insurance, from the 22nd of October 1854 until the 22nd of October 1855, was by parol. The only evidence on the point is all one way, and is clear, that the original sealed contract was not replaced by another and different one, but, continued in force. But, whether specialty or parol, no action could be maintained on the contract except by the parties insured. It is a joint contract, and whatever sum could be recovered would be in solido; "a contract with several persons, for the payment to them of a sum of money, is a joint contract [**15]  with all, and all the payees have therein a joint interest, so that no one can sue alone for his proportion." 1 Parsons on Contracts, 13.
If these views be correct then it follows that, the court erred in the rejection of the defendant's third, fourth and fifth prayers, and in granting the plaintiffs' prayers. The defendant's prayers denied the right of these plaintiffs to recover and were in their nature demurrers to the sufficiency of the evidence.
We abstain from all comment upon the merits of the claim or those of the defence, or of the degree of credibility which ought to be assigned to the conflicting testimony of the witnesses. The objection to the action is one founded in the rules of the law, and however hard they may bear in any particular case, it is not for the courts to infringe on their efficiency.
Judgment reversed.

 [*56]  Per Justices ECCLESTON and BARTOL:--In regard to so much of the opinion of the Chief Justice as denies the right of the appellants to bind themselves by a policy not under seal, we express no opinion.  

110 of 196 DOCUMENTS 

VAN HOLLEN KALKMAN, garnishee of WM. W. NEWMAN, vs. MARGARET P. MCELDERRY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

16 Md. 56; 1860 Md. LEXIS 46 

June 1, 1860, Decided 

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

Attachment on judgment, issued on the 15th of July 1858, by the appellee against Newman, and laid, on the 16th of July 1858, in the hands of Kalkman as garnishee, who appeared and pleaded nulla bona.

Exception. It was admitted that the appellee, on the 5th of March 1858, recovered a judgment against Newman for $ 408.75, and that the garnishee had in his hands $ 197.47, to distribute among the creditors of Newman, according to the terms and conditions of the assignment or power of attorney from said Newman, which is set out in the opinion of this court; that the garnishee received this money on or about the 8th of July 1858, and on the next day advertised in the Baltimore Sun newspaper, for such creditors to file their claims, as follows:

"Notice.--The creditors of William W. Newman, are hereby notified to file their claims, properly authenticated, with the subscriber, on or before the 15th of September 1858, preparatory to a dividend of such funds of said Newman as may then be in the subscriber's hands, by virtue of a power of attorney, executed to him by said Newman." (Signed,)

"V. H. KALKMAN,

Office No. 13 Lexington Street.  [**2]  "

That some of the creditors responded to said notice before this attachment was laid; that the garnishee has made no dividend among the creditors, and made no settlement with them prior to this attachment, and that he has suspended all attempt to do so in consequence of this attachment; that Newman, shortly after making said assignment, left the State of Maryland, and at the time of making it was insolvent in fact; that at the time said power of attorney was executed, he, the said Kalkman, asked Newman to furnish him with a list of all his creditors, which he did, and the paper annexed to said power of attorney is the list which was then given and was then annexed to the said power of attorney.

The court (MARSHALL, J.,) granted the plaintiff's prayer which is set out in the opinion of this court, and rejected a prayer of the defendant, "that upon the evidence in this case the plaintiff is not entitled to recover. To this ruling the defendant excepted, and from the judgment of condemnation upon the verdict, appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

An assignment, or power of attorney, authorized the assignee or attorney to collect the debts due the assignor, and after deducting commissions and charges, to "make as just and satisfactory a dividend thereof to my creditors as he can and settlement with them." HELD:

That this was not a bar to an attachment by a creditor, because it does not devote, absolutely and under all circumstances, the property to the payment of his debts, and, there being no evidence of any assent, in fact, of the creditors to it, the law does not presume any.

An assignment not transferring, on its face, all the property of the grantor, and not exacting releases, must, in order to bar the attachment of a creditor, be accepted by the transferree and adopted by the creditors.

The presumption of assent, by creditors, depends on the character of the instrument of transfer; an assignment will not be considered as beneficial to creditors, unless it devotes the property absolutely and under all circumstances, to the payment of the debts secured.

The assent of creditors will be presumed where the trust is for the benefit of all, and no release or other condition is stipulated for on behalf of the debtor, and the property is to be distributed equally among all the creditors pro rata, because such a trust cannot be for their injury and must be for their benefit.

Where a party receives funds from A, who directs their appropriation to B, in payment of a debt due him, and A agrees to the appropriation, such party will, at the election of B, be regarded as his trustee; such a trust may be enforced in equity, or when the amount is liquidated, the fund may be recovered from the depository at law.  

COUNSEL:
John H. Ing, for the appellant, argued:

1st. The fact is undisputed, that when this attachment was laid, the garnishee had declared [**3]  himself the trustee of the fund sought to be condemned under the attachment process. In such a case, the fund becomes the property of the cestui que trusts without more, and the court will administer it. After the receipt of the fund by Kalkman, and the notice by him to creditors, to file their claims with him, the money became a trust fund of which he was trustee, and the creditors cestui que trusts, and Newman had no control over or interest in it, and it was such a trust as a court of equity will administer, and the attachment, therefore, will not lie. For these positions see 18 Ves., 149, Ex-parte Pye. Burrill on Assignments, 281, 285, 300, 301. Story's Eq., secs. 371, 1037, 1041, 1045, 1056, 1047. Hill on Trustees, 127, 128, 129. 1 Lead. Cases in Equity, 215. 1 Amer. Lead. Cases, 46, 47. 11 Md. Rep., 185, Inloes, Garn. of Turnbull & Co., vs. American Exchange Bank. 5 Gill, 420, Somerville vs. Brown. A letter of attorney may be revocable at common law, yet if it concerns payment of debts it shall be continued in equity. Viner's Abr., Title, Countermand, A, 14. So if the principal assigns all his effects for the benefit of his creditors, and gives the assignee a power of attorney [**4]  to collect and receive all debts and outstanding claims, the power is irrevocable. Story on Agency, sec. 477. 2 Saund. Pl. & Ev., 597. 2 Esp., 565, Walsh vs. Whitcomb.

2nd. The transfer from Newman was a valid transfer, and passed to Kalkman the legal estate, so as to prevent this judgment creditor from appropriating the whole fund to her own use by attachment, to the prejudice of the other creditors. The true test in cases of assignment is: "That where the owner of the property has lost all power over it and cannot change its destination the creditors cannot attach." 19 Martin, 137, Babcock vs. Maltbie, cited by the Supreme Court in Black vs. Zacharie, 3 How., 512, the latter case being referred to in Wilson vs. Carson & Co., 12 Md. Rep., 78. A conveyance made for the benefit of all creditors is not treated as mala fide but merely as doing what the law admits to be rightful. It is not necessarily fraudulent because it may operate to the prejudice of a particular creditor. Story's Eq., sec. 370. 5 Term Rep., 235, Holbird vs. Anderson. 3 Maule & Selw., 371, Pickstock vs. Lyster. In a general assignment for benefit of creditors, if there be no stipulation for release, the assent [**5]  of creditors will be presumed. Such a general assignment bona fide made by the debtor and assented to by the assignee, will be deemed a valid conveyance founded upon a valuable consideration, and good against creditors proceeding adversely to it by attachment, or seizure in execution of the property conveyed thereby; at least, unless all the creditors, for whose benefit the assignment is made, repudiate it. Story's Eq. sec., 1036. Where the assignment is to a trustee for the benefit of creditors, not parties to the deed, it may be laid down as a general rule in American law that the assent of creditors is not necessary to its validity, and the legal estate or title will pass to the assignee without such assent, so as to prevent a judgment creditor from acquiring a lien, if real, by his judgment, or if personal, by his execution, unless upon the ground of fraud. Burrill on Assignments, 308. A deed conveying property to a trustee to be sold, and its proceeds applied to the payment of certain debts, and not imposing on the creditors any conditions, is valid to pass the property to the trustee. 11 Wheat., 78, Brooks vs. Marbury. A bona fide assignment of property by an inssolvent individual,  [**6]  to a trustee, for the benefit of his fair creditors is a valid sale and transfer of the property for a valuable consideration. 6 G. & J., 220, State vs. Bank of Maryland. It cannot be denied, that it is legal for a debtor in Maryland, in failing circumstances, to convey all his property to a trustee for the general benefit of creditors. 6 G. & J., 205, 217. If one creditor may be preferred to another, it would be difficult to imagine an objection to the validity of a transfer by a debtor of his whole estate to trustees, for the equal benefit of all his creditors. Equality is equity, and when a debtor makes a transfer of his property for the fair purpose of equal distribution among his creditors, he does an honest act, and discharges a moral duty, which none can reasonably complain of, and to which objection can seldom be made, except by such as may seek to secure their own claims, at the expense of the other creditors. In such case it would not be the debtor seeking to evade or defeat the rights of the creditors, whose interest, according to the extent and character of their respective claims, he proposed to protect, but the particular opposing creditor, seeking to draw to himself [**7]  more than his just proportion of the debtor's effects, to the prejudice of the other creditors; so that if there be anything unfair, it would seem to be chargeable, not to the debtor, in attempting to secure an equal and just distribution among his creditors, but rather to the creditor attempting to secure his own claim to the exclusion of the other creditors. It is only with the view of securing his own debt, or advancing his interest beyond that of the other creditors, and not to procure a just and equal distribution of the debtor's property, that a creditor will seek to set aside such a deed, since the deed, if suffered to stand unimpeached, secures that object. 6 G. & J., 217. It has been more than once decided in Maryland, say the court in 7 Md. Rep., 388, American Exchange Bank vs. Inloes, that a debtor, by the common law, and apart from our insolvent system, may, by assignment of his property or by payment, secure one creditor to the exclusion of others. In Pickstock vs. Lyster, 3 Maule. & Selw., 371, it was decided, that if a man assigns all his property to a trustee, simply with the purpose of having it fairly distributed amongst all his creditors, such an assignment, although [**8]  it may have the effect of hindering and delaying a particular creditor of his execution, is not within the spirit of the Statute of 13th Eliz. ch. 5, and, therefore, is not void, because it does not deprive any of the creditors of his fair share of the debtor's property, if he chooses to become a party to the deed.

Geo. M. Gill for the appellee:

The power of attorney to Kalkman was revocable at any time before distribution, by Newman. It cannot by denied that this paper was a power of attorney and not an assignment or grant. It authorizes the attorney to receive of all persons, all debts and sums of money outstanding, or that thereafter should be due and owing to Newman, who was about to leave the State, but denied to Kalkman the power to constitute any attorney under him without the written consent of Newman. It also requires Kalkman to account to Newman for all moneys received. It also authorizes Kalkman to deduct his commissions and professional services and to make as just and satisfactory a dividend and settlement among the creditors of Newman as he can. The paper is in all respects a mere power of attorney, which was revocable at the pleasure of Newman. After its execution [**9]  and before the receipt of any money under it, undoubtedly Newman might have revoked it, and so after the receipt of money and before distribution and settlement, Newman can revoke it. Again, let us suppose that Kalkman had received a part only of the money or debts due Newman, and had distributed such part and Newman had revoked his power as to such part as had not been collected, such revocation would undoubtedly have been good and prevented the further action of the attorney. This shows that there was no appropriation of all debts due to Newman. It appears that Kalkman received under the power of attorney, which is dated 1st of February 1858, the amount for which the verdict below was given, but when this amount became due to Newman, whether before or after the 1st of February 1858, does not appear. The amount was collected on the 8th of July 1858, by Kalkman. The power of attorney was to collect all outstanding debts, and all debts that should thereafter become due and owing to Newman. An assignment to pass all debts accruing thereafter is an anomaly, and certainly could have no effect. A power of attorney might apply as well to debts contracted at its date, as to debts thereafter [**10]  contracted. This would seem to show conclusively that this paper is a mere power of attorney and not an assignment or transfer, and therefore that it was revocable at any time by Newman until actually executed, and while it was, in any respect, executory.

The only question here is, whether the creditors of Newman had any vested interest? If they had, which of them had, and to what extent? Such never could have been the intent of this instrument. Newman being insolvent, and about to leave the State, leaves a power of attorney, so that the debts then due, or thereafter to accrue to him in Baltimore, should be collected, and that his attorney might make the best settlement he could with his creditors. If the object had been to make an equal division among his creditors, the paper would have been differently worded. It did not look to this, but left to the attorney to make as just and satisfactory a dividend or division among his creditors as he, the attorney, could, and as just and satisfactory a settlement with his creditors as he could. Some creditors are more easy of settlement than others, some might take a small amount in full discharge, others would require more. If Kalkman [**11]  had been a trustee, the power given to him to make as just and satisfactory a settlement and dividend as he could, would have been too broad a power under the decisions of this court. Who is to determine what is a just and satisfactory dividend and settlement? The answer must be, the attorney or trustee --a power of this kind is liable to abuse, and its insertion in a deed of trust would avoid it. Is property to be tied up in this way by an insolvent debtor? If he can do this he can set his creditors at defiance. The law will not permit this. This is but an ingenious device, in this view, to place his means beyond the reach of his creditors, and for this reason, if for no other, this paper, if considered as an assignment, would be void. The true view, however, is, that this paper was a naked power of attorney, and therefore revocable. The attachment when laid operated to revoke it.

It is true that it was competent to Newman to strip himself of all power and control over his debts, and to pass them away to a third party, and to direct that third party to divide their proceeds equally among his creditors; nay, he might have preferred certain named creditors and directed them to [**12]  be first paid. In this case, however, he has not so directed, but he leaves to his attorney the discretion as to the kind of settlement and apportionment among his creditors he may please to make, and the use of the terms, "just and satisfactory as he can make," does not compel, necessarily, an equal division among his creditors. If Kalkman had pleased to make a settlement with any creditor, he might have paid him all he received, provided such amount did not exceed his claim, and would have bound Newman. No creditor had, or could claim, any vested right or claim of appropriation under this power of attorney.

Another view may be taken of this transaction. The power of attorney is known to the parties to it and to no one else, until the attorney gives the notice. After he gives notice certain claims are filed with him, but nothing further done. If, in this state of things and before any settlement or distribution, Newman had determined to revoke the power of attorney, he undoubtedly could have said to Kalkman, you are my attorney and I now stop you. If this be so, then this case must be decided in favor of the plaintiff in the attachment case. Kalkman gives notice which shows,  [**13]  if you please, that he designed to make a dividend equally among the creditors. Before he does this, and while the matter is still unexecuted, the attachment comes and stops the division and settlement. The notice relied upon in this case, and from which, with the filing of claims, an attempt is made to work out an appropriation, is to creditors to file with Kalkman their claims properly authenticated before the 15th of September 1858, preparatory to a dividend of such funds of said Newman as may then (on the 15th of September 1858) be in the hands of Kalkman. If no funds were in the hands of Kalkman on the 15th of September, of course there could be no dividend. No creditor had notice what Kalkman had received. Some of the creditors filed claims against Newman with Kalkman. Now take the notice and the filing of claims, can it be said that they together amounted to an appropriation? Suppose at the time of giving notice and filing claims Kalkman had not received any thing, would it be contended that by filing claims with Kalkman the power of attorney would have become irrevocable?

The case of Tiernan vs. Jackson, 5 Pet., 580, states the true rule, which is this, "until the parties [**14]  receiving the conveyance or assignment had done some act recognizing the appropriation of it to the particular purposes specified, and the person claiming had signified their acceptance of it, so as to create a privity between them, the property and proceeds remained at the risk, and on the account of the remitter or owner." If we apply the test of this principle, and suppose that Kalkman proved to be insolvent, and nothing was got from him by any creditor, could any creditor be estopped by anything done from claiming his debt from Newman? Undoubtedly not. This case in 5 Pet., sustains the views of 14 East., 582, Williams vs. Everett; and of 3 Price, 58, Grant vs. Austen; and of 4 Price, 258, King vs. Hunter. The case of Gerrard vs. Lord Lauderdale, 3 Simon, 1, goes much further than this case, and shows that notification to the creditor produces no effect where there was an assignment in direct terms. See, also, Wallwyn vs. Coutts, 3 Merivale, 707. The notice of Kalkman refers to a power of attorney, but gives no date and no information, as to what creditors, as to period, are to file claims with him. It gives no notice as to what he has received, and it manifestly is designed to [**15]  divide only what may be in his hands on the 15th of September 1858. There is nothing in this to prevent his principal from claiming the money in his hands until the 15th of September had arrived, and indeed until he had made a division and settlement. Until the 15th of September 1858, Newman might have revoked his power of attorney; a creditor, by filing his claims with the attorney, did no more than place himself in a condition to ascertain what Kalkman might design to do, and if he found it to his interest to take his offer, to do so. He does not signify his acceptance to any appropriation, but merely takes the chances of getting something from Kalkman, and there is nothing to show what creditors filed their claims with Kalkman, nor the amount of any of them. The whole case shows that Kalkman was the agent of Newman, and acting exclusively for his benefit. He was in no sense a trustee for the benefit of creditors. He was to receive the debts due to Newman and make the most satisfactory settlement and division for Newman he could, with the creditors, and the agent might have paid the creditors in such proportions as he pleased; until actual payment and settlement, this power of attorney [**16]  was revocable.

This court has discouraged transfers which gave unlimited powers to trustees, and this discouragement should be continued, so as to prevent frauds and collusions. If this paper had been designed to transfer all the debts due to Newman, for the equal benefit of all his creditors, it would have been differently expressed--no terms of assignment are used, and it was never intended to operate as an assignment or work out an appropriation.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*65]  LE GRAND, C. J., delivered the opinion of this court:
The facts in the case are but few. The appellee had obtained a judgment against Newman, on the 5th of March 1858. The attachment was laid in the hands of the garnishee July 16th of the same year. There was no dispute as to the correctness of the claim; it was admitted, as was, also, a certain sum of money which had been collected by the garnishee from the debtors of the defendant, Newman, in pursuance of the authority conferred by the following instrument:
"Know all men by these presents, that I, William W. Newman, have constituted and appointed, and hereby constitute and appoint [**17]  V. H. Kalkman, of said city, my sufficient and lawful attorney, in my name, and for my use and benefit, to ask, demand and receive of all and every person or persons, whomsoever, all such debt and debts, sum and sums of money as are now outstanding, or shall be due and owing to me, the said William W. Newman, and upon receipt thereof, in my name, as aforesaid, to execute and deliver proper acquittances for the same; and it shall and may be lawful for the said V. H. Kalkman, to compound or agree to 

 [*66]  accept any dividend for any debt or debts, sum or sums of money, now due or hereafter to become due to me, as he may see fit, at his discretion and to the best of my advantage and interest, but he shall not constitute or substitute any attorney, or attorneys, under him, without my license, in writing, for that purpose first had and obtained.
"And the said V. H. Kalkman shall duly account to me, the said William W., upon receipt by him, said Kalkman, of any moneys on my account by virtue hereof, he, the said Kalkman, shall, after deduction of his commissions for collection and charges for professional services, make as just and satisfactory a dividend thereof to my creditors  [**18]   as he can, and settlement with them.
"And I, the said William W. Newman, hereby covenant to ratify and confirm whatever acts or things the said V. H. Kalkman may lawfully do by virtue hereof in the premises.
"Witness my hand and seal this 1st day of February, A.D. 1858
WILLIAM W. NEWMAN,   (Seal.)"
It was properly witnessed and acknowledged before a justice of the peace.
On the 9th of February 1858, through the "Baltimore Sun" newspaper, the garnishee, Kalkman, gave notice to the creditors of William W. Newman to file their claims properly authenticated with him, on or before the 15th day of September 1858, preparatory to a dividend of such funds of said Newman as might then be in his hands by virtue of a power of attorney executed to him by Newman.
Some of the creditors filed their claims, but were not paid anything because of the pendency of this action. On this state of case, the court instructed the jury as follows: "That if they find that when W. W. Newman, executed the power of attorney, given in evidence in this case, he was insolvent in fact, and shortly after making the same, he left the State of Maryland, and further find that when the attachment was laid in the [**19]  hands of V. H. Kalkman, he had received for the collection made by him under the said power of attorney, the amounts given in evidence and stated in his answer, and had, 

 [*67]  when the said attachment was so laid, made no settlement with any of the creditors of Newman, and had made no dividend among the said creditors, then the said plaintiff is entitled to recover, even if the jury find that prior to the laying of said attachment, he had advertised, as shown in his answer, and some of the creditors had filed their claims with him." The court rejected the prayer offered on behalf of the defendant, "that, upon the evidence in the case, the plaintiff was not entitled to recover."
The question before this court is, whether or not the Common Pleas ruled correctly. On the part of the plaintiff it is contended, that the instrument under which Kalkman acted was but a simple power of attorney, revocable at the pleasure of Newman; and, on the other side, that it was a valid and effective assignment, conveying, for the benefit of creditors, the legal title to the funds; that the filing of the claims of some of the creditors before the attachment, and the acceptance by Kalkman of the power [**20]  conferred, made him a trustee for the benefit of the creditors of Newman, creating such a trust as would defeat the attachment of the plaintiff.
If the paper relied upon as an assignment be one, it is so, because of the authority given to Kalkman to divide his collections of the debts due to Newman among the creditors of the latter.
There is no doubt that a debtor in failing circumstances may bona fide prefer one creditor to others.  6 Gill & John. 205. Nor, as was said in the case of The State vs. The Bank of Maryland, 6 Gill & Johnson 205, that, "equality is equity, and when a debtor makes a transfer of his property for the fair purpose of equal distribution among his creditors, he does an honest act, and discharges a moral duty." And it is equally true, where a party receives funds from A, who directs their appropriation to B, in payment of a debt due him, and A agrees to the appropriation, he will, at the election of B, be regarded as his trustee. The trust may be enforced in equity, or, where the amount is liquidated, the fund may be recovered from the depository at law.
The instrument relied upon in the present case, does not, 

 [*68]   [**21]  on its face, transfer all the property of the debtor, nor does it exact releases. To make it an effectual bar to the plaintiff's right of recovery, three things must concur: 1st, the transfer, 2nd, the acceptance of the transferree, and 3rd, the adoption of the creditor. Were it conceded that the paper is sufficient in form to constitute a good assignment, and that the published notice of Kalkman to creditors is evidence of his acceptance, still, there is wanting the third ingredient to make it available. There is no specific appropriation of any sum to any one; the whole matter is left to the judgment of Kalkman; he is to "make as just and satisfactory a dividend thereof to my (his) creditors as he can, and settlement with them." The case of King vs. Hunter & others, 4 Price 258, (2 Exchequer 95,) shows that such an appropriation is insufficient. Besides, there is no evidence that any of the creditors ever, in point of fact, assented to the transfer. The notice of Kalkman gave no accurate information of the character of the paper executed by Newman. And, although it is well established by numerous decisions, that, in case of an assignment to a trustee for [**22]  the benefit of creditors, "where the trust is for the benefit of all, and no release or other condition is stipulated for on behalf of the debtor, but the property is to be distributed equally among all the creditors pro rata, the assent of the creditors must be presumed; for the trust cannot be for his injury, and must be for his benefit," 4 Mason 206, it has also been held that, this presumption of assent depends upon the character of the instrument of transfer. In Townsend vs. Harwell, 18 Ala. 301, after recognizing the doctrine laid down by Judge Story in 4 Mason, the court say, "such assignment will not be considered as beneficial unless the deed devotes the property absolutely, and and under all circumstances, to the payment of the debts secured." And in Evans vs. Lamar, 21 Ala. 333, it was said, that "a deed which postpones a creditor in the collection of his debt, beyond the date of its maturity, is not valid as a conveyance of the property mentioned in it, until it is assented to by the creditor. Until that time it is a mere power, and may be revoked by the levy of an execution by 

 [*69]  creditors on the [**23]  property intended to be conveyed by it. Neither will the assent of the creditors to such a deed be presumed."
Being of opinion that the paper of Newman does not devote, absolutely and under all circumstances, the property to the payment of his debts, and there being no evidence of any assent, in fact, of the creditors to it, the law does not presume any. We are of the opinion the court gave a proper direction to the jury, and accordingly affirm its judgment.
Judgment affirmed. 

111 of 196 DOCUMENTS 

SAMUEL ELLINGER and others, vs. HENRY CROWL and Wife.--HENRY CROWL and others, vs. AGNES P. CROWL, by prochein ami.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

17 Md. 361; 1860 Md. LEXIS 81 

June 1, 1860, Decided 

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

In these cases a bill was filed on the 18th of August 1857, by the appellants in the first case, as well for themselves as all other creditors of Henry Crowl, against the appellees, to vacate, as fraudulent as against creditors, a deed dated the 1st of June 1857, from Henry Crowl to Agnes P. Crowl, his wife, and on the 26th of September 1857, a bill was filed by Agnes P. Crowl, by her next friend, Edward Murray, the appellee in the second case, against her husband, Henry Crowl, and his creditors, the appellees in the second, and the appellants in the first case, asking that said deed from her husband to her, might be reformed, so as to recite the true consideration upon which it was made, or a new deed decreed to be executed, reciting such true consideration.

The allegations of these bills, and of the answers thereto, and the purport of the evidence in the cause, sufficiently appear from the arguments of counsel, the opinions of this court, and the following opinion of the court below, (KREBS, J.,) delivered upon passing the decrees appealed from:

"The bills filed in the above cases are cross-bills. In the one,  [**2]  Ellinger and the other complainants, alleging themselves to be creditors of Henry Crowl, file their bill to set aside, as voluntary and fraudulent against them, a deed executed by the said Henry Crowl, the husband of the said Agnes, to her, for the consideration of love and affection for her, and the better to provide for her support and maintenance.

"In the other bill, Agnes P. Crowl alleges that the true consideration for the said deed was not natural love and affection, &c., as above stated, but that it was executed in consideration of marriage between her said husband and herself, and of the relinquishment of her right of dower in and to the real estate of the said Henry, and that there was a misrecital in the said deed of the true consideration thereof, and she prays that a new deed, conveying the property described in the said deed to her, and reciting the true consideration therefor, may be executed under a decree of this court. These two cases have been heard together, and if the complainant, Agnes P. Crowl, is entitled to the relief that she asks, the complainants in the other case will necessarily be defeated, and their bill will be dismissed. A very large portion of [**3]  the evidence produced by the complainant, Mrs. Crowl, has been offered for the purpose of proving that her husband, before her marriage with him, entered into a marriage contract with her, by which he agreed, in consideration of her marriage with him, to settle upon her a large and valuable part of his estate. This evidence I deem altogether unimportant to the decision of the question presented in her bill, because it is not filed to compel the performance of that contract, by requiring him to settle that property upon her, but to establish her title to a different parcel of his estate, and because if such a marriage contract as is alleged was made, it was, as the testimony shows, abandoned after her marriage, and destroyed, for the purpose of enabling her to set up her right of dower in his property. The true ground upon which her claim to relief is to be sustained, is, that she agreed to relinquish the potential right of dower that she claimed in the land conveyed by her husband to his sons, as mentioned in the proceedings, in consideration of the conveyance to her of the property described in the said deed by his said sons, to whom he had transferred it. I am of opinion that the [**4]  evidence proves clearly that she was to receive the title to the property described in that deed, in consideration of her relinquishing all claim of dower in the property which had been so conveyed by her husband to his said sons. It is true that when she relinquished this right of dower, they conveyed the property to him; but inasmuch as the consideration for the conveyance moved from her in equity, the trust of the property would have resulted to her. The deed afterwards executed by him to her for love and affection, does certainly embarrass her title, and cast a shade upon it when disputed by creditors. But if the consideration that induced him to execute that deed to her was her relinquishment of her said right of dower, as above stated, and if, through his mistake or misrepresentation in regard to the amount of his debts, or his ability to pay them, made in his statement to the conveyancer, by whom the deed was drawn, he was induced to insert the consideration recited in the deed, instead of the true one, it certainly would not be consistent with equity that she should be deprived of the property. Israel Cook, one of the witnesses, proves that this was the consideration for the [**5]  conveyance to her. Mr. Crowl informed Mr. Thompson, the conveyancer, as he testifies, that Mrs. Crowl was justly entitled to dower in real estate that he had conveyed to his children, for which he had received no consideration, and that in consideration of his making this conveyance to her, she would relinquish her right of dower in that land. That, then, was the true consideration. And the reason why it was not inserted by Mr. Thompson in the deed, instead of love and affection, &c., is obvious, from his testimony. He suggested to Mr. Crowl an objection to the conveyance of the property to his wife in the form in which it was done, but that objection was removed by his positive statement that he had abundant means to pay his debts, &c. Now, if the conveyancer was misled by the mistake or misrepresentation of Mr. Crowl, for it was the one or the other, and by reason of being so misled, recited a consideration in the deed that endangers her title under it, it ought to be reformed so as to recite the true consideration, and thus make her title to the property conveyed by it perfect. The conveyancer was certainly misled, if there is any foundation for the proceedings instituted by the [**6]  creditors of Mr. Crowl, in which they attack the deed, for the very reason that in it it recites the consideration that the conveyancer was induced to insert in consequence of Mr. Crowl's statement to him. I will, therefore, pass decrees in the two cases in conformity with these views."

From these decrees appeals were taken by the creditors and Henry Crowl, the complainants in the one case, and the defendants in the other.  

DISPOSITION:
Decrees reversed, and the cause of Ellinger and others, vs. Henry Crowl and wife, remanded for further proceedings.  

HEADNOTES:

In cases of fraud and mistake, courts of equity will reform instruments of writing so as to do justice, and make them conform to the intention of the parties, but this can only be done on clear and satisfactory proof.

Parol proof is inadmissible to vary the considerations stated in deeds, and thereby either to alter their character or to maintain them when impeached for fraud, by showing considerations differing from those mentioned in them.

Indebtedness at the time of executing a voluntary conveyance, is prima facie evidence that the deed is fraudulent as to creditors, and the onus is thrown upon the grantee to prove, in order to repel the fraudulent intent, that the grantor, at the time, was in prosperous circumstances, and possessed of ample means to pay all his debts.

Where the proof shows a valuable as well as good consideration for the deed, and that, at the time of its execution, the grantor had other property sufficient to pay all his indebtedness, as shown by the record in the case, such deed cannot be successfully assailed by creditors.  

COUNSEL:
Wm. Pinkney Whyte, for the creditors:

1st. The ground upon which Agnes P. Crowl asks to have the deed reformed and a different consideration inserted, is stated by the judge below to be, "that she agreed to relinquish her potential right of dower, that she claimed in the land conveyed by her husband to his son, as mentioned in the proceedings, in consideration of the conveyance to her of the property described in said deed, by his said sons, to whom he had transferred it." In reply to this proposition, it is submitted, that she had no potential right of dower in the property conveyed by Henry Crowl to his sons, because that deed of [**7]  the Frederick county property, was made by Henry Crowl to his children on the 20th of October 1856, and he was not married to the said Agnes until the 6th of November 1856.

2nd. If she had any right of dower in the Frederick county property, there is no proof to justify the conclusion that the consideration for the deed to her, was a relinquishment of the dower right. It is shown in the testimony, that Henry Crowl filed a bill to set aside the deed to his children, and that that proceeding was abandoned, and the suit disposed of under an agreement in writing which explains the whole settlement. That agreement declares, that Henry Crowl and wife "have agreed, to draw from or destroy from court a law suit" between them and David H. Crowl and others. And in consideration of the reconveyance to Henry Crowl, of certain property, he and his wife are to relinquish all claim or interest in the Frederick and Carroll county land. There is not one word in relation to any compensation to Agnes P. Crowl, for any dower right whatever, but, on the contrary, her rights are entirely ignored; and the deed for the property in dispute, is expressly to be made to her husband. After the receipt of [**8]  the deed for this property, Henry Crowl makes the deed of the 1st of June 1857, of the same property, to his wife, for the consideration, as stated, of "natural love and affection." It is not distinctly stated in her bill, on what ground, whether of fraud or mistake, the consideration which is now alleged to be the true one, was not inserted in the deed. 6 H. & J., 24, Wesley vs. Thomas. 5 Mason, 523, United States vs. Munroe. The deed was received by her on the 1st of June 1857, and recorded, and not until it was impeached in the following August, was it pretended that any other consideration than that expressed on its face moved Henry Crowl to its execution? In the answer to the bill, he so insists. And it is submitted that parties to a written instrument, are not to be permitted in controversies with strangers, to insist that the paper does not express what it was intended to express. 2 Gill, 409, Henderson vs. Mayhew. 6 Md. 57, Alderson vs. Day. 8 Md. 427, Anderson vs. Tydings. 9 Md. 508, Campbell vs. Lowe. 11 Md. 510, Cooke vs. Husbands. When a deed is impeached for fraud, the party to whom the fraud is imputed, will not be allowed to prove any other consideration [**9]  in support of the instrument. 1 H. & G., 187, 201, Betts vs. Union Bank. 1 Gill, 422, Cole vs. Albers & Runge. The decisions in this State are conclusive to show, that parol proof is inadmissible to vary the consideration stated in deeds, and thereby alter their character, or to maintain them when impeached for fraud by showing considerations different from those mentioned in them. 2 Md. Ch. Dec., 455, Sewell vs. Baxter & Wife, affirmed in 3 Md. 334, and cases there cited. The effort here is, by setting up a new consideration and reforming the deed, to get rid of the attack upon it by creditors, who seek to set it aside as fraudulent and void. The testimony to sustain such a proposition has been excepted to. If the consideration in the deed be a true one, then it is void, and especially so under the Act of 1853, ch. 245. Unless, therefore, there is good evidence that she is a purchaser for a valuable consideration, the deed must fall. But if it is competent to offer parol proof to show that the true consideration was not inserted in the deed, can it be possible that such proof is to be given from the mouth of the husband, against whom the bill has been filed? 1 Md. Ch. Dec., 527,  [**10]  Brooks vs. Dent. The answers deny the existence of any mistake, and in such cases there should be the strongest possible proof. 6 H. J., 445, Watkins vs. Stockett. 1 Md. Ch. Dec., 241, Goldsborough vs. Ringgold. 1 Brown's Ch. Rep., 92, Irnham vs. Child. 9 Gill, 430, Beard vs. Hubble. Adams Eq., 406, and notes. 5 Mason, 575, United States vs. Munroe.

3rd. An examination of the testimony, if admitted by this court, will hardly justify the action of the court below, in granting a decree in favor of Agnes P. Crowl. Israel Cook testifies, that the compromise was between Henry Crowl and his sons, and they were to give him the property, "witness made the proposition as their arbitrator, that they would give the deed to her, but they refused then, but they would give the deed to him, and he could do what he pleased with it." There was no contract here for the relinquishment of dower in that property, nor was she recognised by the sons, in any way, as having any claim thereon, or as entitled to any remuneration. The same witness shows, that the property in Frederick and Carroll counties, was worth about $ 19,000, less $ 7000 due upon a mortgage. The property conveyed to her was worth $  [**11]  6000. So that if it was to be believed, that the relinquishment of her dower right was the consideration for this deed, she conveyed her dower interest in $ 12,000 worth of property, and got $ 6,000 in return. If her husband had been dead, and she had really a vested right of dower, and her age twenty-six years, she would have been allowed, by the chancery rule, exactly $ 1714.28; and it would be hard to understand upon what principle she could obtain more than three times as much for a right of dower, which never existed at all. There is no evidence to show, that she was ever asked to sign any deed in relation to the Frederick county property, but that it was entirely a private arrangement between her and her husband. The inducement came from Henry Crowl and not from the sons who held the deed for that real estate, the validity of which was recognised by all the parties as shown by the reconveyance from the son to the father, of part of the property conveyed in the deed of the 20th of October 1856. There was no truth in the statement of Henry Crowl to Thompson the conveyancer, when preparing the deed, that his wife was justly entitled to dower in the land which he had conveyed to [**12]  his sons, "and in consideration of making this conveyance (that is, the deed of the 1st of June 1857) to her, she would relinquish her right of dower in that land;" because she had, by the agreement of the 20th of May 1857, between herself, her husband and his sons, relinquished all her claim and interest in that Frederick county land. While the court has recognised the right of a wife, who has realised value for the transfer of her potential right of dower, to invest it in property in her own name, this court will require it to be shown that she had a potential right of dower to sell, and did so sell it for a valuable consideration, before it will allow such a defence to defeat the rights of creditors of the husband. Here the wife had no right of dower in the land in Frederick county, for that deed was executed on the 20th of October 1856, and she was not married till the 6th of November 1856. That deed was never set aside, and now stands as good in law. What right of dower then had she, which was worth $ 6000 of the property of her husband?

4th. If then this deed of the 1st of June 1857, was a voluntary one, it will hardly be questioned that it should be vacated. It is shown [**13]  by the testimony of Israel Cooke, that while Henry Crowl set aside enough property to pay some $ 1400 of debts, which were all that he admitted to be due at the time, or before the making of this deed; that in truth his debts were near $ 4000. The testimony show salso, that he sold his life estate in all his other property. There is no other property to which the creditors can look for payment, except that mentioned in the deed of the 1st of June 1857. This deed, therefore, being voluntary, and the grantor having no other means wherewith to pay his debts, it should be set aside. 11 Md. 198, Williams vs. Banks.

J. Malcolm, for the wife:

1st. The true consideration for the deed is shown by the evidence in these cases to be, the relinquishment, by the wife, of her dower right, in the valuable property of her husband, and that that consideration was not inserted by the mistake of the conveyancer, and so testified to by him, and such being the fact, she is entitled to the aid of a court of equity to have the mistake rectified, so as to protect her property from the attempts of her husband's creditors to lay hold of it. In all cases of this kind the true inquiry is, whether [**14]  the deed has been contrived for the purpose of defrauding creditors, and if it can be shown that it was not so designed, and the party is a purchaser for a valuable consideration, a court of equity will protect the wife's property from her husband's creditors. The cases of Bowie vs. Berry, 3 Md. Ch. Dec., 359; Snively vs. Beavans, et al., 1 Md. 223; Unger & Wife vs. Price, 9 Md. 552; and 1 Am. Lead. Cases, 51; show that dower is a valuable consideration. And the cases of Wesley vs. Thomas, 6 H. & J., 24; Moale vs. Buchanan, et al., 11 G. & J., 314, and Cooke vs. Husbands, et al., 11 Md. 510, 511, show that the aid of a court of equity will be granted to reform, under such circumstances as are presented in these cases, and that a cross-bill was the proper mode to obtain the relief, see 1 H. & G., 175, Betts vs. Union Bank. And that parol proof of the declarations of the grantor is admissible, as part of the res gestae, having been made to the conveyancer at the time he was requested to draw the deed, see McDowell vs. Goldsmith, 6 Md. 342, and Powles vs. Dilley, 9 Gill, 234. But in this case no exceptions were taken by the complainants to the admissibility of the parol [**15]  evidence. 9 G. & J., 91, Clagett vs. Hall. 7 Md. 76, Gibbs vs. Gale. It is true that, if the parties design to express themselves in the terms of the deed they shall be bound by it, (2 Md. 25, McElderry vs. Shipley; 6 Md. 479, Showman & Wife vs. Miller, et al.,) but here they did not so design; there was a mistake in fact. All of the cases cited on the other side were cases in which was expressed the consideration the parties intended, but there was a mistake of law and not of fact.

2nd. The proof in the causes shows, that there was abundant means, not covered by this conveyance to the wife, to have paid all the debts of the husband, and, therefore, the relief sought by the creditors to vacate this deed, ought not to be granted. 5 Gill, 449, Worthington, et al., vs. Shipley.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*369]  LE GRAND, C. J., delivered the opinion of this court.
The nature and substance of these cross-appeals may be thus set out: on the 18th day of August 1857, Ellinger, Barbee and Royston, in behalf of creditors, as well as themselves, 

 [*370]  filed their bill of complaint against Henry Crowl,  [**16]  and Agnes P. Crowl, his wife, alleging that they were his creditors, with others, prior to the 1st day of June 1857; that the amount due to them was $ 673.10; that at the time these debts accrued, Henry Crowl was possessed of a large estate, part of which was conveyed to his children; and that on the 1st day of June 1857, being so indebted, the said Crowl executed a deed to his wife, Agnes, of all his property in the city of Baltimore, as described in the deed; that the consideration stated in the deed, for which the same was executed, was, "for love and affection," and the "better to provide for the support and maintenance" of his wife, Agnes. The bill charges that the deed was fraudulent and void, in prejudice of subsisting creditors, and fraudulently made to hinder, delay and defraud the creditors of Henry Crowl: it also charges that, at the time of the execution of the deed, Crowl had no other property with which to pay his debts. The relief prayed for is, that the deed may be declared void and set aside, and the property sold for the payment of the debts of Crowl, and an injunction to restrain his wife Agnes from disposing of the property. In his answer Henry Crowl admits the [**17]  allegations of the bill. His wife, under the permission given by the court, filed her separate answer, in which she does not admit the indebtedness of her husband as alleged, but claims an interest in his property, by virtue of a marriage contract, alleged to have been once made, but since destroyed, and avers that, the true consideration for the deed to her from her husband, was that she united in a deed conveying certain property in Frederick county, to the children of her husband by a former marriage, clear of dower. Her answer denies the deed was made to hinder and delay creditors, but was for the bona fide consideration of her marriage to him, and the relinquishment of her dower right in his real estate. The answer refers, also, to a bill filed by Henry Crowl, to set aside a deed of his property in Frederick and Carroll counties, to his children, and its settlement by compromise.
On the 26th day of September 1857, Agnes P. Crowl, by her next friend, Edward Murray, filed her bill of complaint, 

 [*371]  alleging her marriage with Henry Crowl on the 6th day of November 1856, and his promise to assign to her $ 10,000 worth of property, in consideration of her marriage, and [**18]  the subsequent cancelling of that agreement, and admits the conveyance of $ 6000 worth of property by the deed of June 1st, 1857; that Henry Crowl had a large family of children, and an estate in Frederick county and city of Baltimore, worth some $ 30,000; that he was eighty one years old, and she but twenty-six. The bill refers to the deed of the land in Frederick county to his children, and the proceedings to set it aside; it denies that the consideration for the deed of June 1st, 1857, was natural affection, as therein stated, but was, in fact, in consideration of the marriage between Henry and Agnes Crowl, "and the relinquishment of her right of dower in and to the real estate of said Henry Crowl." The bill prays that the deed may be so reformed as to recite the true consideration, or that a new one may be given to her under the direction of the court. Referring to the preceding bill of complaint filed by the creditors of her husband, she prays for an injunction to restrain them from proceeding with that suit until the determination of her right to a reformation of the deed.
On the filing of each bill the court ordered an injunction to issue, as prayed. Testimony was taken, and,  [**19]  by agreement, the testimony was to be read and considered in both cases. At the final hearing, the court dismissed the bill of Ellinger and others, vs. Agnes P. Crowl, and dissolved the injunction; and in the other case, that of Agnes P. Crowl, vs. Henry Crowl and others, decreed that the deed of the 1st day of June 1857, be reformed, as prayed in her bill; and that Henry Crowl execute a new deed to her in conformity therewith, and that the injunction be made perpetual.
The indebtedness of Henry Crowl as alleged in the bill on behalf of the creditors is admitted.
The marriage of Henry Crowl to his wife Agnes took place on the 6th of November 1856.
The deed from Henry Crowl to his children of the property in Frederick county is dated the 20th of October 1856, sixteen days previous to the marriage.

 [*372]  There is a great deal of testimony in the record in regard to the declarations of Henry Crowl and others about the time of the marriage, and thereafter, as to what he had done and intended to do for his wife in the way of a marriage provision or settlement. Most of it is very loose and indefinite. Some of the witnesses testify there was a paper making the provision,  [**20]  and some of these witnesses state it to have been signed by Henry Crowl, whilst others of them declare it to have been without his signature. One of the brothers of Agnes Crowl (Francis Murray) testifies, that his and her father "said that the paper was of no value, and it was burnt up at the instance of the father;" another brother (Wm. Murray) testifies, that "Agnes and Henry Crowl were sitting by the fire talking the matter over, and they came to the conclusion to burn the paper, which they did."
There is enough disclosed in the evidence to justify the inference, that about the time of the marriage of Henry Crowl to his wife Agnes, he was unsettled in his understanding. One of the witnesses proves that only the day before his marriage he was "then on a hunt for a wife," stating that he would give to any person who would please him, his farm in Frederick county, which he valued at ten thousand dollars, a farm of which he, at that time, was not the owner. The great disparity in the ages of the parties, and their short courtship, when taken in connection with the supposed wealth of Henry Crowl, are not circumstances demonstrative of any great fervor of affection for the more [**21]  than octogenarian, by his youthful spouse. Nor is the conjecture uncharitable that, a marriage under such auspices, partook of the character of a money speculation, and, if like other speculations, it has not turned out to be as agreeable and profitable as was hoped for, the disappointment must be borne as best it may be by the parties. Others, before them, have been balked in similar expectations.
Whatever equity Mrs. Crowl has, depends upon her making out that the real consideration for the deed to her of the first day of June 1857, was the relinquishment of her potential right of dower in lands conveyed by her husband, and 

 [*373]  that it was not intended to defraud or hinder his creditors, but merely to fulfil, honestly, an obligation due from him to her.
There is no doubt that in cases of fraud and mistake, a court of equity will reform instruments of writing, so as to do justice and make them conform to the intentions of the parties, but this can only be done on clear and satisfactory proof. Adams Equity, (marginal,) 171. And, it is equally certain, that both marriage and dower are valid considerations for a contract. In reference to this, all the authorities are agreed.  [**22]  The only question in any case is, as to the manner and quality of the proof adduced to establish the essential ingredients of a good and legal contract, such as can be enforced. One of the rules of a court of equity is, that it will not alter a contract, in the absence of fraud and mistake, so as to make it different from what the parties intended. There is no evidence in this case that the deed of the 1st day of June 1857, is in any wise other than it was designed to be. There is nothing in the testimony of Mr. Thompson, the conveyancer, going to show that he had any instructions to draw the deed differently from what he did. He details a conversation which he had with Mr. Crowl, in which he informed him, that he could not deed property to his wife if he had not of other property enough to pay his debts. After assuring the witness that he had abundant means to pay all his debts, he tells him that he had conveyed to his children valuable property in Frederick and Carroll counties, for which he had received no consideration, "and in which his wife was justly entitled to dower," and in consideration of making the conveyance to her she would relinquish her right of dower in that land.  [**23]  There is nothing in all this showing that the conveyancer made any mistake, or departed from the directions given to him; and it is evident, that he understood Crowl as meaning, that in justice she was entitled to dower in the property conveyed to her children by a former marriage, and not that there was any contract to that effect. The fact is, she had no right of dower, potential or otherwise, in the property. At the time of the marriage Mr. 

 [*374]  Crowl had no interest in it, and she, of course, could acquire none in it by virtue of the marriage. The conveyance of the 20th of October 1856, which took the title out of him, has never been successfully impeached, and, for aught that appears to the contrary, it still remains unimpaired as a muniment of title. There is no fraud alleged in her bill against her husband. The consideration set up by her is denied by him, and is not sustained by the proof. The evidence shows that, the children did not recognize her as having any interest in the property which they held under the deed of the 20th of October 1856, and that they refused in the arrangement and compromise made with their father to convey any thing to her which she was desirous [**24]  they should.
We deem it unnecessary to enquire, whether the declarations, under the circumstances they were made, of Crowl and others, which have been excepted to, be properly admissible. For, it is well settled in this State, as well as elsewhere, that parol proof is inadmissible to vary the kind of consideration stated in deeds. In the case of Sewell vs. Baxter & Wife, 2 Md. Ch. Dec. 447, where an attempt, like the one in this case, was made to change the nature of the consideration, the chancellor very distinctly repulses it as unauthorized by the uniform adjudications of the courts of this State. The bill in that case, as the one in this, attacked the deed as fraudulent, and as intended to defraud and hinder creditors. And, as in the present case, the deed in that was simply voluntary, in consideration of love and affection. The grantee sought to sustain it by proof that, her father, (the grantor,) having received her money, "applied a portion of it towards the purchase of the lands mentioned in the deed," and "at the time of making the purchase, and frequently afterwards, told respondent, (the grantee,) that the deed should be given to her for said lands,  [**25]  with which arrangement she was satisfied." In regard to this the chancellor says: "To the evidence offered to support this view of the case, the complainant has excepted, and it appears to me, clear, upon the authorities, that it is inadmissible. The deed, upon its face is voluntary, the nominal consideration of five dollars mentioned in it, being 

 [*375]  introduced simply to give it the character of a bargain and sale, and the question, therefore, is, whether it is competent to the grantee in this deed, to show by parol, that it was not a voluntary settlement by her father upon her, but that the land conveyed to her by the deed, was purchased and paid for by her father, with her money. The decisions in this State are conclusive to show, that parol proof is inadmissible to vary the consideration stated in deeds, and thereby either to alter their character, or to maintain them when impeached for fraud, by showing considerations differing from those mentioned in them. The cases of Wesley vs. Thomas, 6 Har. & Johns. 24; The Union Bank vs. Betts, 1 Har. & Gill 175; Wolfe vs. Hauver, 1 Gill 84; Cole vs. Albers & Runge, 1 Gill 412, [**26]  and the cases therein cited, place this question beyond all controversy." On appeal this decision was affirmed by the Court of Appeals, in 3 Md. 334.
Whilst indebtment, at the time of executing a voluntary conveyance, is only prima facie evidence of fraud as to prior creditors, and whilst the presumption arising from such indebtedness may be repelled by proving that the grantor, at the time of the gift, was in prosperous circumstances, possessed of ample means to pay all his debts, yet such indebtedness is prima facie evidence that the deed is fraudulent as to creditors, and the onus is thrown upon the grantee, of establishing the circumstances which shall repel the fraudulent intent. 3 Md. 334. No such evidence has been given in this case.
It follows, from these views, that, in our opinion, the decree passed by the circuit court in the case in which Agnes P. Crowl is complainant, is erroneous, and ought to be reversed, and her bill dismissed; and also that pronounced in the other case, in which Ellinger and others are complainants, ought to be reversed, and one passed making the property liable for the debts of Henry Crowl, existing [**27]  on the 1st day of June 1857, and ordering a sale to that end, unless said debts be paid on or before a day to be named in the decree. Whatever shall remain after discharging the debts of Henry Crowl, which existed on the 1st day of June 1857, will, of course, 

 [*376]  remain to Agnes P. Crowl, as her separate property. Decrees in both cases will be reversed, and the cause of Ellinger and others, vs. Henry Crowl and wife, remanded, that a decree may be passed by the circuit court in conformity with this opinion, and for further proceedings.
Decrees reversed, and the cause of Ellinger and others, vs. Henry Crowl and wife, remanded for further proceedings.
On the 13th of June 1860, the solicitor for Agnes P. Crowl moved for a re-argument, upon the point that the testimony in the cause was sufficient to establish that there was enough property belonging to Henry Crowl, at the time he executed the deed, attacked by the creditors, and not embraced in and conveyed by it, to pay all the debts proven in these causes to be due by him. This motion the court granted, and the causes were continued, and the re-argument on this point was made before LE GRAND, C. J., TUCK, BARTOL, and GOLDSBOROUGH,  [**28]  J.
Wm. Pinkney Whyte, for the creditors:
Relying upon the points before argued, and in reply to the points upon which the counsel for the wife now depends, the creditors insist that the proof in these cases shows that while Crowl falsely represented his debts to be but $ 1400, when he gave to Cooke, as trustee for his creditors, property worth, in all, some $ 2200, yet the claims subsequently presented by his creditors amounted to $ 4000. The witness, Cooke, when examined in chief, gave in evidence the statement of Crowl, as to his indebtedness, and upon the cross-examination in relation to that indebtedness, he stated that the claims against him amounted to $ 4000. Although the appellee excepted to this testimony, yet, upon a re-examination, her counsel permitted the testimony to be received, that claims were presented to that amount. Now, though her counsel asks for an affirmance of the decree below, upon the ground that he has "shown $ 2200 to pay $ 673, more than three dollars for one of his indebtedness," the real truth is, that pending these 

 [*377]  proceedings in this court, the creditors of Henry Crowl have brought the trustee into court to account for all property [**29]  belonging to Crowl in his, Cooke's, hands, and the same has been distributed under an order of the circuit court for Frederick county, on its equity side, and the fund only paid about eighty-five per cent. on the claims filed, exclusive of those of the creditors in these cases who did not file their claims. A copy of the auditor's account in that case is filed with this argument, in confirmation of the truth of this declaration, and the filing thereof is justified by the precedent allowed in 7 Md. 448, State vs. Weighorst, where the State's attorney was allowed to file certificates from the clerks of various criminal courts, showing the manner of entering verdicts, and this court permitted them to be read in proof of a practice in such courts. The deed, therefore, being a voluntary one, and indebtedness at its date proved on the part of the grantor, it is prima facie a fraudulent deed, and it is incumbent on the grantor to show, by clear proof, that he was in prosperous circumstances, and had ample property to pay his debts. 2 Md. Ch. Dec. 455, Sewell vs. Baxter & Wife. 11 Md. 227, Williams vs. Banks. There is, as has [**30]  been shown, no such proof in the record.
J. Malcolm, for the wife:
The witness, Israel Cooke, in his testimony, says, that the personal property and fifty acres of land, which he sold as trustee, was sufficient to pay $ 1400, and that Henry Crowl's other property, outside of his land, was worth $ 2200. Mrs. Child's testimony proves that she purchased, after the bills were filed in these cases, Henry Crowl's life-estate from him for $ 500, in property which was then under rent at $ 52 per month. And the debts in these cases are only $ 673, against the property outside of the deed. None of this testimony is excepted to, whereas the testimony of Cooke is excepted to by Mrs. Crowl, so far as it relates to the indebtedness of Crowl, outside of Crowl's declarations, given in evidence by Cooke, and for the very reason given by the witness, that he does not know the amount of his own knowledge, but by 

 [*378]  statements from others, whilst none of his testimony is excepted to by the creditors. Conceding then, for the sake of the argument, that Mrs. Crowl cannot show any other consideration than that expressed in the deed, nevertheless, this deed cannot be successfully attacked, [**31]  because the claims proven amount to the sum of $ 673.22, with interest on $ 348.22, whereas the proof shows that the property outside of the deed to his children, in Carroll, was worth $ 2200, in addition to his interest in the property situated in the city of Baltimore. And taking Cooke's testimony as to what Crowl said was his indebtedness, even in that case there was more than sufficient in the trustee's hands to pay all that was due by Crowl, not to speak of the property in the city of Baltimore, for which he received $ 700 per annum, and which he finally sold to Mrs. Childs for $ 500. Now if these facts be true, and there is no proof to the contrary, there is no ground to set aside this deed, upon the principles laid down in the case of Williams vs. Banks, 11 Md. 198, and the reasoning of the chancellor in Bullett vs. Worthington, which was adopted by the Court of Appeals, in that case, as the law of this State. And we have shown $ 2200 to pay $ 673, more than three dollars for one of his indebtedness, and are, therefore, entitled to an affirmance of the decrees below. The counsel for the creditors has no right to file a statement not in the record;  [**32]   for it is upon the record, alone, the case is to be tried, and the court cannot go behind or outside of it, for the purpose of ascertaining facts upon which its decision is to be made.
GOLDSBOROUGH, J., delivered the opinion of this court, on the re-hearing.
We adopt as correct the statement of the pleadings and evidence as made by the Chief Justice, and also his statement of the law as applicable to the case, but dissent from his view of the effect of the testimony. We are of opinion that the circumstances detailed in the proceedings, establish a valuable as well as a good consideration for the deed from Henry Crowl to his wife, Agnes, and also that at the time of 

 [*379]  the making of the said deed, the grantor had property other than that mentioned in the deed, sufficient to pay all his indebtedness shown by this record. This being so, the deed cannot be successfully assailed by his creditors, and we therefore affirm the decrees of the circuit court.
Decrees affirmed, with costs.
Decided Oct. 29th, 1861.
LE GRAND, C. J., dissented.  

112 of 196 DOCUMENTS 

NORTHERN CENTRAL RAILWAY COMPANY vs. JOHN BASTIAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 494; 1860 Md. LEXIS 32 

May 16, 1860, Decided 

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

This action was brought by the appellee against the appellant on the 24th of December 1856, to recover the value of services alleged to have been rendered by the plaintiff to the defendant, as its agent and broker, in effecting the sale of a quantity of old railroad iron belonging to the defendant. Plea, not indebted as alleged.

Exception. After the evidence, which, for the purposes of this case, is sufficiently stated in the opinion of this court, was closed, the defendant offered four prayers, in substance as follows:

1st. That there is no evidence, competent to go to the jury, to show that R. M. Magraw was authorized by the defendant to employ the plaintiff, or any one else, as a broker, to sell for the defendant the iron spoken of in the evidence, or that said Magraw was authorized by the defendant to pay, or promise to pay, the plaintiff, or any one else, any commission for the sale, or procuring the sale, of said iron, and, in the absence of any such evidence the plaintiff is not entitled to recover.

2nd. That the plaintiff is not entitled to recover in this action, unless the jury shall find from the evidence that the [**2]  defendant either employed the plaintiff to render the services for which this suit is brought, or promised to pay him for them.

3rd. That though the jury may find that Mr. Magraw was the acting president of the defendant at the time of the conversation between him and the witness Robbins, as testified to by the latter, and that this conversation took place as stated by this witness, yet the plaintiff is not entitled to recover, unless the jury shall also be satisfied, from the evidence, that the defendant authorized said Magraw to promise, or under-take for it, that it would pay to the plaintiff the compensation for which the suit is brought, or ratified or adopted the agreement, if they should find any such, of said Magraw, so acting as president, with the plaintiff.

4th. If the jury believe, from the evidence, that the plaintiff was acting as agent for the Montour Iron Company, in effecting a sale to them of the defendant's iron, then it was a fraud upon said company, to act for and accept a compensation from the defendant in that transaction, and he is not entitled to recover in this action any such compensation from the defendant, unless the jury further find that such [**3]  acting for and agreement to compensate by the defendant, was known to and acquiesced in by the said Montour Iron Company.

The court (MARSHALL, J.) granted the second and third, and rejected the first and fourth of these prayers, and to this rejection the defendant excepted. The verdict and judgment were in favor of the plaintiff for $ 419.33, and the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A railroad company advertised a quantity of old iron rails for sale. The advertisement was signed by its secretary. A party, acting for the plaintiff, who was an iron-broker, called on the secretary in relation to the iron, and was referred to the acting president of the company, who, on being informed that the plaintiff was a broker, and would charge him (the acting president) one per cent. commission on the sale, assented to the charge. The plaintiff then went to the company's office, had an interview with the acting president, disclosed the name of the party wishing to purchase, and informed him that he (the plaintiff) would charge him one per cent. commission, and a sale was subsequently effected through the agency of the plaintiff. In an action by the plaintiff against the company to recover these commissions -- HELD:

That these facts furnish evidence from which the jury might find that the acting president of the company was authorized to make the contract for the commissions sued for.

A corporation can act only by its agents, and, in order to bind the corporation, the agency must appear, but this need not be shown by any resolution or other written evidence, but may be implied from facts and circumstances.

The acting president being empowered to sell the iron, it was competent for him to engage the services of the plaintiff, in finding a purchaser and effecting the sale. Such an act, in absence of proof to the contrary, was within the scope of his agency, as a reasonable and proper means of accomplishing the business entrusted to his charge.  

COUNSEL:
Bernard Carter, and J. Mason Campbell, for the appellant:

1st. So far as the evidence shows, it appears that Hollins, the secretary of the defendant, was the officer of the corporation to whom the corporation had entrusted all matters relating to the sale of the iron. The advertisement, as published in the newspaper, and which was the source of the plaintiff's information, that this iron was for sale, expressly directed purchasers to Hollins, the secretary, and it was this officer who signed, on the part of the defendant, the contract of sale which was finally entered into with the Montour Iron Company. It appears, however, that Magraw was at the time of this transaction the acting president of the defendant. Had he any power by virtue alone of his office to employ the plaintiff on [**4]  behalf of the company and bind the latter to pay for his services? We submit, he had no such power. The Act of 1854, ch. 250, (the charter of the defendant,) confirms the original Act of 1827, ch. 72, the 12th sec. of which declares, the "President and directors, or a majority of them, may appoint all such officers, engineers, agents or servants, whatsoever, as they may deem necessary for the transaction of the business of the company, and may remove any of them at their pleasure; that they, or a majority of them, shall have power to determine, by contract, the compensation of all the engineers, officers, agents or servants in the employ of said company." Now if the plaintiff is to be considered as employed by the defendant, it must be as an agent or servant; the charter has, in express words, entrusted the appointment of all its agents and servants to the president and directors. How, in the face of this can it be pretended that Magraw, as acting president, without a word said to the directors, had the power to employ the plaintiff, and at a rate of compensation fixed by himself? There is nothing in the record, or in the charter of the company, to show that Magraw had any power without [**5]  the action of the directors, to sell any of the property of the company, and without some special authority, or power, given by the charter, or a vote of the corporation, it is clear he had no such power, virtute officii. Angell & Ames on Corp., sec. 298. 7 Grattan, 352, Crump vs. U. S. Mining Co. 14 Mass., 180, Hollowell & Augusta Bank vs. Hamlin, et al. 29 Verm., 220, Hodges vs. Rutland & Burlington Railroad Co. 36 Maine, 414, Brown vs. Weymouth. 2 Ala., 724, Lazarus vs. Shearer. 19 Barb., 310, Soper vs. Buffalo & Rochester Railroad Co. If he had no power of himself to sell the iron, what better right had he to employ, of his own accord, another person to sell that which he had no power to sell? The accessory must be supported without the principal. Nor does it appear that Magraw pretended even to settle the terms of the sale of the iron, or to interfere in any way with Hollins in effecting the sale. According to the plaintiff's own showing, all he did was to assent to the charge which Bastian said he meant to make. There is no evidence or pretence that Magraw, or any other president, had ever been in the habit of making such contracts or engagements as this, or that any such power [**6]  had ever been given by a vote of the corporation, or that the assent of the latter to the exercise of such powers was ever signified by acquiescence. Has the defendant, then, ever ratified this engagement of Magraw? There is nothing in the record to show that the corporation ever had any knowledge that Magraw had made any arrangement or engagement of any kind with the plaintiff with reference to the sale of the iron, and still less that it ever had any knowledge of the particulars of this arrangement. There could, therefore, be no ratification. Story on Agency, sec. 239. 8 G. & J., 323, Steam Nav. Co. vs. Dandridge. 8 Md. Rep., 169, White vs. Davidson. 28 Penn. State Rep., 505, Moore vs. Patterson. 2 Md. Rep., 63, Keener vs. Harrod & Brooke. Hollins expressly states that Bastian's claim was not recognized by the defendant; nor is there any evidence that the corporation ever, in any way, ratified the engagement made by Magraw with the plaintiff. Story on Agency, sec. 253. The evidence does not show that Magraw made any engagement for, or on account of, the defendant, to pay the plaintiff commissions, and for this reason, also, no acts of the defendant could amount to a ratification.  [**7]  Story on Agency, secs. 251, 258. It being clear then that Magraw had neither a special nor a general authority from the defendant to employ the plaintiff, or promise to pay him, and that there has been no ratification by the defendant of the acts or engagements of Magraw, it follows that the defendant is not responsible, (Angell & Ames on Corp., sec. 311, and cases cited,) and that its first prayer should have been granted.

2nd. We contend, also, that the defendant's fourth prayer should have been granted, and in support of this view refer to 2 Story on Agency, sec. 31; 6 Pick., 204, Copeland vs. Mercantile Ins. Co.

Robert Gilmor, Jr., for the appellee:

1st. There was no error in the rejection of the defendant's first prayer. It is well settled that one may be the agent of a corporation, so as to bind it by his acts in a particular transaction, by implication from the facts and circumstances of the transaction, and the acts of the parties to it, without showing such agent to have been appointed under the corporate seal, or giving proof that he has been appointed or elected by actual vote. 12 Wheat., 64, Bank of U. S. vs. Dandridge. 1 H. & G., 324, Union Bank vs. Ridgely.  [**8]  2 Gill, 254, Burgess vs. Pue. The evidence in this case was admissible to go to the jury to raise such implication. 2 G. & J., 404, Davis vs. Barney. 4 H. & J., 516, Burt vs. Gwinn. If, then, such agency may be found by implication, and, as is contended, the evidence is admissible to go to the jury, by its tendency to show the express purpose of the corporation to sell the iron, and the course they pursued, as furnishing presumption that by permitting and assenting to the act by which was carried out that purpose, they intended and provided for no other means by which it should be done, the implication might have been, in the opinion of the jury, that the corporation had thereby made Magraw their agent as to the plaintiff, and the principle would have applied, that the acts and contracts of an agent, within the scope of his authority, would be binding on the corporation, a principle well established, and which would render Magraw's employment of the plaintiff, under the circumstances, binding on the company, provided this was an act that came regularly and legitimately within the scope of his authority as such agent, which also was a question for the jury, and which was taken away [**9]  by this prayer. Again, by acquiescing in it, it is insisted the company adopted Magraw's act, and this is equal to authority, and was a question for the jury. It cannot, in right and justice, be permitted the defendant to accept the contract in such respects as it is beneficial, and reject its obligation or throw off its yoke. It is not contended that Magraw had any power to sell the iron and retain the plaintiff's services, as president of the corporation, virtute officii, but that, by all the acts of the corporation, there was a fair and reasonable implication that, as to the plaintiff, they had set Magraw up as their agent in this particular, and that they must, therefore, be bound by his acts.

2nd. As to the second prayer. If the principle asserted by it were conceded to be correct, there is no sufficient foundation in the evidence for it or the facts on which it proceeds. It therefore asserts an abstract principle. The law never presumes illegality, and presumptions will be made to uphold the validity of a transaction until the contrary is proved. At best, there would be but a conflict of presumptions where the presumption of innocence must prevail.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*499]  BARTOL, J., delivered the opinion of this court:
At the trial of this action in the court below, the defendant, the present appellant, offered four prayers, of which the second and third were granted, and the first and fourth refused. The defendant excepted, and by this appeal, has brought before us for review, the ruling of the court upon the first and fourth prayers.
The suit was brought to recover a sum of money alleged to be due from the appellant to the appellee, for services rendered by the latter in his capacity of iron broker, in the sale of a quantity of old railroad iron belonging to the appellant. The contract upon which the plaintiff relies, is alleged to 

 [*500]  have been made with him by Mr. Magraw, the acting president of the railroad company. The verdict and judgment were in favor of the plaintiff, and the appellant asks a reversal, on the ground that there was no evidence competent to go to the jury, to show that the acting president was authorized by the defendant to employ the plaintiff, or to agree to pay him for his services. This question is presented by the first prayer, and, in deciding [**11]  it, we must assume that the acting president of the company did employ the plaintiff, and agree to pay him the compensation claimed, those facts having been found by the jury, and no question being raised by the prayer, except as to the legal sufficiency of the evidence to go to the jury for the purpose of showing the authority of the acting president to bind the company in the transaction. To determine this question, it is necessary to advert to the evidence, which was substantially as follows:
In April 1856, the railroad company caused an advertisement to be published in the newspapers, offering for sale about 800 tons of old T rails, which was signed by Robert S. Hollins, the Secretary of the company. Mr. Robbins, of Baltimore, who was acting for the plaintiff, an iron broker, residing in Philadelphia, called on Mr. Hollins in relation to the iron, inquired the price, &c., and informed him for whom he, Robbins, was acting, and was referred by Mr. Hollins to Mr. Magraw, the acting president of the company, who, according to Mr. Robbin's testimony, upon being informed that the plaintiff was acting as a broker, and was purchasing the iron for a party in Philadelphia, and that the [**12]  plaintiff would charge him (Magraw) one per cent. commission on the sale of the iron, assented to the charge. It was further testified by Mr. Robbins, that the plaintiff visited Baltimore, went with witness to the office of the appellant, had an interview with Mr. Magraw, disclosed to him the name of the party wishing to buy the iron, and informed him that he, the plaintiff, would charge him one per cent. commission. Afterwards the plaintiff paid a second visit to Baltimore, when, through his agency, a sale was effected, and, on the 21st of June 1856, the contract of sale of 1000 tons of iron was made and concluded between the appellant and the Montour Iron Company. 

 [*501]  When the contract of sale was reduced to writing, and signed by the secretary of the appellant, it was delivered to the witness, Robbins, who sent it to the plaintiff, in Philadelphia, to procure the signature of the Montour Iron Company, and the same was, in a few days, returned by mail to witness, who delivered it to Mr. Hollins, the secretary of the appellant.
Looking at the facts and circumstances disclosed in the proof, as we have briefly stated them, we think they furnish evidence from which the [**13]  jury might find that Mr. Magraw, the acting president, was authorized to make the contract sued on. A corporation can act only by its agent, and, in order to bind the corporation, the agency must appear. This need not be shown by any resolution of the board, or other written evidence; it may be implied from facts and circumstances. 5 Md. 152.
In this case there is no question but that the offer of the iron for sale was the act of the railroad company.
According to the argument of the appellant, Mr. Hollins, the secretary, was the agent to effect the sale. But the evidence shows that when he was called on in reference to the matter, Mr. Hollins referred the party to Mr. Magraw, the acting president, as the person empowered to act for the company. The only agency which Mr. Hollins appears to have had in the business afterwards, was to sign the written contract of sale. If Mr. Magraw was empowered to effect the sale of the iron, and, in our opinion, there was evidence tending to prove that fact, then it was competent for him to engage the services of the plaintiff to aid in finding a purchaser and bringing about the sale. Such an act, in the absence of proof to the [**14]  contrary, was within the scope of his agency, as a reasonable and proper means of accomplishing the business entrusted to his charge. We think, therefore, the first prayer of the appellant was properly refused.
We concur, also, in the ruling of the court below on the appellant's fourth prayer. There was no evidence to establish any fraud on the part of the plaintiff, in the transaction.
Judgment affirmed. 

113 of 196 DOCUMENTS 

JAMES I. GIVEN vs. JOHN B. CHARRON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 502; 1860 Md. LEXIS 33 

May 16, 1860, Decided 

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

Assumpsit, brought on the 21st of July 1855, by the appellee against the appellant. The nar. contains the indebitatus counts, and a special count setting up an agreement between the defendant and the plaintiff, for the hire of the plaintiff for six months, from January 1st to July 1st, 1855, at $ 800, and that the plaintiff was wrongfully discharged by the defendant on the 1st of April 1855. Plea non assumpsit.

The facts of the case are fully stated in the opinion of this court. At the trial, two exceptions were taken by the defendant to the rulings of the court, (LEE, J.,) the first to the admission of evidence of the usage or custom spoken of by the witnesses, and the second to the rejection of the defendant's two prayers and the granting of the instruction by the court, which is set out in the opinion of this court. The prayers of the defendant, which were refused, are:

1st. That the evidence offered by the plaintiff, from the books of the defendant, does not sustain the special count in the declaration, and the plaintiff cannot recover on that count as the entry in the book of the defendant, "By interest & 4 mo's salary,  [**2]  $ 800," does not correspond with the allegation of a retainer at the rate of $ 800 for the season, if the jury believe, from the evidence, that said entry at all refers to the purchase by the defendant of the plaintiff's partnership interest between the 1st of July 1854 and the 13th of September 1854.

2nd. If the jury believe, from the evidence, that the plaintiff engaged in the service of Mr. Hamilton on the 5th of April 1855, as clerk and salesman, and continued therein till the 1st of July afterwards, then the plaintiff cannot recover on the special count in his declaration.

The verdict and judgment were in favor of the plaintiff for $ 300, with interest and costs, and defendant appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

The special count in a declaration set up an agreement between plaintiff, (a clerk or salesman,) and defendant, (his employer, a dry goods jobber in the city of Baltimore,) for the hire of the former for six months, from January 1st to July 1st, 1855, at $ 800, and that he was wrongfully discharged by the latter, on the 1st of April 1855. HELD:

1st. That evidence of a custom among dry goods jobbers in Baltimore, that when a clerk or salesman begins a season, without a special contract, he cannot be dismissed till the end of it, and that the seasons are two, one from January 1st to July 1st, and the other from July 1st to January 1st, is admissible.

2nd. An entry in the defendant's books, "By interest and 4 months' salary, $ 800," does not support the agreement sued on, there being no explanation of the words "by interest," nor does evidence that he was employed by another party, at $ 100 per month, support such agreement.

Where a party is employed, at a certain price, for a certain time, and before its expiration the contract is put an end to by the employer, he may recover on a quantum meruit, for the services he actually rendered.

An instruction so worded that it is impossible to decide whether it was designed to be confined to the common counts in view of which it is correct, or to extend to the whole declaration, which contained also a special count, in view of which it is wrong, is calculated to mislead the jury and is erroneous.  

COUNSEL:
John Carson for the appellant:

1st. There was error in permitting the evidence of usage to go to the jury. 1st. By the terms of the usage, it did not apply where there was a special contract, and the evidence was therefore inadmissible under the first count in the declaration, which was upon the special agreement. 2nd. The evidence as to the usage was inadmissible under the common counts, as it did not go to show an actual service,  [**3]  but to entitle the plaintiff to recover without such service. He could not recover, under the common counts, for a constructive service, upon the ground that, having tendered his readiness to perform, he was, at the end of six months, to be considered as having performed his service, for this doctrine is overruled, and the plaintiff must sue on the special agreement, and failing in this, he can only recover under the common counts, for services actually rendered. 2 Md. Rep., 38, Bull vs. Schuberth. 8 Md. Rep., 132, Jenkins vs. Long, et al. 69 Eng. C. L. Rep., 574, Goodman vs. Pocock. 34 Eng. C. L. Rep., 154. Smith vs. Hayward. 60 Eng. C. L. Rep., 177, Elderton vs. Emmens.

2nd. The defendant's first prayer raises the question of variance between the special contract declared on and the proof thereof. If the entry in the defendant's books, "By interest and 4 months salary, $ 800," refers exclusively to salary, then the six months' salary would be $ 1200, and not $ 800 as declared on. If it embraces partnership interest as well as salary, then it cannot prove the amount of salary under the special agreement, as the entry consists of but one item. No matter, therefore, which of these [**4]  constructions is put on this entry, there is a clear variance between the contract declared on and the proof thereof, and the defendant's first prayer should have been granted.

3rd. The instruction granted by the court is erroneous. 1st. It did not require the jury to find the rate of salary under the special agreement, but allowed the plaintiff to recover if the jury found only a part of the contract, viz: an engagement for six months service. 2nd. It assumed the fact that the defendant discharged the plaintiff. 3rd. It wholly ignored the variance between the salary stated in the special count and the proof by the entry in the defendant's books. 4th. It gave the jury no measure of damages, but left the amount of damages to the mere caprice or conjecture of the jury. If the contract was proved, the measure of damages was the contract price, less the amount received from the defendant and the sum paid the plaintiff by Hamilton & Co. Sedgwick on Damages, 532. 69 Eng. C. L. Rep., 574, Goodman vs. Pocock. 60 Eng. C. L. Rep., 154, Smith vs. Hayward. 5th. The court should have instructed the jury that if they found that this entry from the defendant's books embraced the purchase money [**5]  for the plaintiff's interest in the firm of Barthalow, Tiffany & Co., then the plaintiff could not recover on the special count; for how could any rational mind tell how much of the $ 800 referred to salary, or what the amount of salary was; and how could the jury rationally determine the damages for the breach of a contract which was not proved. 6th. The court's instruction was also wrong, because the usage, if admissible, did not sustain the special count but in part, and there was a clear variance between the usage and that count; for the usage only proves that the defendant could not discharge the plaintiff, but does not prove that the plaintiff was bound to remain with the defendant for six months, as the special count alleges; consistently with this usage the plaintiff might leave the defendant when he pleased.

A. L. Knott for the appellee:

1st. The testimony going to establish the existence of the custom or usage in the dry goods jobbing business in Baltimore city, in regard to the employment of clerks and salesmen, by the season of six months, when there is no express stipulation to the contrary, was properly admitted. The fact of such custom is to be proven like [**6]  any other fact. 1 Greenlf. on Ev., sec. 292. 2 Parsons on Cont., 48, and note and cases there cited. 2 Md. Rep., 217, Merchants Mutual Ins. Co. vs. Wilson. 6 H. & J., 408, Allegre vs. Ins. Co. 1 H. & G., 239, Bank of Columbia vs. Fitzhugh. 5 Hill, 437, Hinton vs. Locke. 12 G. & J., 468, Mason, et al., vs. Franklin Fire Ins. Co. 13 Md. Rep., 279, Frazier vs. Warfield.

2nd. The defendant's first prayer is objectionable on the ground that, had it been granted, it would have restricted the jury in considering the evidence produced to establish the special contract declared on in the first count of the declaration to that part of it only contained in a single entry from the account between the parties in the defendant's books, and excluded from their consideration all the other facts sworn to bearing on that point. It would have been equivalent to an instruction, that on the evidence the plaintiff could not recover. In face of the facts in evidence, it is submitted that, the court could not undertake to give any such instruction. 2 Gill, 152, Byer vs. Etnyre, et al. 13 Md. Rep., 242, Andre vs. Bodman. Besides, it is insisted that the entry in question did furnish evidence to sustain [**7]  the special count. It is, at least, an ambiguous one, and having been made by the defendant and in his own books, and no evidence being offered by him in explanation of it, the jury were entitled to place on it that construction which would operate most favorably for the plaintiff and against the defendant. Broom's Maxims, 461. 1 H. Bl. Rep., 586, Gibson, et al., vs. Minet. 13 Eng. C. L. Rep., 227, Edis vs. Bury.

3rd. The court's instruction correctly stated the whole law applicable to the case. If the contract was made between the parties, and the jury so found, the party aggrieved by its violation, was entitled to damages. The amount of damages was for the jury to ascertain on all the evidence. The contract was entire, and the plaintiff was entitled to recover the whole contract price for the season, deducting what he had received on account. 19 Eng. C. L. Rep., 504, Callo vs. Brouncker. 36 Eng. C. L. Rep., 368, Smith vs. Kingsford. 2 Carr. & Payne, 607, Beeston vs. Collyer. Ibid., 370, Pagani vs. Gandolfi. 5 Barn. & Adol., 904, Fawcett vs. Cash. 4 Camp., 375, Gandell vs. Pontigny. 5 Watts & Sergt., 210, Fereira vs. Sayres. 7 Adol. & Ellis, 177, Williams vs. Byrne. 2 Denio,  [**8]  609, Costigan vs. Mohawk & Hudson Rail Road Co. 1 Nott & McCord, 284, Cox vs. Adams. 1 Gill, 311, Howard vs. Wil. & Susq. Rail Road Co. These cases also establish that willingness and a tender to perform by the plaintiff, when prevented by the defendant, are equivalent to performance. See, also, on this point, 3 Johns., 520, Fleming vs. Gilbert. 7 Missouri, 96, Posey vs. Garth. As to entirety of contract, see 2 Mass., 147, Faxon vs. Mansfield. 17 Verm., 355, Winn vs. Southgate. 8 Cowen, 63, Lantry vs. Parks. 12 Johns., 165, M'Millan vs. Vanderlip. 4 Wend., 604, Stephens vs. Beard. 4 Gilman, 64, Badgley vs. Heald. 2 Pick., 274, Stark vs. Parker. These cases establish the doctrine, that in entire contracts, where conditions precedent remain unperformed as contracted for, the party in default can recover nothing for what has been done under the uncompleted contract. The rule is reciprocal. The party who is ready and willing to complete, can recover as for whole performance when prevented by acts of the other party. 8 Md. Rep., 197, Parker Vein Coal Co. vs. O'Hern. 2 Smith's Lead. Cases, 17, Cutter vs. Powell, and notes. The omission in the instruction of the court to state the amount [**9]  of salary agreed on, is no cause for reversal under the circumstances of this case. The omission was immaterial. It, at least, worked no injury to the appellant. The insertion of it would have entitled the appellee to a larger measure of damages than the verdict gave. Of this the appellant cannot complain. 12 Md. Rep., 491, Trieber vs. Knabe & Betts.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*507]  LE GRAND, C. J., delivered the opinion of this court.
This action was instituted to recover for an alleged wrongful dismissal of the plaintiff from the employment of the defendant. The declaration contains a special count, the indebitatus counts and an account stated. The special count sets out a special agreement between the plaintiff and the defendant, for the hire of the plaintiff for the period of six months, from January 1st, 1855, to July 1st, 1855, at the sum of eight hundred dollars, and that the plaintiff was discharged wrongfully, by the defendant, on the first day of April 1855.
There was no witness examined in the case, who proved either the special agreement of employment counted upon, or the value of the plaintiff's  [**10]   services.
After proving the length of time which the plaintiff was in the employ of the defendant, and that he was a salesman of the first order; it was then proposed to offer, on behalf of the plaintiff, evidence of a custom among dry goods jobbers, such as was the defendant, in the city of Baltimore, that when a clerk or salesman begins a season in the absence of, or without a special contract, the clerk or salesman cannot be dismissed until the termination of the season, and that the seasons are two, the one from January the 1st to the 1st of July, and the other from July 1st to January 1st. The 

 [*508]  admissibility of this evidence was objected to, but the court overruled the objection and admitted the evidence to go to the jury. The defendant excepted.
We think the testimony was properly admitted. It was pertinent to the contract declared upon, and a link in the chain of evidence to establish a custom existing among dry goods jobbers as to the time for which they were to be understood as employing clerks when nothing was said in regard to it. The question of the reasonableness of the custom was not involved in the offer, nor was its effect upon the rights of the plaintiff [**11]  to recover determined by its admission. Those were questions reserved for the further decision of the court on the whole evidence in the cause.
The evidence contained in the first bill of exceptions is in the second also. It was proven that certain persons constituted a firm, under the name of Bartholow, Tiffany & Co., of which firm the plaintiff was one. The firm was dissolved; subsequently to the dissolution, the plaintiff became the clerk of the defendant. The dissolution took place on the 11th of September 1854.
The only proof given of value of services was the rate at which they were paid for by Hamilton & Co., into whose employ the plaintiff entered after his discharge by the defendant, and an entry on the books of the defendant. Hamilton & Co. paid the plaintiff at the rate of $ 100 per month. The entry on the book was in these words: "By interest and 4 months' salary, $ 800."
The defendant asked two instructions from the court to the jury, both of which were denied, and the court instructed the jury as follows: "If the jury believe and find, from all the evidence in this cause, that the plaintiff was engaged to be in the employ of the defendant for the entire season [**12]  of six months, and that the plaintiff performed his part of the agreement, until discharged by the defendant, and after his discharge offered to go on and complete his services for the six months, then the plaintiff is entitled to recover such damages or loss, as the jury shall find he has sustained by 

 [*509]  reason of the defendant's discharging him before the expiration of the term of service agreed on."
Apart from defect in form of the instruction in assuming the fact of the discharge of the plaintiff, it was erroneous. If the entry in the book be relied upon, it does not correspond, in any view of it, with the agreement set up in the declaration. There is no explanation in the evidence of the meaning of the words in the entry, "by interest," and if the $ 800 are to be taken as the rate of salary for four months, then, it is clear, the contract would be one for $ 1200 for six months, instead of eight hundred, the amount alleged in the special count.
The rate of salary paid by Hamilton & Co., is not evidence on which the plaintiff can rely to sustain the special count. It does not support the agreement set out in that count, for, if it proved anything, it would prove [**13]  a hiring for six months at six hundred instead of eight hundred dollars.
If the plaintiff had been employed by the defendant, and for a certain time, and before the expiration of the time agreed upon, the contract was put an end to, it was competent to the plaintiff to recover, on a quantum meruit, for the services he actually rendered. Bull vs. Schuberth, 2 Md. 38. But, from the instruction given by the court, it is impossible to decide whether or not it was designed to be confined to the common counts, or to extend to the whole declaration, and therefore calculated to mislead the jury. It follows, that the instruction by the court was erroneous. The first prayer of the defendant ought to have been granted. The second prayer was abandoned at the bar, and is not therefore before this court.
Judgment reversed and procedendo ordered. 

114 of 196 DOCUMENTS 

WM. REYNOLDS, Administrator of ALEX. PAUL, vs. MANNING, STIMPSON & CO.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 510; 1860 Md. LEXIS 34 

May 16, 1860, Decided 

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

Assumpsit brought on the 8th of July 1855, by the appellant against the appellees, for work and labor done, and materials furnished by the plaintiff's intestate for the defendants. Plea, non assumpsit.

In the course of the trial, four exceptions were taken by the plaintiff to the rulings of the court below, (LEE, J.,) all of which are fully stated in the opinion of this court. The verdict and judgment were in favor of the defendants, and the plaintiff appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

In a suit by an administrator, a witness for the plaintiff was objected to as incompetent, and, on his voir dire, stated he was a creditor of the estate but had sold and assigned his claim, worth $ 900, (of which some $ 700 was dependent on the result of this suit,) for $ 600, and received from the assignee two notes of $ 300 each, of which one was paid, the other not; that he does not intend to demand payment of the last note, if the plaintiff loses this suit, but the sale was fair and without any condition that the payment of the notes should depend upon such a result; that he had made an absolute transfer of all his interest, and had a legal right to recover the note from the assignee, but would not do so if this suit was lost, but would if there was a recovery in it; that it is his intention not to make the assignee pay the second note if this suit is lost, but he may see fit to change this intention, and there was no understanding between him and the assignee that could prevent his doing so; that when he made the transfer, he told the assignee he expected to be a witness for the plaintiff in this suit. HELD:

That he was a competent witness; his legal interest, if any, was, at least, doubtful, remote and contingent; if he has any direct interest, it seems to depend upon an honorary obligation.

The old rule, excluding witnesses as incompetent on the ground of interest, has been much relaxed, and the later decisions manifest an inclination in the courts to consider the objection as going to credit and not to competency, unless the interest is shown with clearness and certainty.

To render a witness incompetent on the ground of interest, the interest must be legal, certain and direct, not possible only, not remote, probable or doubtful.

A witness is not incompetent because he considers himself under an honorary obligation, respecting the matter in controversy, in favor of the party calling him, nor will his mere belief that he has an interest in the controversy, exclude him.

If the possessor of a disqualifying interest, assigns such interest with a view of becoming a witness, and such be the purpose of the assignment, it will not, per se, prevent his being a competent witness.

Entries made by a clerk in the regular course of business, he having no interest, at the time, in stating an untruth, are admissible in evidence after the clerk's death, or on his becoming insane, on proof of his handwriting.

In this case the clerk was an Englishman by birth, who came to this country and remained but a few years, and then returned to England, unmarried, and leaving no relations here. More than three years before the trial, a letter was received from him, written in Australia, and he has never been heard from since. HELD:

That under these circumstances, entries made by him, as clerk, are admissible in evidence, on proof of his handwriting.

An offer to pay part of a claim which had been previously presented to the defendant, and which he refused to pay, made after suit brought and not accepted, is not admissible in evidence against the defendant.

There need not be an express declaration that the offer was confidential, or made without prejudice, to make such offer inadmissible; the nature of the negotiation and the character of the transaction, will be looked to to ascertain whether the offer was intended to be without prejudice.

The whole of what a party says at the same time, and relating to the same subject, must be given in evidence, but it is for the jury to consider, under all the circumstances, how much of the whole statement they deem worthy of belief, including as well the facts asserted by the party in his own favor, as those making against him.  

COUNSEL:
H. Stockbridge and Wm. F. Frick for the appellant:

1st Exception. The court erred in holding that the witness, Thos. H. Paul, has a legal interest in the result of this suit. The case of Bent vs. Baker, 3 Term Rep., 27, has settled the doctrine that an interest to disqualify a witness, must be some legal, certain and immediate interest in the result of the suit, or in the record, and that principle has since been unquestioned in England and this country. The mere belief of the witness that he has an interest, or the pressure of a moral or honorary obligation upon him, short of a legal responsibility, goes to the question [**2]  of his credibility, not his competency. 1 Greenl. on Ev., sec. 388. 3 G. & J., 282, Stimmel vs. Underwood. Ibid., 355, Watts vs. Garrett. 5 Md. Rep., 404, Funk vs. Kincaid. 6 Md. Rep., 541, Melvin vs. Melvin. The case of Crawford vs. Brooke, 4 Gill, 213, does not conflict with this view. That case turned upon the construction of the Act of 1829, ch. 51. The assignor was admitted as a witness in a suit brought by the assignee in his own name, the assignment being voluntary and without valuable consideration. The question being, whether the assignment was bona fide under the Act, and the motive of the transfer being the object of inquiry, it was ruled that the assignor might be asked, "whether he did not make the transfer for the purpose of becoming a witness, and so remove the bar of the statute of limitation." This went to the point whether the assignee was capable to sue, not to the competency of the witness. Besides, in this case the motive of the assignment of the witness, as stated by himself, was "to better himself." He did not say he made the transfer for the purpose of becoming a witness, but only that, at the time of the transfer, he expected to be a witness. And, further,  [**3]  the assignment in this case was for a valuable consideration, in part paid, with a legal right to the balance, and could not be declared void under the Act of 1829. On this point see, also, 7 Md. Rep., 602, Pegg vs. Warford.

2nd Exception. Entries in the books of an intestate, in the handwriting of a clerk who is beyond the seas and cannot be reached by process of the court, made by the clerk in the usual and regular course of his business, may be offered in evidence, by the intestate's administrator, in a suit between him and persons to be charged with such entries. The doctrine is established in 1 Salk., 285, Price vs. Earl of Torrington, that entries made in the usual course of business by the plaintiff's clerk, who had no interest in stating an untruth, are to be received as proof of the facts stated in such entries, after the death of the clerk, on proof of his handwriting. The authorities cited in 1 Smith's Lead. Cases, 139, 143, establish this to be now the settled law in all the States in this country. 15 Mass., 380, Welsh vs. Barrett. 1 Wash. Va. Rep., 76, Lewis vs. Norton. 2 H. & J., 77, Clarke vs. Magruder. 7 H. & J., 467, King vs. Maddux. The principle has been wisely [**4]  extended to cases where the clerk from insanity, absence beyond the State, or for other reasons, could not be produced, nor his evidence taken by commission; the reason for admitting the entries being the same under these circumstances as in the case of his death. 2 McCord, 349, Elms vs. Chevis. 1 Bay, 480, Tunno vs. Rogers, et. al. 1 Binney, 234, Sterrett vs. Bull. 12 Sergt. & Rawle, 49, Philadelphia Bank vs. Officer. 8 Watts, 77, Alter vs. Berghaus. 2 Watts & Sergt., 137, Hay vs. Kramer. 3 Pick., 96, Union Bank vs. Knapp. 6 Cushing, 216, Holbrook vs. Gay. 1 Smith's Lead. Cases, (5th Ed.,) 397. In this case, the production of the clerk, who made the entries, was as much a matter of impossibility as though he were insane or dead. He had not been heard of for three years, and was even then in Australia, in a new and only semi-civilized country, where a commission could not reasonably be expected to reach him. The same reasons which, in case of his being dead, would render the entries made by him admissible in evidence, existed in full force under these circumstances. He was, for all practical purposes of getting at his evidence, dead; though sufficient time has not elapsed since he [**5]  had been last heard of to create a legal presumption of his death.

3rd Exception. The offer of a sum, by way of compromise of a claim tacitly admitted, is receivable, (even post litem motam,) unless accompanied with a caution that the offer is confidential. 1 Greenlf. on Ev., sec. 192. In Wallace, et al., vs. Small, 1 Moody & Malkin, 446, in 22 Eng. C. L. Rep., 355, there was some difficulty in fixing the defendant with the contract. It appeared, however, that after action brought offer of a specific sum had been made. It was objected to, because, from the nature of the transaction, it was an offer for compromise, and must, therefore, be understood to be without prejudice, although nothing was said to that effect at the time. Lord Tenterden said: "It was prima facie evidence. It is not said to be without prejudice, and an offer to compromise may very well be made without any restriction as to confidence." The case of Thompson vs. Austen, 2 Dow & Ryl., 358, in 16 Eng. C. L. Rep., 95, determines that the true principle upon which the offer is excluded, is "the condition, express or implied, that no advantage is to be taken of it." It must appear affirmatively that the party is willing [**6]  to submit to such a sacrifice; that he does not mean to admit any responsibility, or that, if he does, the admission is confidential.

4th Exception. So far from there being no evidence of value, the evidence offered was conclusive, as an admission by the defendant, against his interest, and the court had no right, on any ground, to take the case away from the jury. It is true, the defendant, while he admitted the correctness of the plaintiff's claim, assumed to have a set-off, by way of unliquidated damages, against the item of $ 4000 for the engine, because the work "had been put upon an imperfect foundation, and had not been done in time." This additional statement was properly received in evidence, because he was entitled to the benefit of his whole statement. But undoubtedly it was for the jury, and not the court, to determine whether, upon the whole statement, anything was due the plaintiff or not. The rule is this: "Though the whole of what the party says at the same time, and relating to the same subject, must be given in evidence, yet it does not follow that all parts of the statement are to be regarded as equally worthy of credit; but it is for the jury to consider, under [**7]  all the circumstances, how much of the whole statement they deem worthy of belief, including as well the facts asserted by the party in his own favor, as those making against him." 1 Greenlf. on Ev., sec. 201. Thus the jury might reasonably, and would probably, have believed the admission of the defendant, that the balance of the bill, amounting to $ 2386.99, was correct. But there was no plea of set-off in the case, and even if they were entitled, under the general issue, to allow the claim, as set up, they were not bound to allow it against the items of the bill, amounting to about $ 900, exclusive of the cost of the engine, which was $ 4000. Nor were they bound to allow the set-off upon the mere averment by the defendant, in a general way, that he had such a claim. For when they came to consider the alleged claim of the defendant to off-set damages for putting the engine "on an imperfect foundation," they would naturally have looked to the contract, which required the defendants "to do the work of the foundation," and would not, without further proof, have held the plaintiff's intestate liable for what appeared from the evidence to be the defendants' own default. And when they further [**8]  came to consider the defendants' claim for damages for alleged delay in putting up the work, they might either have taken the admitted correctness of the item in the bill, "for engine, May 1st, $ 4000," as sufficient proof to satisfy their minds that there was no delay, or they might have chosen to consider the giving of a note, in part payment on June 3rd, as a waiver of any forfeit under the contract, or as an admission that the delay was owing to the selection, by the defendants themselves, "of an improper foundation, which had to be altered by other machinists." These suggestions are only to illustrate the principle that the whole statement was properly before the jury, and it was for them to determine how much and what part of the whole statement they deemed worthy of belief. In Smith vs. Blandy, Ryan & Moody, 257, in 21 Eng. C. L. Rep., 432, C. J. Best says, in reference to the declarations and admissions of a party to a suit: "The whole must be given in evidence; and what he says in his favor must not be taken as true, but must be left, under all the circumstances, for the jury to say whether they believe it or not." In Rex vs. Clewes, 4 Carr. & Payne, 221, in 19 Eng. C. L.  [**9]  Rep., 355, a prisoner, by his confession, admitted he was present at the murder, but took no part in it. Littledale, J., said: "I must leave the whole confession to the jury; and it is evidence for the prisoner and against him; but still the jury may, if they think proper, believe one part of it and disbelieve another."

Chas. H. Pitts, for the appellees, argued:

1st. That the court properly rejected the testimony of Paul. He had a direct pecuniary interest in the result of the suit. He was a creditor of the estate. His claim could not be paid without a recovery in this case. It is manifest from his own statement, that the assignment to Harper was not bona fide, but a mere contrivance to make himself a witness. He declared, at the time, to Harper that he expected to be a witness. He stated, upon his voir dire, that he would not make Harper pay the remaining note unless there was a recovery in this suit.

2nd. The entries in the book were clearly not admissible. Smith, who made them, was alive. His testimony might have been taken under a commission. 1 Greenlf. on Ev., secs. 115, 116.

3rd. An unaccepted offer of compromise is not binding upon the party making it, and [**10]  cannot be used in evidence against him. 1 Greenlf. on Ev., sec. 192.

4th. Proof of work done and materials furnished is not sufficient. There must be proof of value upon which the jury can render a verdict. 1 G. & J., 440, Dyer vs. Dorsey.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*516]  ECCLESTON, J., delivered the opinion of this court.
Wm. Reynolds, administrator of Alexander Paul, instituted this action of assumpsit, in the Superior Court of Baltimore city, against the defendants, Manning, Stimpson & Co., the present appellees, to recover money alleged to be due for work and labor done and materials furnished, by Paul the intestate, for the defendants.
At the trial four bills of exceptions were taken to the rulings of the court. Three of them present questions in regard to the admissibility of evidence, offered on the part of the plaintiff; and the fourth is based upon an instruction given to the jury, at the instance of the counsel for the defendants.
The first exception shows that Thomas H. Paul was called by the plaintiff as a witness, to prove that the work and labor sued for was done by the plaintiff's [**11]  intestate.
The defendants objected to the testimony of the witness, 

 [*517]  upon the ground that he was interested in the result of the suit, and caused him to be examined on his voir dire, when he testified as follows:
That he was a creditor of the estate of said Alexander Paul, the assets of which estate, including the claim here sued for, were insufficient for the payment of the debts of the estate. That he had received one dividend two or three years before, and then expected to get a further dividend of about $ 900, some $ 700 of which was dependent upon the result of this suit. That the chief witnesses to prove the claim now sued on, were Miller and Maxwell, who were actually employed in doing the work, and knew its value, and that they had been in attendance as witnesses in the case. That being desirous to better themself, he agreed with one Harper, to sell and assign to him, all his interest in said estate, estimated to be worth $ 900, as aforesaid, for the sum of $ 600, and executed to Harper a written assignment to that effect, and received from him two notes in September 1854, for $ 300 each, one payable in six months after date, and the other payable twelve months [**12]  after date. That said sale was fair and without conditions of any kind between him and said Harper, that the payment of said notes should depend upon the result of this suit. Harper paid the witness the amount of the first note, but had not paid the last, which being still in the possession of the witness was produced by him.
In reply to a question whether he intended to demand payment of the last note from Harper, if the present suit should be decided against the plaintiff, the witness stated that, as he then felt, he did not intend to do so, but that there never had been any agreement between him and Harper to that effect. That he had made an absolute transfer of all his interest, and had a legal right to recover the note from Harper; but would not do so, if the suit was lost; and that if there was a recovery in the suit he would make Harper pay the note. That Harper was a journeyman blacksmith, and he was not aware that Harper had any means, or property of any kind, except that arising from his daily labor. At the time he made the 

 [*518]  transfer to Harper he told him that he estimated his share of the proceeds of this suit at $ 700, and that he expected to be a witness for [**13]  the plaintiff in the suit.
On cross-examination, the witness further stated that the intention expressed by him, not to make Harper pay the second note, in case the suit was lost, was certainly his present intention, but that he might see fit to change the same, and that there was no understanding between him and Harper that could prevent his doing so.
After the statement made by this witness, upon his voir dire, the court decided he was incompetent, on the ground of interest; to which the plaintiff excepted.
In support of the rejection of the testimony of Paul, the reasons assigned in the notes of the appellees' counsel are:
"He had a direct pecuniary interest in the result of the suit. He was a creditor of the estate. His claim could not be paid without a recovery in this case.
"It is manifest from his own statement that the assignment to Harper was not bona fide, but a mere contrivance to make himself a witness. He declared, at the time, to Harper, that he expected to be a witness. He stated upon his voir dire, that he would not make Harper pay the remaining note unless there was a recovery in this suit."
The ancient rule which excluded witnesses as being incompetent, [**14]  on the ground of interest, has, at a later period, been much relaxed; the later decisions manifesting, very clearly, an inclination in the courts, to consider the objection as going to the credit and not to the competency of the witness, unless the interest is shown with clearness and certainty. To render him incompetent the interest must be legal, certain and direct, not possible only, not remote, probable or doubtful. This subject has been fully considered by this court, in Melvin vs. Melvin, 6 Md. 541, where many authorities are referred to and examined. See, also, M'Ilroy & another vs. M'Ilroy & another, 1 Rawle 433.
A witness is not incompetent because he considers himself under an honorary obligation, respecting the matter in controversy in favor of the party calling him; nor will his mere belief 

 [*519]  that he has an interest in the controversy, exclude him. How far his credibility may be affected by such matters the jury are to decide. 1 Greenlf. on Ev., sec. 388, Stimmel vs. Underwood, 3 G. & J. 282.
The objection to the witness in this case, on the ground of interest, is alleged to be a valid one,  [**15]  because the assignment of his claim to Harper was not bona fide, but merely a contrivance to make himself a witness; and therefore he has a direct pecuniary interest in the result of this suit. That the assignment was only a contrivance for such purpose, is said to be manifest, because the witness declared, at the time, to Harper, that he expected to be a witness, and stated upon his voir dire, that he would not make Harper pay the remaining note unless there was a recovery in this suit. The only evidence on the subject is the statement of this witness on his voir dire. It is true, he says, he sold and assigned his claim against the estate of the plaintiff's intestate, estimated to be worth $ 900 (some $ 700 of which was dependent upon the result of this suit) for $ 600, to Harper, and received from him two notes for $ 300 each, one of which has been paid, and the other not. That he does not intend to demand payment of the remaining note if the present suit be decided against the plaintiff. But, at the same time, the witness says the sale was fair, and without any conditions between him and Harper that the payment of the said notes should depend upon the result of this [**16]  suit. That he had made an absolute transfer of all his interest, and had a legal right to recover the note from Harper, but would not do so, if this suit was lost; and that if there was a recovery in this suit he would make him pay. On cross-examination, he says, also, it is his intention not to make Harper pay the second note, in case this suit is lost, but that he may see fit to change the same, and that there was no understanding between him and Harper that could prevent his doing so.
In Pegg, et al., vs. Warford, 7 Md. 582, issues were sent from the Orphans Court to try the validity of two wills. The caveatee, in support of the issues on his part, 

 [*520]  offered to swear Rachael J. Warford as a witness, who was a legatee or devisee under both wills, and the caveators objected to her competency on the ground of interest. To show her competent, the caveatee produced two deeds executed by her. One of them professed to convey to her brother, Hamilton Warford, in consideration of natural love and affection, all her interest, "under either of the wills." The other deed, after reciting that doubts had been expressed as to the efficacy of the preceding deed to [**17]  Hamilton Warford, to pass all the interest the grantor had under both wills, and her desire to divest herself of all and every interest in or thereafter to accrue to her under both wills, and each and either of them, "so as to render her a competent witness in relation to both said instruments," conveys to F. W. Brune, in consideration of the premises and the sum of five dollars, all the grantor's interest under said wills, and each and either of them, subject to the legal effect of said deed to Hamilton Warford. The objection to the competency of the witness was overruled in the court below.
In deciding this question, on the appeal, the court say: "It was, with some show of reason, contended that those deeds, having been made merely to restore the competency of the witness, and not being bona fide conveyances, are to be regarded as a fraud upon the law, and, therefore, not effectual to accomplish the purpose intended. Though we have no doubt that such was the design of this transaction, still this court cannot assume as a legal fact, as the case is now presented, that the deeds in question were not executed in good faith. But whether they were or were not, they are sufficient [**18]  forever to conclude the grantor from assailing them upon any such ground, and for this reason, her divestiture of all interest under these testamentary papers, may be said to be complete, by virtue of the deeds in question, and, therefore, she is a competent witness."
If we are to be governed by this decision, and the rules previously stated, relating to the interest requisite to render a witness incompetent, we do not think the evidence in this cause is sufficient to sustain the court below in having 

 [*521]  rejected Paul as a witness. His legal interest, if any, was at least doubtful, remote and contingent. If he has any direct interest in this suit, it seems, from the testimony, to depend upon an honorary obligation.
The case of Crawford vs. Brooke, 4 Gill 213, was referred to in Pegg, et al., vs. Warford, but the court did not think the principle settled in the former case was in conflict with the views expressed in the latter. Nor do we consider it inconsistent with the decision in this.
There the first exception shows that the assignor of the account sued upon, was called as a witness to prove the services charged; and also to prove the [**19]  acknowledgment thereof by the debtor, so as to take the claim out of the operation of the statute of limitations. The witness was objected to, but the objection was overruled.
In the second exception, it appears that upon the cross-examination of this witness, the defendant's counsel asked whether the assignment was not made by him because the account was barred by limitations; and for the purpose of making himself a witness to prove the rendition of the services, and the acknowledgment and promise by the defendant's intestate; the counsel stating that the question was asked for the purpose of showing that the account had not been bona fide assigned. The plaintiff's counsel having objected to the question, the court sustained the objection.
The decision in the first exception was affirmed, in the Court of Appeals, but that in the second was reversed.
In that case, it was not decided, on either exception, that the assignor was incompetent as a witness.
In regard to the second exception, it was held that, under the pleadings, it was competent for the defendant to prove that the account in question had not been bona fide assigned, as required by the Act of 1829, ch. 51, under [**20]  which the suit had been instituted, in the name of the assignee. It was also held that the assignor, having been offered and examined as a witness to sustain the claim, the court below should have permitted the question to have been asked, which the defendant's counsel proposed to ask. The appellate court being 

 [*522]  of the opinion that an assignee could not maintain a suit in his own name, under the Act of 1829, if it be shown that the assignment was made for the purpose of rendering the assignor a competent witness to prove the correctness of the assigned claim, and the liability therefor by the defendant, or whenever it is shown, by proof, that the assignment is not bona fide.
There the question was whether, under the Act of 1829, ch. 51, which authorizes a suit to be brought in the name of an assignee upon a claim bona fide assigned, could maintain a suit in his own name, upon a claim held by him under an assignment not bona fide. The cause of action in the present suit has never been assigned. And the question in reference to the incompetency of Paul as a witness, upon the ground of interest, based on the allegation that the assignment of his claim was not  [**21]  bona fide, is a very different question from that arising under the second exception in Crawford vs. Brooke.
When there exists such an interest as should disqualify the possessor thereof from testifying in relation to matters connected therewith, if, with a view of becoming a witness, he assigns his interest, although such is the purpose of the assignment, it will not, per se, prevent him from being a competent witness. How far the transaction should affect his credibility, is for the consideration of the jury. In one of the deeds, executed by the witness, in Pegg, et al., vs. Warford, it was recited as being her desire to divest herself of all her interest, "so as to render her a competent witness."
The second bill of exceptions contains the testimony of Hannah E. Schofield, which was offered by the plaintiff, for the purpose of enabling him to introduce, as evidence, certain entries in the books of the intestate. This witness testified that, five or six years before her examination, a certain James Smith was the book-keeper of Paul, the intestate; that Smith boarded at her father's house, that she was well acquainted with him, and with his handwriting; that about [**22]  four years then past he left the country and went to England, which was his native country; that he was a young man without family, and, so far as she knew, had no relations in this country, that about three years previous to the trial of 

 [*523]  this case, her father received a letter from said Smith who was then in Australia, where the letter was written; that she (the witness) read the letter and knew it was from him, and that since then he has not been heard from.
The plaintiff then offered to prove, by this witness, that certain entries in the books of the plaintiff's intestate were in the handwriting of the said Smith, for the purpose of offering those entries in evidence. But the defendants objected to the evidence, on the ground that it could only be admitted on proof of the death of said Smith; which objection the court sustained.
It has been long held that entries made by a clerk, in the regular course of business, he having no interest at the time in stating an untruth, should be received in evidence, after the clerk's death, on proof of his handwriting.
Whether such entries should be admitted, when the clerk is living, but is permanently residing beyond the limits [**23]  of the State, conflicting decisions have been made.
If absence is sufficient in any case to render this kind of evidence admissible, it is difficult to imagine one where it would be more proper than in the present. The witness is an Englishman by birth, who came to this country and remained here but a few years. He then returned to England, leaving no relations here, never having been married. More than three years since a letter was received from him, written in Australia, and he has never been heard from since.
Many cases on this subject are collected in the 5th Amer. Ed. of Smith's Lead. Cases, 1 Vol., Margl. page 142, top page 397, in a note to the case of Price vs. The Earl of Torrington.
Holbrook vs. Gay, 6 Cush. Rep. 216, is a case in which, according to the laws of Massachusetts, if the entries in dispute had been made by the party and he had subsequently died, they would have been admissible. But, instead of dying, he became insane, and they were admitted because of the insanity. The court held such evidence to be clearly proper, where the case is one of permanent insanity, the only difficulty being to decide upon the degree of insanity [**24]  that must be shown to justify the admission of such proof.

 [*524]  There are other cases in which the death of a witness, and his becoming insane, are considered as being alike sufficient to authorize their entries to be received in evidence. And several of the cases referred to in the note in Smith's Lead. Cases have held such entries equally admissible, where the witness is absent from the State.
The objection urged in the notes of the appellees' counsel against the evidence being received is, that the witness is alive, and his testimony might have been taken under a commission. But, if possible, it was barely possible, that within any reasonable time, if indeed ever, the testimony could have been obtained by sending the books, containing the entries, under a commission to Australia, in search of a young man whose previous habits of life had shown him to be of a roving or migratory disposition; and he not having been heard of for more than three years.
The third bill of exceptions commences with the testimony of Wm. H. Cowan, one of the plaintiff's witnesses, who stated that he was employed by the plaintiff's intestate, in his life-time, to collect from the defendants [**25]  a claim against them for the construction of a steam engine, and work done in putting it up at the defendants' factory. That the account was made out by Paul, the intestate, and he, the witness, went with the account to the premises occupied by the defendants, where the steam engine was, and there saw Mr. Stimpson, one of the defendants, to whom he presented the account, which Stimpson examined and admitted that the items charged in it were correct, and that the work was done as therein charged; but said it had not been done within the time agreed upon, and had not been done properly; that it had been put upon an imperfect foundation. And Stimpson also said that they had been compelled to employ other machinists, to put it on another foundation, in order to get it in good running order. That they had been put to heavy expenses by reason of not getting the engine in time, and by making necessary alterations in it, and they declined paying the account. Stimpson also said that there was a forfeiture under the contract, of $ 200 a week, for not furnishing the 

 [*525]  engine in time, and that they had suffered more from the delay, and the expenses they had been put to, than the amount [**26]  claimed to be due.
The witness being asked by the defendants' counsel whether he did not know there was a contract in the case, under which the work had been done, replied, he knew there was a contract, but did not mean to say that the work done, was done under it.
The account mentioned by this witness was produced by him and read to the jury. It contains:

________________________________________________________________________________

Sundry items, before the 1st of May 1850,	
      amounting to		$ 213.96	
The engine, charged at contract price, under date,	
      7th of May, 1850,		4000.00	
Sundry items between the 1st of May and 1st of August	
      1850, amounting to		731.71	
      Total amount,		$ 4,945.67	
The credits given are:	
1850.	
March 1. By note at four months,	$ 500.00	
  "  15.   "       "       "	500.00	
April  1.   "       "       "	500.00	
  "   13.   "       "       "	500.00	
  "   20. Old side of engine frame,	8.68	
June   3. Note at four months,	550.00	
		$ 2,558.68	
       Balance,		$ 2,386.99	
________________________________________________________________________________

The plaintiff produced a contract between his intestate, Paul, and the defendants, dated the 16th of February [**27]  1850, the execution of which was admitted. It was agreed therein that Paul should furnish and put up for Manning, Stimpson & Co., the defendants, one engine, and boiler and gearing, to drive two run of stones. After giving a particular description of the machinery contemplated, the contract then provides that the same shall be in complete running order, and 

 [*526]  good workmanlike manner, by the first of May then next, for the sum of four thousand dollars, to be paid in four notes, each for five hundred dollars at four months, one of them to be dated the 1st of March, one the 15th of March, one the 1st of April, one the 15th of April, and the balance in two notes, dated the first of May, at four months, for one thousand dollars each.
By the terms of said contract, Manning, Stimpson & Co. were to do all masonry and brick work for the boiler and foundations of said machinery. And Paul agreed to forfeit $ 200 for every week's delay after the first day of May 1850, provided such delay should not be caused by or through Manning, Stimpson & Co.
Subsequently to the interview between the witness, Cowan, and the defendant, Stimpson, in regard to the account, this suit was instituted;  [**28]  and after that, the witness had another interview with the same defendant, in which he offered to pay the witness $ 1800 for the claim, which offer was refused. This testimony of the witness, in relation to the offer of $ 1800, was objected to by the defendants on the ground that it was an offer of compromise, post litem motam, and not admissible in evidence, which objection was sustained by the court, and excepted to by the plaintiff.
The question presented by this exception is, whether an offer to pay $ 1800 for a claim which had been previously presented to the defendant, amounting to $ 2,386.99, the offer not being accepted, is admissible in evidence against the defendants. The plaintiff's counsel insists that it is because the offer was not accompanied with a caution that it was confidential, or made without prejudice.
This subject is treated of with much clearness in the 4th Amer. Ed. of Phillips on Evi., 1 Vol., page 427, note 124. It is there said: "In general, however, both in England and America, the nature of the negotiation has been looked to, and that the offer was intended to be without prejudice, has been inferred from its being plainly an offer with [**29]  a view to compromise. As observed by a learned judge, (MILLS, J.,) 'Offers of sums, prices or payments, made during an attempt 

 [*527]  to compromise, are not admissible, if not accepted.' Otherwise as to the existence of a fact.'" Again, in the same note, we find it said: "The most, if not all, of the American cases have, like a large majority of the English, gone on the intrinsic character of the transaction, without requiring an express declaration that the communication should be without prejudice." And many authorities are cited in support of these views, to the correctness of which we feel bound to yield our assent.
Looking at the character of the offer before us, and the circumstances under which it was made, we think the court below committed no error in ruling it to be inadmissible.
It appears from the fourth bill of exceptions that the defendants asked the court to instruct the jury as follows: "Upon the pleadings and the proof in this cause, the plaintiff is not entitled to recover, because the plaintiff has offered no evidence from which they can find the value of the work done and materials furnished by plaintiff's intestate to the defendants." Which prayer being [**30]  granted, the plaintiff excepted.
Looking to the contract, which was read to the jury, and the testimony of the witness, Cowan, respecting the interview between him and Stimpson, in relation to the account, we do not think it was proper for the court to have instructed the jury that the plaintiff was not entitled to recover because there was no evidence from which they could find the value of the work done and materials furnished by the plaintiff's intestate.
According to the testimony of Cowan, after Stimpson had examined the account, he admitted the items charged were correct, and that the work was done as charged. In addition to which, the contract shows the price of the machine was to be $ 4000. It is true, that at the interview alluded to, Stimpson said the work had not been done within the time agreed upon, and had not been properly done; that the engine had been put upon an imperfect foundation; that they had been compelled to employ other machinists to put it on another foundation, in order to get it in good running order. He alleged that these, with other objections to the claim, which were stated by him, had subjected the defendants to 

 [*528]  heavy expenses, amounting [**31]  to more than the sum claimed to be due from them, and declined paying the account.
In regard to the complaint relative to the alleged imperfect foundation, the plaintiff's counsel, in their printed argument, refer to the contract as showing that the defendants were bound "to do the work of the foundation."
In such a case, it was the province of the jury to ascertain and determine, from the evidence, whether anything, and if any, what was due to the plaintiff. But they were prevented from doing so, by the court's instruction.
In 1 Greenlf. on Evi., sec. 201, when treating of admissions, one of the rules is thus stated: "Though the whole of what the party says at the same time, and relating to the same subject, must be given in evidence, yet it does not follow that all parts of the statement are to be regarded as equally worthy of credit; but it is for the jury to consider, under all the circumstances, how much of the whole statement they deem worthy of belief, including as well the facts asserted by the party in his own favor, as those making against him." See, also, the authorities cited in the note to this section.
Contrary to this rule, the instruction of the court, necessarily [**32]  assumed, instead of leaving the jury to decide upon, the truth of the excuses alleged by Stimpson, why the defendants should not pay the balance stated as due by the account, the items of which, as also the doing of the work, were admitted by Stimpson, according to the testimony of the witness.
The ruling of the court below will be affirmed on the third bill of exceptions, and reversed on the first, second and fourth.
Judgment reversed and procedendo awarded. 

115 of 196 DOCUMENTS 

AMBROSE A. WHITE and FRANCIS W. ELDER vs. JAMES MALCOLM, and others.--T. PARKIN SCOTT vs. JAMES MALCOLM, and others.--CHARLES WEBB vs. JAMES MALCOLM, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 529; 1860 Md. LEXIS 35 

May 16, 1860, Decided 

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

These appeals are taken from an order of the court below, (PRICE, J.,) setting aside certain sales of real estate in Baltimore, which had been mortgaged by Robert Howard to White and Elder. The sales were made under the Act of 1826, ch. 192, by T. Parkin Scott, as attorney, agent or trustee for the mortgagees, and the appellant, Webb, was a purchaser of a part of the property sold. The notice or advertisement of sale is as follows:

"SALE OF MORTGAGED PROPERTY IN THE COUNTY.

Under authority from Ambrose A. White and Francis W. Elder, the undersigned, attorney and trustee, will offer at public sale, at the Exchange sales rooms, No. 19, South Gay street, Baltimore city, on Monday the 29th day of November 1858, at one o'clock, P. M., all the following described lands and premises, situate and lying in Baltimore county, on or near to the Philadelphia road, and which property was mortgaged by Robert Howard and wife to said White & Elder, by deed dated 6th October 1857, recorded in Liber H.M.F., No. 9, folio 138, &c., viz:

1. All that part of 'Gay's Enlargement,' containing seventy-five acres and twenty perches of land,  [**2]  more or less, binding on said Philadelphia road, about five miles out, and particularly described in a deed from White & Elder to said Howard, dated 19th June 1854, recorded in Liber H.M.F., No. 8, folio 525, &c.

2. All that part of lot No. 44, of the Principio Company's lands, about seven and a half miles from Baltimore city, containing one hundred and eighteen acres, three roods and two perches of land, described in a deed from Joshua H. Dulaney and wife to the said Robert Howard, dated 18th September 1845, recorded in Liber A.W.B., No. 357, folio 117, &c.

3. All that part of lot No. 55, of the Principio Company's lands, about nine miles from Baltimore city, binding on the Philadelphia road, containing one hundred and thirty-four acres of land, described in a deed from Tagart and Holloway, trustees, to said Howard, dated 3d December 1852, recorded in Liber H.M.F., No. 4, folio 11, &c.

4. All those lands and premises, about nine miles from Baltimore city, containing seven hundred and eighteen acres of land, described in a deed from Mary Louisa Ridgely and John Glenn, administrators, to said Howard, dated 1st July 1848, recorded in Liber A.W.B., No. 339, folio 137, &c.  [**3]  

5. All that land, about twelve miles from Baltimore city, binding on the Philadelphia road, containing seven hundred and fifty acres of land, described in deed from J. Pennington, executor of Prudence Howard, to said Robert Howard, dated 22d May 1848, recorded in Liber A.W.B., No. 397, folio 45, &c.

The terms of sale are: one-third cash, and the balance in six and twelve months, with interest and security.

T. PARKIN SCOTT,

Trustee and Attorney.

S. H. GOVER, Auctioneer."

The exceptions and other facts of the case are sufficiently stated in the opinion of this court.  

DISPOSITION:
Order reversed and the cause remanded.  

HEADNOTES:

An appeal lies from a decree or decretal order passed by the court in a case where a sale of mortgaged property has been made and reported, under the Act of 1826, ch. 192.

The trustee, agent or attorney for the mortgagees, by whom the sale, under the Act of 1826, ch. 192, was effected, may appeal from an order setting aside such sale, because such order injuriously affects his claim for commissions.

The 10th sec. of the Act of 1825, ch. 203, requiring thereafter all mortgage sales to be made in the county where the mortgaged premises are situated, applies only to sales under that Act; it is no objection to a sale under the Act of 1826, ch. 192, that it was made in the city of Baltimore, and not in Baltimore county, where the land was situated.

An advertisement or notice of sale, under the Act of 1826, ch. 192, describes the land to be sold as lying in Baltimore county, on or near the Philadelphia road, and refers to the mortgage thereof, and then in describing the five lots or parcels, into which it was divided, gives the number of acres in each, refers to the deeds by which each was conveyed to the mortgagor, and describes the first as about five, the second about seven and a half, the third and fourth about nine, and the fifth about twelve miles out from Baltimore city. HELD:

That there was no ground for setting aside the sales on account of the description of the property given in this notice, being insufficient.

A bond given by the attorney, agent or trustee of the mortgagee, where the sale is made by such attorney, agent or trustee, is a compliance with the requirements of the Act of 1826, ch. 192, as to a bond.

The Act of 1826, ch. 192, requires, at least, "twenty days notice in two or more of the daily newspapers published in said city, of the time, place, manner and terms of sale," to be given. The sale took place on the 29th of November 1858, and the land was situated in Baltimore county. The advertisement was inserted in two daily newspapers, published in Baltimore city, on the 2nd of November, and was continued in these papers, twice a week, from that day to the day of sale. It was also inserted in two weekly newspapers published in Baltimore county, commencing on the 6th of November, and continued weekly till the day of sale. HELD:

That this was a sufficient compliance with the law; the Act does not require twenty days daily notice, or that the notice should be inserted twenty times in two daily papers.

The Act of 1826, ch. 192, prescribes no special terms of sales; it does not say whether they shall be for cash or on credit, and the terms of "one-third cash, and the balance in six or twelve months, with interest and security," being reasonable, and not prohibited by law, present no valid objection to a sale.

The fact that the trustee, under the Act of 1826, did not, in his report, state the terms of sale, nor a compliance with them by the purchaser, is not, in the absence of proof of fraud, surprise or undue advantage, sufficient to set aside the sale; the trustee should have been allowed and required to amend his report by correcting the omission so far as the facts would warrant.

When a sale has been made, under a mortgage or decree before the application of an insolvent, the rights of the purchaser will be respected and sustained, and a sale under the Act of 1826, ch. 192, will not be set aside because the mortgagor after the sale and report thereof, and before the ratification, became an insolvent petitioner and had a trustee appointed.

The Act of 1826, ch. 192, provides that all persons interested in the mortgaged property, "may, at any time within twenty days after the sale thereof, file the reasons, if any exist, why the said sale should not be affirmed." HELD:

That this provision does not prevent exceptions after the twenty days, but prohibits the ratification for that period, thus securing that length of time for presenting objections; and exceptions may be filed at any time before ratification of the sale.  

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

1st. As to the first exception, 1st. That Howard, by the deed of the 25th of January 1858, conveyed all his equity of redemption in the mortgaged premises to the Great Falls Iron Co., eleven months before his application for the benefit of the insolvent laws, so that nothing in that property passed to his trustees in insolvency, and, therefore, they have no standing in court. 3 Bland, 525, Post vs. Marshall. 9 Gill, 341, Higgins vs. Horwitz. 2nd. That although the property not sold [**4]  will pass to the trustees in insolvency, yet when a sale has been made by a judicial officer, before the insolvency occurred, the rights of the purchaser thus acquired will be respected and sustained by the court. 6 Gill, 226 to 231, Cunningham vs. Schley. 7 Gill, 269, 287, Johnson vs. Dorsey. In the case of Zeigler vs. King, 9 Md. Rep., 330, the land had not been sold, but only advertised for sale, before the application of the insolvent.

2nd. As to the third exception, that the bond required by the Act of 1826, ch. 192, was not, in this case, to be given by the mortgagees, but by the attorney and trustee, which was done. By the 2nd sec. of the Act, the party who is to act or who is authorized to sell, not the mortgagee, is the one to give the bonds, and if a trustee, agent or attorney is appointed by the mortgagee to effect the sale, he is the one to give the bond, and such has been the universal practice under the law. 9 Md. Rep., 357, Wilson vs. Watts.

3rd. As to the fourth exception, 1st. That the sales were made in conformity to the letter and spirit of the Act of 1826. 2nd. That when the Act of 1825, ch. 203, sec. 10, and the Act of 1826, ch. 192, were passed, Baltimore [**5]  city and county formed parts of the same political divisions of the State. 3rd. That the 10th sec. of the Act of 1825, applies only to sales made in conformity with the special provisions of that Act, and has no application to sales made under the Act of 1826. 7 Gill, 286, Johnson vs. Dorsey. Ibid., 305, Williams vs. Williams.

4th. As to the fifth and sixth exceptions, That the notice given, as admitted in the case, was a compliance with the requirements of the Act of 1826. The Act does not require twenty days daily notice to be given. Sheriffs do not give daily notice of sales. All that this law requires is, that publication should be made twenty days before the time of sale. In some instances, these notices do not appear more than once in two weeks. Daily publication would put the parties to unnecessary expense. 7 Gill, 269, 287, Johnson vs. Dorsey.

5th. As to the eighth exception, 1st. That no special terms of sale are prescribed by the Act of 1826, and that a sale on credit was an indulgence by the mortgagees to the mortgagor and his assignees. 2nd. That the mortgagor was consulted as to the terms of sale, and assented thereto. 2 H. & G., 98, David vs. Grahame.

6th.  [**6]  As to the seventh, ninth, tenth, eleventh, twelfth and thirteenth exceptions, 1st. That the descriptions were as perfect as could be made without giving course and distance, which is unnecessary, 2nd. That the descriptions both in the notice of sale and at the sales as reported, were approved at the time by the mortgagor. 3 Md. Ch. Dec., 226, Farmers & Planters Bank vs. Martin & Travers.

7th. As to the fourteenth exception, 1st. That the terms of sale sufficiently appear by the report and advertisement of the sale. 2nd. That the sales may be ratified although the purchasers have not complied with the terms of sale, and compliance may be afterwards enforced. The court below set aside the sales solely upon the ground that the terms of sale were not reported. But can the purchaser have his title under the sale affected because the report is not full? He may have complied with all the terms of sale, and yet the sale is to be set aside because of an error or neglect on the part of the trustee. If the trustee has failed to report he can be made to do so, and if he has not made a full report, he should be allowed and required to do so; his report could be, and should have been, amended,  [**7]  even at the hearing of the exceptions. If such objections as this are to be sustained, courts of equity will become a nuisance.

8th. That all these exceptions, having been filed more than twenty days after the sale, were too late, and not properly before the court and ought not to have been considered by it. The 5th section of the Act of 1826, ch. 192, is, in this respect, mandatory in its terms, and where such is the case nothing will excuse. A widow is given a certain time within which to renounce the will, and it has been decided, that no circumstances or excuse, not even incapacity from any cause, will allow her to renounce after that period. The exceptions of the Great Falls Iron Company, besides being too late, were not served on the appellants, nor set down for hearing, nor was any testimony taken to sustain them; they should have been taken from the file.

9th. As to the motion to dismiss the appeals, 1st. That the Act of 1826, ch. 192, like that of 1833, ch. 181, does not give any new jurisdiction to the court, but only facilitates the remedy in cases where the court had jurisdiction before. 7 Gill, 304, 305, Williams vs. Williams. 9 Gill, 345, Higgins vs. Horwitz.  [**8]  3 Md. Ch. Dec., 226, Farmers & Planters Bank vs. Martin & Travers. 2nd. That the jurisdiction of the court becomes complete on the report of the sale, and jurisdiction once obtained, the case is to be governed by such equitable principles as are applicable to sales under decrees. Act of 1826, ch. 192, sec 5. 9 Md. Rep., 357 to 359, Wilson vs. Watts. These considerations and authorities show, that an appeal will lie from this order.

10th. That Mr. Scott, the trustee, has an interest in his commissions, costs and legal fees, which, being injuriously affected by this order, gives him a right of appeal. 8 Md. Rep., 299, Salmon vs. Pierson. 14 Md. Rep., 23, 24, Teackle vs. Crosby & Bevan.

Jas. Malcolm and Thos. S. Alexander, for the appellees, argued:

1st. White & Elder, the mortgagees, have not filed their bond of indemnity, as required by the 2nd sec. of the Act of 1826, ch. 192. The bond filed by the trustee does not meet the requirements of this section. Where a party proceeds under this Act, he must comply strictly with its terms. By it the person authorized to sell is the morgagee, his heirs or assigns; the party who acts under him is the agent of the mortgagee, and [**9]  the latter must give the bond, which is to remain as an indemnity to all persons interested.

2nd. The trustee did not give twenty days notice of the time, place, manner and terms of sale in two daily newspapers printed and published in the city of Baltimore, or in Baltimore county, as required by the 1st sec. of the Act of 1826, ch. 192. Twenty days notice necessarily requires daily notice for twenty days. The courts have decided that weekly notice for three weeks means notice once a week for three successive weeks, and hence twenty days notice must mean daily notice for twenty days.

3rd. The notice of sale does not sufficiently describe the premises proposed to be sold. Gay's Enlargement, seventy-five acres, more or less, binding on the Philadelphia road, about five miles out, are not sufficient descriptions; they are vague, indefinite and uncertain, and do not constitute a sufficient description. 9 Md. Rep., 230, Kauffman vs. Walker.

4th. The sales were made in Baltimore city, beyond and without the limits of Baltimore county, where the lands were situated. The 10th sec. of the Act of 1825, ch. 203, expressly forbids this, and requires the sale to be made in the county.  [**10]  The language of this section is general, applying to all sales thereafter to be made, and is still in force and unrepealed by the adoption of the Constitution.

5th. The trustee has not reported the terms on which the sales were made, nor compliance by the purchasers, or any of them, with the terms, in whole or in part. The Act of 1826 requires the report to be made within fifteen days from the time of sale, and the trustee is required to report all the terms of sale, otherwise it cannot be ratified.

6th. The validity of the sales is altogether dependent on the matters stated in the report, and any defect therein is not to be cured by evidence taken on the exceptions to the sales. If, however, the court should decide otherwise, and look to the notice of sale, it will appear that the trustee proposed to sell in part for cash, and in part on time. Such terms are not warranted by law; the sales must be made for cash.

7th. Mr. Scott has no interest in the controversy save only as trustee, agent or attorney for the mortgagees, and having, therefore, nothing more than a naked power, he has no such interest as will entitle him to appeal, and his appeal should be dismissed. 14 [**11]  Md. Rep., 23, Teackle vs. Crosby & Bevan.

8th. All the appeals should be dismissed on the ground that the order from which they were taken was passed in the exercise of a specially delegated authority, and not in the progress of a cause at law or in equity, and in such case no provision is made for an appeal. Its jurisdiction is only one of supervision, and is only acquired by the filing of the bond. That an appeal will not lie in such a case, no provision in the Act having been made therefor, see 8 Md. Rep., 5, Lammott vs. Maulsby; 7 Gill, 157, Carter vs. Dennisin; 10 Md. Rep., 398, Robertson vs. American Homestead Association. The case is wholly distinguishable from a case under the Act of 1833, ch. 181.

9th. It is shown that a part only of the property sold is covered by the deed from Howard to the Great Falls Iron Co. In the present state of the proceedings, it would be difficult to ascertain what parts, in particular, are so conveyed. By the application of Howard for the benefit of the insolvent laws and the appointment of his trustees in insolvency, the title to the mortgaged premises became vested in such trustees, and for this reason the sales ought not to be ratified.  [**12]  9 Md. Rep., 330, Zeigler vs. King.

10th. The exceptions were all filed in time. We could not object till the report was made, and the twenty days runs from that time. The 5th sec. of the Act of 1826, ch. 192, is not to be construed as excluding all objections beyond twenty days after the day of sale, but simply as preventing a ratification before the expiration of that period. By the 3rd sec., the trustee is allowed fifteen days to make his report, and in many cases it would be impossible to file the exceptions within twenty days of the sale; they are not, therefore, too late if they are filed before the ratification of the sale.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*537]  ECCLESTON, J., delivered the opinion of this court.
These three appeals are all taken from an order of the Circuit court for Baltimore county, setting aside certain sales of real estate, situate in that county, which had been mortgaged by Robert Howard to White & Elder. The sales were made and reported by T. Parkin Scott, Esq., as "attorney, agent or trustee," for the mortgagees, under the Act of 1826, ch. 192.
Before the sales, the Great Falls Iron Company [**13]  received a deed from Robert Howard, which it is alleged, by the appellants, conveyed all his equity of redemption, in all the mortgaged premises then held by or remaining in him.
After the sales, under the mortgage, James Malcolm and William H. Brown, were appointed trustees on the application of the said Howard for the benefit of the insolvent laws.
The mortgage to White & Elder, from Howard and his wife, is dated the 6th of October 1857.
The conveyance from Howard and wife to the Great Falls Iron Company bears date the 25th of January 1858.
On the 17th of June 1858, White & Elder executed the power of attorney or authority to Thos. Parkin Scott, authorizing him to sell the mortgaged premises, "according to the provisions of the Act of Assembly, in such case made and provided." And on the 22nd day of the same month, the said T. P. Scott gave bond to the State, with security, which was duly filed and approved, conditioned to "abide by and fulfil any order or decree which should be made by the Circuit court of Baltimore county, in relation to the sale of the mortgaged premises, or the proceeds thereof."
The said power of attorney, mortgage and bond, were filed in the said Circuit [**14]  court, on the day last mentioned.
Mr. Scott, as trustee and attorney, made sundry sales of 

 [*538]  the mortgaged premises, on the 29th of November 1858, and on the 3rd of December following, reported the same to the said court.
It is admitted that Robert Howard applied for the benefit of the insolvent laws, on the 21st of December 1858, when James Malcolm and William H. Brown were appointed his trustees, and bonded as such.
On the 23rd of the same month these trustees filed two exceptions to the sales, and on the 19th of February 1859, they filed twelve additional exceptions.
The first two are:
1. That said Robert Howard applied for the benefit of the insolvent laws upon the 21st of December 1858, and your petitioners were duly appointed his trustees, and have duly bonded as such, and therefore the sale reported in this case ought not to be ratified.
2. They also allege that said mortgage was given upon a usurious consideration of ten thousand dollars, and ought not therefore to be ratified; and for other reasons that will be urged upon the hearing of these objections to said sale.
The additional exceptions referred to are the following:
3. That the said White and Elder [**15]  have not filed their bond of indemnity, as required by the section 2, of the Act of 1826, ch. 192.
4. That the sales reported were made in the city of Baltimore, beyond and without the limits of Baltimore county.
5. That the said trustee and attorney did not give twenty days notice of the time, place, manner and terms of sale in two daily newspapers, printed in the city of Baltimore.
6. That the said trustee and attorney did not give twenty days notice of the time, place, manner and terms of sale in two daily newspapers, printed in Baltimore county.
7. That the said attorney and trustee did not in any notice of sale, given by him, sufficiently describe the premises proposed to be sold.
8. That the sales were made on terms not authorized by law.
9. That the sale of lot No. 1, as described in the report of 

 [*539]  the said trustee and attorney, is not warranted by any notice of sale given by said trustee and attorney, and that the said description is vague, indefinite and uncertain.
10. That the sale of lot No. 2, as described in said report, is not warranted by any notice of sale given by said trustee and attorney, and that the said description is vague, indefinite and uncertain.  [**16]  
11, 12, 13. These three exceptions are similar to the 10th, and relate to the sales of lots Nos. 3, 4 and 5.
14. That the said trustee and attorney hath not made a report of the terms on which said sales were made, nor of the compliance by the purchasers, or any of them, with said terms of sale, in whole or in part.
On the 21st of May 1859, exceptions to the ratification of the sales were filed by the Great Falls Iron Company, "for the reasons assigned" in the former exceptions.
Mr. Scott, as solicitor for White & Elder, objected to these exceptions:
1st. Because they were not filed in time.
2nd. Because they were not filed until the day for hearing the exceptions of the trustees in insolvency.
3rd. Because the testimony taken on the part of the said trustees was not admissible in evidence, on these exceptions. And therefore the court was asked to direct the clerk to take said exceptions from the file, and that the court would disregard them, because not taken in conformity with the provisions of the Acts of 1826, ch. 192, and 1845, ch. 352.
On the 26th of May 1859, the judge below passed the following order: "The exceptions against the sales made and reported by T. P. Scott,  [**17]  trustee and attorney for the mortgagees, filed by James Malcolm and William H. Brown, trustees for the creditors of Robert Howard, and those filed by the Great Falls Iron Company, and the motion filed by the said White & Elder to take the aforesaid exceptions of the Great Falls Iron Company from the files of the court, standing ready for hearing and being argued by counsel for the parties and submitted, and the proceedings being considered by the court, it is thereupon adjudged and ordered 

 [*540]  for the reasons stated in the opinion of the court, filed with this order, that the aforesaid sales, so made and reported as aforesaid, be and the same are hereby set aside and annulled."
The reason assigned in the opinion of the court for setting aside the sales, or why they should not be confirmed is: "Because the terms on which the sales were made, are not stated in the report."
From the order setting aside the sales these appeals are taken.
The appellees have contended that all said appeals should be dismissed, on the ground that the order on which they have been taken, was passed in the exercise of a specially delegated authority, and not in the progress of a cause at law or in [**18]  equity, and that in such case no provision is made for an appeal.
But, in Williams vs. Williams, 7 Gill 302, the right of appeal was sustained, in a case arising under the Act of 1833, ch. 181, in regard to a sale of mortgaged property; which Act provides a summary mode of effecting such a sale, different from the established general practice in chancery of obtaining decrees for selling property under a mortgage. And, in analogy with the principle decided in that case, a majority of the judges, sitting in the present case, are of the opinion that appeals may be taken from decrees, or decretal orders passed by the court, where sales have been made and reported, under the Act of 1826, ch. 192.
The 5th section of that Act provides for a decision, by the court, in reference to reasons filed, why a sale should not be affirmed, as also in regard to claims for the proceeds of the property; and then the section declares that, "said court shall have the same power in the premises as they now have over sales made by trustees of their own creation, or in the distribution of moneys in the hands of such trustees."
The appellees have said, conceding it to be true, that parties [**19]  whose rights are affected by such an order as the one before us, may appeal, still as Mr. Scott has no interest in the controversy, save only as trustee, agent or attorney for the mortgagees, he has no right to appeal.

 [*541]  But such a position is at variance with what is said in Salmon, Trustee of Boon, vs. Pierson, 8 Md. 297, and in Teackle, Trustee, vs. Crosby & Bevan, 14 Md. 14 and 24. In both of which cases the principle is most distinctly announced, that where a decision is made which injuriously affects the claim of an insolvent's trustee for commissions, he may appeal. This principle is considered properly applicable to the present case.
The fourth exception is an objection to the sales, because they were made in the city of Baltimore, and not in Baltimore county.
In support of this exception, the Act of 1825, ch. 203, sec. 10, has been relied upon. It provides, "That all mortgage sales, after the first day of May next, shall be made in the county where the mortgaged premises are situated; and provided that where the lands described in any mortgage, are or shall be situated in more than one county; in such case [**20]  the sale thereof may be made in either of the counties within which such lands are situated."
The 3rd, 4th, 5th, 6th, 7th and 8th sections of the Act, contain provisions exclusively applicable to mortgage sales, which should be made according to the mode established by that law. And although it may be said the 10th section is not, in express terms, restricted to mortgage sales under that Act, yet, looking to the other sections which have been mentioned, it is believed, by a majority of the court, that the 10th section should be construed as having reference to such sales only. It is, therefore, not applicable to the sales now in dispute.
The 7th, 9th, 10th, 11th, 12th and 13th exceptions present objections based upon the ground that the notice or advertisement of sale given by the trustee and attorney, did not sufficiently describe the premises intended or proposed to be sold.
The notice, as given, was not made part of the report of sales, but was filed, and appears in the record. Upon examination thereof, a majority of the court think there was no ground for setting aside the sales on account of the description of the property given in the notice.

 [*542]  The third exception [**21]  assumes that the 2nd section of the Act of 1826 should be construed as requiring the bond therein provided for, to have been given by the mortgagees, and that the bond of the attorney and trustee was not a compliance with the requirements of the law. In this we do not concur.
The first section authorizes a mortgagee or mortgagees, or his, her or their duly authorized attorney, agent or trustee, to sell the mortgaged property, as fully and freely in every respect, as any trustee acting under a decree of any court, may do.
The second section then provides, "That before any person shall be entitled to act in virtue of the authority vested by the preceding section, he or she shall give bond," &c. Looking to the language of the whole section, it does not seem to require more than one bond. It directs that "such bond shall be and remain as an indemnity to and for the security of all persons interested in such mortgaged property, or the proceeds thereof." If, then, where the sale is to be made by an attorney or trustee, the law is to be understood as requiring the bond to be given by the mortgagee, and the law does not provide for one by the trustee, what security will the mortgagee [**22]  have for his interest in the proceeds of the property?
It can hardly be supposed the Legislature intended the attorney or trustee should be authorized to sell without a bond.
The third section declares "that every person making sale of mortgaged property under the authority of this Act, shall make a report, under oath or affirmation, of the mode of their proceeding, and of all matters done in pursuance of such authority, and of the fairness of the sale," &c. It cannot well be doubted that such report is to be made by the attorney or trustee, when the sale is made by him. If so, why may not the attorney or agent be considered as the person required to give bond, before he "shall be entitled to act in virtue of the authority vested by the preceding section?" When he receives from the mortgagee a power to sell, he surely is a person who is to act in making the sale, and, in so doing, he is to act in virtue of the provisions of the law on the subject.

 [*543]  The fifth and sixth exceptions object to the sales, because sufficient notice of the time, place, manner and terms of sale was not given.
It appears the sales took place on the 29th of November 1858. The advertisement [**23]  of the intended sale, it is admitted, was inserted in two daily newspapers, printed and published in Baltimore city, on the 2nd of November 1858, and was continued in said papers twice a week from that day until said day of sale. That it was also inserted in two weekly newspapers printed and published in Baltimore county, commencing on the 6th of November 1858, and continued weekly until the said day of sale.
The law was passed when Baltimore city was part of Baltimore county, the title of the law being, "An Act relating to mortgages in the city and county of Baltimore." And the first section requires at least "twenty days notice in two or more of the daily newspapers published in said city, of the time, place, manner and terms of sale."
The appellees have contended that nothing short of twenty days daily notice, is a sufficient compliance with this provision, and, therefore, the notice admitted to have been given in this case did not gratify the requirement of the law.
But this view is not consistent with the principle adopted in Johnson vs. Dorsey, 7 Gill 269. There a sale was made under a decree requiring the trustees to give "at least three weeks previous [**24]  notice, inserted in some newspaper or papers, and such other notice as they might think proper." It was admitted that the trustees advertised the sale once a week for three weeks, and once on the day of sale, in two of the daily newspapers in the city of Baltimore. The court held that to be a legal notice of the sale. It was before the city and county were separated, politically, under the present Constitution, and the land was situate in the county. If the notice there given was a compliance with the decree, the present should be considered sufficient under the Act of 1826. That does not require twenty days daily notice, or that the notice should be inserted twenty times in two daily papers.
The Act of 1816, ch. 129, in relation to sales of negroes 

 [*544]  and lands, under writs of fieri facias or venditioni exponas, requires notice by advertisement set up at least twenty days before the day of sale, at the court-house door of the county, and other public places, "and also published for the same period of time, previous to the day of sale, in some newspapers, provided there be any printed in the county where such sale may be made."
This certainly directs publication [**25]  in the newspapers, where there are any in the county, "at least twenty days before the day of sale," and it is not believed that this law, of so many years standing, has, in any portion of the State, ever been construed as requiring twenty days daily advertisements, or twenty insertions in the newspapers. Such a construction would render sales very expensive where there are daily papers; and not only expensive, but subject them to great and needless delay where weekly papers alone are published.
The eighth exception raises an objection, which assumes the sales were made on terms not authorized by law. In support of this exception it has been contended that the trustee and attorney had no power to sell on credit, but for cash alone.
The Act of 1826 prescribes no special terms of sales. It does not say whether they are to be for cash or on credit.
The terms, according to the advertisement, were, "one-third cash, and the balance in six months and twelve months, with interest and security." Considering these reasonable, and not prohibited by law, they present no valid objection to the sales.
The fourteenth exception objects to the sales, because the trustee and attorney [**26]  in reporting them, neither stated what the terms were, nor the compliance with them, by the purchasers, or any of them, either in whole or in part. The first branch of this objection is the ground on which the court below set aside the sales. Instead of such an omission being considered sufficient to require the sales to be annulled, in the absence of any proof of fraud, surprise or undue advantage, the rights of purchasers should have induced the court to have authorized, and indeed required the trustee and 

 [*545]  attorney to amend his report, by correcting the omission, so far as the facts would warrant. We have seen already, that by the 5th section of the Act of 1826, when reasons are filed in objection to the affirmance of a sale, the court have the same power in the premises as they have over sales made by trustees of their own creation.
The first exception takes the ground that, on the 21st of December 1858, Robert Howard applied for the benefit of the insolvent laws, when James Malcolm and William H. Brown were appointed his trustees, and therefore these sales ought not to be ratified.
By way of reply to this exception the appellants say, that by deed of the 25th [**27]  of January 1858, before his application for the benefit of the insolvent laws, Robert Howard conveyed all his equity of redemption in the mortgaged premises to the Great Falls Iron Company, so that nothing passed to his trustees in insolvency, and therefore they have no standing in court.
It is undoubtedly true that if the deed from Howard to the Great Falls Iron Company did convey all his equity of redemption in the mortgaged premises, nothing in said property passed to Howard's trustees, and they have no interest which can give them a standing in court.  Higgins, et al., vs. Horwitz, 9 Gill 341.
But, under the views we have taken of this case, it is not deemed necessary to examine minutely at this time, whether the deed to the Great Falls Iron Company conveyed Howard's equity of redemption in all the mortgaged property then held by or remaining in him. For although property not sold at the time of an insolvent's application, will pass to the trustee, yet when a sale has been made under a mortgage or decree, before the application of an insolvent, the rights of the purchaser, thus acquired, will be respected and sustained.
In support of this exception the [**28]  appellees have referred to Zeigler vs. King, 9 Md. 330. There, however, the sale had not been made, but only notice given of an intended sale, before the insolvent's application. And there has been 

 [*546]  no case in Maryland in which it has ever been held, that a sale of mortgaged property actually made and reported, for ratification, to a court having jurisdiction over the subject, has been set aside, simply because the mortgagor, after the sale and report thereof, and before the ratification, became an insolvent petitioner, and had a trustee appointed. Nor do we think the present sales should be annulled for the reason stated in the first exception.
The second exception alleges usury. It was not urged in the argument before us, because the counsel thought it would be more appropriately considered with reference to the application of the proceeds of sales.
The appellants have contended that the court should not have considered any of the exceptions, because none of them were filed within twenty days after the sales.
On that subject the 5th section of 1826 provides, that all persons interested in the mortgaged property, "may, at any time within [**29]  twenty days after the sale thereof, file the reasons, if any exist, why the said sale should not be affirmed."
We do not understand this provision as intended to prevent exceptions after the expiration of the twenty days, although the sale may not have been ratified, but to prohibit the ratification for twenty days, thereby securing to persons interested that length of time to present objections against the sale.
These sales could not have been ratified until the certificates of publication of the report of sales were before the court, and they were not presented until some time in May 1859, long after the expiration of twenty days after the sales.
It has been insisted by the appellants' counsel, (and we think correctly,) that, at the hearing of this case, the court might have allowed the attorney and trustee to have amended his report. And can such be the privilege of one side, and yet the other have no right to object to the sale, as it appears by an amended report, merely because the sale has been made more than twenty days?
There is another hardship resulting from the appellants' doctrine. By the 3rd section of the Act, the report of sale may be made at any time within fifteen [**30]  days after the sale. 

 [*547]  This is, virtually, allowing but five days for the filing of exceptions, if they are to be excluded at the end of twenty days after the sale has been made. What exceptions may be proper cannot be well ascertained, in every case, before the report is presented to the court. If it should not be filed until the fifteenth day, and before that an injured party has been required to leave home for a distant place, and should be, necessarily, absent until after the expiration of the twentieth day, the appellants' construction of the law would exclude such a party from any relief, even although the sale may not have been ratified, and although there may be valid objections to the ratification of the sale, known to the party.
According to the long and well settled practice in this State, when a sale is made under a decree in chancery, an order of ratification nisi is passed and published, in which it is ordered that the sale shall be ratified, unless cause to the contrary be shown on or before a particular day therein named. If, however, after that day, but before final ratification, objections to the sale shall have been filed, they have never been [**31]  considered as coming in too late to be heard. And if so, why should the 5th section of the Act in question be held to exclude all exceptions after twenty days subsequent to a sale? We do not think any good reason has been, or can be urged, why the like construction should not be given to the Act which has been uniformly applied to the order nisi in chancery.
On the 26th of May 1859, the court passed the order annulling the sale. On the 21st of the same month, the exceptions of the Great Falls Iron Company were filed, all others having been previously filed. From the views already expressed, it may be seen that we do not think the exceptions of the company were too late to have been considered by the court, and consequently the appellants were not entitled to have them taken from the file, or dismissed.
The order appealed from will be reversed and the cause remanded for further proceedings, the appellees to pay the costs in this court.
Order reversed and the cause remanded. 

116 of 196 DOCUMENTS 

WILLIAM O. EICHELBERGER vs. RICHARD S. HARDESTY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 548; 1860 Md. LEXIS 36 

May 16, 1860, Decided 

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

This was a proceeding in the court below for the sale of mortgaged property under the Act of 1826, ch. 192. The mortgage was executed by the appellant to the appellee on the 26th of November 1856, and the property was situated in the city of Baltimore. Several exceptions to the ratification of the sale were filed by the mortgagor, but the only one relied on denied the jurisdiction of the Superior Court to proceed under this Act. The court (LEE, J.) overruled the exceptions, and ratified the sale, and from this order the mortgagor appealed.  

DISPOSITION:
Order affirmed, with costs, and cause remanded for further proceedings.  

HEADNOTES:

The Act of 1826, ch. 192, relating to mortgages in the city and county of Baltimore, has not been repealed by the adoption of the present Constitution; it is still in force, and the Superior Court of Baltimore city has jurisdiction thereunder in case the mortgaged property is in that city.  

COUNSEL:
Wm. A. Stewart, for the appellant, insisted that the Act of 1826, ch. 192, does not now operate in the city of Baltimore:

1st. Because the power therein conveyed was special and limited. Before any person can act under this law he must give bond, to be approved by Baltimore county court, or the clerk thereof, to abide by and fulfil any order or decree which shall be made by Baltimore county court in relation to the sale of the mortgaged property, or the proceeds thereof. The sale so made must be reported to Baltimore [**2]  county court, and Baltimore county court alone is to ratify the sale. The court here spoken of ceased to exist on the 1st of December 1851, when it was superseded by the judiciary elected under the new Constitution.

2nd. Because the application of this Act to mortgages in Baltimore city expired with Baltimore county court, or, in other words, it was not transferred to the Superior Court, the powers of which are thus defined in sec. 11 of Art. 4 of the Constitution: "The said court shall have jurisdiction as a court of equity within the limits of said city, and in all other civil cases which have not been heretofore assigned to the Court of Common Pleas."

3rd. The following questions in connection with this matter, arise under this section of the Constitution. Is this a case in equity? If so, then the equity powers conferred on the Superior Court are those formerly possessed by the Chancellor, (Act of 1852, ch. 16,) and the Chanceller never had jurisdiction under the Act of 1826, ch. 192, under which the sale in this case was made. If special equity powers, they must be conferred by Act of Assembly, as in the case of decrees under the Act of 1833, ch. 181, which are conferred [**3]  on the Superior Court by the Act of 1852, ch. 198. In neither case can the Superior Court act upon the matter as a court of equity, although these proceedings appear by the record to be on the equity side of that court.

4th. If not a case in equity, is this a civil case contemplated by the Constitution? The Constitution, taking it in the common sense view in which it was understood by the people who adopted it, could not mean by a civil case, an ex parte proceeding, or a special limited power. It meant to confer jurisdiction in such cases as replevin, ejectment, mandamus, &c., and the clerk of the court was given charge of law and equity dockets, (Art. 4, sec. 15,) and not of such matters as that now before the court. The words, "cases in law and equity," are used in Art. 3, sec. 2, of the Constitution of the United States, and the word "case," has received an interpretation by the Supreme Court in 9 Wheat., 819. The legislative interpretation of the words, "civil suit or action," may be found in the Acts of 1852, chs. 76, 169, 177, 336. See, also, 4 Gill, 301, Bell vs. The State; 5 Gill, 88, Williams vs. Williams. The only reason why the mortgagee should pursue the Act of 1826,  [**4]  instead of that of 1833, is because under the latter, it is required that he should make oath of the amount due and remaining unpaid before the sale, and an opportunity is offered to the mortgagor to redeem his property by tendering the sum actually due. 5 Md. Rep., 161, Gatchell vs. Presstman.

5th. If the Superior Court had no authority to act in this matter, this court will review its action and reserve the same. 9 Gill, 92, Webster vs. Cockey, 5 Md. Rep., 17, State vs. Mister. Ibid., 350, State vs. Mace.

Cornelius McLean for the appellee:

1st. It seems to be thought by the counsel for the appellant, that because the Act of 1826 speaks throughout of the county court, there was no equity jurisdiction conferred. But if the jurisdiction be of an equity nature, it must go according to its nature, to the law or equity side of the court. On this ground, therefore, the decision below ought to be affirmed.

2nd. But whether the jurisdiction given by that Act be common law or equitable, still it belongs to the Superior Court, under sec. 11, Art. 4, of the Constitution. In speaking of the Superior Court, this language is used: "The said court shall also have jurisdiction [**5]  as a court of equity within the limits of the said city, and in all other civil cases which have not been heretofore assigned to the court of Common Pleas." The jurisdiction of the court of Common Pleas certainly does not embrace cases like the present, and they must, therefore, be settled in the Superior Court. 14 Md. Rep., 69, Gayle & wife vs. Fattle.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*550]  LE GRAND, C. J., delivered the opinion of this court.
The only objection urged to the order of the Superior Court, from which this appeal is taken, is, that the Act of 1826, chapter 192, has been repealed by the adoption of the present Constitution of the State, it being supposed that inasmuch as that instrument separates the city from the county of Baltimore, and abolishes "Baltimore county court," there is no tribunal to execute it. Without assigning other reasons why this view is not tenable, we content ourselves by a reference 

 [*551]  to the case of Gayle & wife vs. Fattle, 14 Md. 69, and the cases in the matter of the sale of the property of Robert Howard, decided at this term, (Ante, [**6]  529,) as recognizing the continued existence of the Act. We therefore affirm the order of the Superior Court.
Order affirmed, with costs, and cause remanded for further proceedings. 

117 of 196 DOCUMENTS 

ELISHA J. HALL and WM. H. D. HALL vs. WM. E. MAYHEW.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 551; 1860 Md. LEXIS 37 

May 16, 1860, Decided 

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

The bill in this case, filed on the 8th of September 1856, by the appellants against the appellee, charges, that on the 9th of December 1851, the complainants noticed in the Baltimore Sun an advertisement for the sale of certain real estate in Baltimore county, called the "Ninevah Farm," described as containing "about 482 acres of land;" that they had no previous knowledge of the property, but on the afternoon of that day, made a hasty visit to it, with a view to purchase, and were on the property not longer than one or two hours, and had no opportunity of ascertaining its boundaries, or the number of acres; that the next day they attended the sale at the Exchange, when the auctioneer, at the hour named in the advertisement, read the same and announced, verbally, that the title was indisputable, and that the terms of payment would be one-third in cash, one-third in one year, and one-third in two years, the credit payments to bear interest from the day of sale; that complainants relying upon the truthfulness of this printed advertisement, and believing the property did contain about 482 acres, bid for and purchased the land at the [**2]  price of $ 8250.

The bill further charges that up to the time of making this purchase, the complainants had no acquaintance with, or knowledge of the owners, but immediately after the sale were introduced by the auctioneer to John R. Jones as one of the parties interested, who explained to them that the property belonged to Wm. E. Mayhew, and that he, Jones, had a lease of it for three years, and that it had been sold on their joint account; that on the same, or the next day, they called on Mayhew, and he told them the sale had been authorized by him, that he approved the sale and would execute the papers to consummate the purchase; that at the same time Mayhew stated to them that before he had anything to do with the property, he had caused the title papers to be fully examined by his counsel, and that his counsel had found every thing right; that complainants knew Mayhew from reputation, to be a man of honor and great business intelligence, and, therefore, greatly relied upon the representations made by him in regard to the property, and, for this reason, were not so particular as they otherwise would have been in making an investigation of the title and contents of the land;  [**3]  that on the 23rd of the same month of December, complainants, in accordance with their previous understanding with Mayhew and Jones, returned to Baltimore, for the purpose of making the first payment for the property, and obtaining the proper papers to be signed by Mayhew and Jones; that before the papers were executed and received by the complainants, and before they paid the cash payments, and gave their notes to Mayhew for the other payments, the lease from Mayhew to Jones, filed with the bill, (exhibit A,) was shown them, in which the property was described as containing 482 acres and 32 perches, more or less; that complainants, deceived as to the number of acres contained in the property, first by the advertisement, published in the Sun as aforesaid, by authority of Mayhew, secondly, by the verbal statement by him to them made as aforesaid, and lastly, by the description given in Mayhew's lease to Jones, proceeded to fulfil their part of the contract, paid the one-third of the purchase money in cash, gave their notes to Mayhew for the residue, and Mayhew signed and delivered to them the written contract of sale, (exhibit B,) dated the 23rd of December 1851, and Jones executed [**4]  and delivered to them the conveyance (exhibit C) of his leasehold interest in the property; that in this written contract of sale Mayhew contracted to convey to them, on payment of the notes given for the credit payments, the property leased by him to Jones, by the lease, (exhibit A,) by a deed in fee-simple, and clear of and discharged from the rent and of all claim of Mayhew therein, and of all persons claiming under him, and by this contract he, Mayhew, adopted the description given by him of the property in said lease, which described it as containing 482 acres and 32 perches, more or less.

The bill further charges that, at the time of the sale at the Exchange, and of the cash payment, and giving the notes to Mayhew, as above stated, and for a long time afterwards, complainants believed the property contained the quantity of land represented by Mayhew, and it was this belief that induced them to offer the price of $ 8250; that soon after the 23d of December 1851, they took possession of the farm, and have continued in possession ever since, and have paid all the purchase money, according to their contract, except $ 566.16; that during the last twelve months, they were, for [**5]  various reasons, induced to doubt whether the farm contained the quantity of land represented by Mayhew, as aforesaid, and therefore refused to pay him this balance of the purchase money, until the actual contents of the farm could be ascertained; that, early last spring, they employed Augustus Boulden, a competent and skilful surveyor, to ascertain the number of acres, and that he has, by actual survey, ascertained that the farm contains only 378 acres, as appears by his certificate, (Exhibit D;) and the complainants aver and charge that the farm contains 104 acres less than was represented by Mayhew at the time of their purchase, and they are advised they are entitled to a ratable deduction from the price agreed to be paid, and that after such abatement, it will be found they have already overpaid Mayhew $ 1213 of the principal, besides overpayments of interest, and that he is their debtor to that amount, instead of their owing him the $ 566.16, claimed by him; that, after ascertaining this great deficiency, they refused to pay Mayhew the balance due on their note for the purchase money, and stated to him the reasons why they so refused, and requested him to deliver up the note,  [**6]  and execute and deliver to them a deed for the land, according to his contract, which he refuses to do, and demands payment in full of this balance, and has instituted an action at law for its recovery, in the Circuit Court for Baltimore county, and is about to prosecute the same to final judgment.

The prayer of the bill is for an injunction to restrain Mayhew from further prosecuting his said action at law, that he may be compelled, without delay or further payment, to execute to the complainants a deed, in fee-simple, for the the land, and may be further required to make an abatement from the price agreed on for the farm, proportionate to the deficiency in the actual contents thereof from the number of acres represented to be contained therein at the time of the purchase, and that he may be compelled to refund and return to the complainants the amount they have overpaid him, and for general relief.

Exhibit A, the lease from Mayhew to Jones, dated the 5th of February 1850, and duly recorded among the land records of Baltimore county, describes the land thus: "All that tract of land situate in Baltimore county aforesaid, called 'Ninevah,' as described in the patent thereof [**7]  from the State of Maryland to Charles Warfield, bearing date the 14th day of December 1829, and recorded among the records in the land office of the Western Shore, of the State of Maryland, in Liber G.G.B., No. 1, folio 122, &c., (excepting therefrom all those parts of said tract which were sold and conveyed by the said Charles Warfield, in his life time, to any person or persons whatever,) the part of said tract hereby demised, being estimated to contain four hundred and eighty-two acres and thirty-two perches, be the same more or less, and being the same part of the said tract that by indenture, bearing date this 5th day of February 1850, and intended to be recorded among the land records of Baltimore county aforesaid, was conveyed by the said John R. Jones, of J., and Rebecca his wife, to William E. Mayhew, his heirs and assigns, forever." This deed from Jones and wife to Mayhew, which was duly recorded, and is filed as an exhibit with the defendant's answer, describes the land in the same words; and, also, as "being the same part of said tract that by indenture, bearing date this 5th day of February, instant, was conveyed by Jesse Bennett, Jesse L. Warfield and James Pearre, as [**8]  trustees, to the said John R. Jones, of J., his heirs and assigns."

The advertisement, filed as an exhibit with the bill, describes it: "That valuable farm, known as the Ninevah Farm, late the property of Charles Warfield, Esq.," situated, &c., "containing about 482 acres of land." The contract of the 23rd of December 1851, between Mayhew and the complainants, (exhibit B,) recites that Mayhew had heretofore demised to Jones, for the term of three years, "a certain parcel of land," lying in Baltimore county, at the yearly rent of $ 385, payable semi-annually, "as, by said lease, recorded," &c., (being the lease exhibit A,) appears; that Jones hath assigned the land to the complainants, who "have agreed to purchase the fee-simple from said Mayhew," &c., and then Mayhew contracts upon payment of the notes for the purchase money therein set out, that he "shall and will execute and deliver a deed in fee-simple, to" the said complainants, "their heirs and assigns, for the tract of land aforesaid, clear of and discharged from the rent aforesaid, and of all claim of said William E. Mayhew, therein, and of all persons claiming under him."

The injunction was granted as prayed, and [**9]  Mayhew then filed his answer, under oath, though not required by the bill so to answer, in which he states that Jones was, or professed to be, seized of the land mentioned in the proceedings, having acquired, or supposed he had acquired, the same by deed from Bennett and others to himself, dated the 5th of February 1850, and duly recorded; that respondent had advanced Jones the purchase money, or part of it, for this land, and Jones thus becoming indebted to him, and being also indebted to him on other accounts, the entire amount of such indebtedness being $ 6500, it was agreed between Jones and respondent, that respondent should have this land as security for repayment of this sum within three years thereafter, and in conformity with this agreement Jones, on the same day, conveyed the premises to respondent by deed, which is filed as an exhibit with the answer, and respondent executed the lease to Jones, referred to in the bill and filed as an exhibit therewith. He avers that it was the distinct agreement and understanding between Jones and himself, that on the punctual payment of the rent reserved by the lease, and of said sum of $ 6500, at the expiration of the term, respondent [**10]  was to release and reconvey the premises to Jones. He was assured the land would be a good security for the payment of this sum, and, therefore, whilst he admits he caused the records to be examined for the purpose of satisfying himself that the title of the patentee of the land had been conveyed to Jones, he avers he made no inquiry as to possession or outlines, and knows nothing of its title or condition in reference to location other than he has learned from the records, and he refers to said deed as showing that the land conveyed consisted only of a part of a tract which has been patented by the name of "Ninevah," and that said part was estimated to contain the quantity of 482 acres and 32 perches of land.

The answer further states that Jones afterwards, being unable to provide for the punctual payment of the rents reserved as aforesaid, or for some other cause becoming dissatisfied with said purchase, caused the advertisement of sale to be inserted in the Sun, and respondent has understood the land was sold thereunder to the complainants, as stated in the bill, but respondent avers he had nothing to do with the preparation of this notice of sale, nor with any explanations [**11]  or representations made at the time or place of sale. He does not recollect whether Jones communicated to him his purpose to advertise the land, and if he did, respondent is very confident he did no more than consent that Jones should offer the land for sale, and require, in the event of a sale being effected, the purchaser should be informed of his claim, and that the purchaser and respondent should arrange for its payment to their mutual satisfaction. And, therefore, after the sale had been effected, Jones introduced the complainants to respondent, and the nature and extent of respondent's claim was fully explained to them, as well by Jones as respondent. This respondent admits that he may have stated in the course of this interview, or of some subsequent interview, that he had caused an examination to be made by his counsel of the title of said land, and that it had been found to be satisfactory; but the complainants must have understood, as the fact was, that his counsel had limited himself to the examination of the record of conveyances simply, and he avers positively that they understood that respondent claimed to hold the land only as security for the sum due him from Jones.  [**12]  

The answer then further admits the execution of the agreement of the 23rd of December 1851, and avers that it was prepared by the counsel for the complainants; that the complainants entered into possession of the premises shortly after the date of this agreement, and it was not until after the 28th of November 1855, that they gave respondent any information of any deficiency in the quantity of land sold, and, in the mean time, Jones had removed from Baltimore, and possibly from the State, leaving no property, and respondent can have no recovery over in the event of a recovery by complainants against him. He does not admit there is any deficiency. But should any appear, he denies that he is to account for it, as it was understood, by all parties, that he held the land only as security for the debt due by Jones to him; that the purchase was effectively made of Jones, and respondent's undertaking was no more than to relinquish his interest in the land, on receipt of his claim. He further insists that the complainants have, by their laches, gross negligence and delay, lost any equity which they might at any time have claimed, if in truth they had any, against him. And lastly, he insists [**13]  that if the complainants are dissatisfied with their purchase, and can show a right to complain, they ought to be relieved by a rescission of the contract, and the land ought to be returned to respondent, on payment by him to them of the purchase money paid for the same.

A motion to dissolve the injunction was made and testimony taken under the Act of 1835, ch. 380, sec. 8, to be used at the hearing of this motion. A commission was also issued to take testimony to be used at the final hearing. Before this latter commission was returned, the case was argued on the motion to dissolve, and the court (KREBS, J.) delivered the following opinion accompanying the decree appealed from:

"The relief, which the complainants ask in their bill, is virtually an abatement, on account of deficiency in quantity, from the purchase money, for a tract of land, the reversion in which was to have been conveyed to them by the defendant. This court cannot grant this relief to them, unless they are entitled to it by the terms of the covenants on the part of the defendant, contained in the instrument of writing filed by them as exhibit B; for, whatever was the contract or reciprocal obligations growing [**14]  out of the sale and purchase of this property, as made at auction, at the Exchange, in the city of Baltimore, the particulars of which are stated in the bill, I am of opinion that they were altogether waived by the parties when they gave to the transaction the shape which it took when the assignment and agreement referred to in the proceedings were executed, and were in fact merged in that assignment and agreement. And though the complainants, as the assignees of Jones' leasehold estate, might have claimed a conveyance from the defendant of the fee-simple in the property, clear of rent, by virtue of his covenant in the lease to Jones, yet they have thought proper to substitute for their rights under that covenant, a separate and independent agreement for such conveyance, upon terms differing somewhat from those provided in the lease; and they rest their claim to the relief which they pray, upon the obligations created by that agreement. In it the defendant, Mayhew, covenants that if the said Halls pay the promissory notes therein specified, he will execute and deliver to them a deed in fee-simple, clear and discharged from the rent aforesaid, and of all claim of the said Mayhew therein,  [**15]  and of all persons claiming under him, of a parcel of land lying in Baltimore county, which, as appears by the lease referred to, for a particular description, is described as 'All that tract of land called 'Ninevah,' as described in the patent thereof to Charles Warfield, &c., (excepting therefrom, those parts of said tract which were sold and conveyed by said Warfield, to any person or persons whatsoever,) the part of said tract, hereby demised, being estimated to contain four hundred and eighty-two acres and thirty-two perches, be the same more or less.' The complainants allege, 'that by said contract, he, the said Mayhew, adopted the description given by him of said property, in the lease aforesaid, which lease, as just stated, described it as containing 482 acres and 32 perches, more or less,' and it is because the defendant stated the quantity in these terms, that they claim a deduction from the purchase money, for a deficiency in the actual number of acres, which deficiency they allege, amounts to 104 acres. Assuming this deficiency to exist, are they entitled to relief?

"It is not necessary to look beyond the decisions of our own courts for the true import and effect of [**16]  the terms, 'more or less,' 'or estimated to contain,' in contracts for the sale of lands. In Jones vs. Plater, 2 Gill, 128, the court adopts the law as stated in the words of Judge Story, in the case of Stebbins vs. Eddy, 4 Mason, 419: 'It seems to me that there is much good sense in holding that the words, 'more or less,' or other equivalent words, in contracts or conveyances of this sort, should be construed to qualify the representation of quantity in such a manner, that if made in good faith, neither party will be entitled to any relief on account of a deficiency or surplus.' 'Where the sale is fair, and the parties are equally innocent, and the quantity is sold by estimation and not by measurement, there is little, if any, hardship, and much convenience, in holding to the rule, caveat emptor. Ibid., 420. In Hurt vs. Stull, 3 Md. Ch. Dec., 26, the Chancellor says: 'If the representation of the quantity be mere matter of description, and not of the essence of the contract, as where there are qualifying words, as 'more or less,' or 'by estimation,' the vendee must be understood as assuming upon himself the risk of the quantity.' He also quotes the language of Judge Story, as above [**17]  cited, and says, 'that it must be regarded as establishing the law here.' This decision was affirmed on appeal in 9 Gill, 451, where the court says, 'these words must be considered as qualifying the representation of quantity, and neither party could claim relief on account of a deficiency or a surplus.' So in Smallwood vs. Hatton, 4 Md. Ch. Dec., 98, the Chancellor reiterates this statement of the law: 'though the land is described as containing one hundred acres, the words 'more or less,' must so far qualify the representation of quantity, as to preclude either party from any just claim to relief, on account of a deficiency or surplus.'

"In the case under consideration, as in those referred to, the land was sold for a gross sum, and described by metes and bounds, the description here being made certain and definite, by a report to the patent referred to in the lease. And further, in this contract, the representation of quantity is doubly qualified by the use both of the terms 'being estimated to contain' and 'be the same more or less.' In addition to this, a strong argument against any intention of the parties to define with precision the number of acres to be conveyed, and [**18]  which presents itself on the face of the agreement, is derived from the phraseology of a part of the description, in which it is stated to be the tract of land called 'Ninevah,' as described in the patent, &c., excepting therefrom, 'those parts which were sold by Warfield to any person or persons whatsoever.' A vendee, who takes a deed or covenant for the conveyance of lands, with a description so loose, vague and indefinite as this, coupled with the qualifying terms aforesaid, in regard to quantity, does not come into court with a strong plea for relief when he finds himself disappointed in the number of acres that he has acquired.

"But though the rule is so well established, that where the representation of quantity is thus qualified in good faith, no relief will be given on account of deficiency or surplus, yet it does not apply to the case of a willful or fraudulent misrepresentation of quantity. This bill does not charge any representation of that character, and if it did, the proceedings furnish no proof of fraudulent representation of quantity, and, in my opinion, show that, in point of fact, there was no representation whatever of quantity made by the defendant, except [**19]  the statement in the contract.

"Nor would this rule apply to 'cases in which the deficiency, from its magnitude, would raise the presumption of fraud, imposition or mistake, (3 Md. Ch. Dec., 28,) such as Judge Story refers to in the case above cited, where he says, 'that cases may occur of such extreme deficiency as to call for relief, but they must be such as would naturally raise the presumption of fraud, imposition or mistake in the very essence of the contract.'

"No rule has yet been suggested for determining what precise number of acres, less than the number stated with these qualifying terms, should be regarded as a deficiency of such magnitude as, per se, to be proof of mistake. In an anonymous case, 2 Freeman's Rep., 107, it is reported that a case was cited, where a man conveyed his land by the quantity of 100 acres, 'be it more or less,' and it was not above 60. Judge Story, in the case above cited, says: 'the latest cases generally concur with the doctrine laid down in this anonymous case,' thereby signifying that so large a deficiency as nearly one-half is not of sufficient magnitude to show mistake, fraud or imposition.' In the case of Hurt vs. Stull, above referred [**20]  to, the deficiency was about one-sixth, and relief was refused to the purchaser. In that of Smallwood vs. Hatton, the deficiency was very nearly one-fifth, and yet the vendee was allowed no abatement of purchase money. In this case, the alleged deficiency in the number of acres does not much exceed one-fifth. The opinion of Judge Story in the case above cited, from 4 Mason, has been regarded as of the highest authority upon these questions by our Maryland courts, and has been referred to by them in all the cases in which this subject has been considered, as clearly and accurately defining the law; and I find nowhere any statement of opinion approaching more nearly to a definite rule, than his language there expressed, viz., that 'the case must be one of such extreme deficiency as would naturally raise the presumption of fraud, imposition or mistake in the very essence of the contract.'

"Now the essence of the contract in this case, was a farm of a number of acres, 'more or less,' possession of which was actually delivered to them by the defendant, and which they occupied and used for the purposes for which they purchased it, for nearly five years, as appears from the statements [**21]  in the bill, without discovering that it did not contain, as they allege, the full number of acres that they supposed they had purchased. It cannot be urged by the complainants with any force, under these circumstances, that there was a mistake in the 'very essence of this contract.' Such a mistake would have been instantly discovered. Upon a full view, therefore, of the opinions expressed in the cases above cited, and considering the magnitude of the deficiency in the cases in which relief has been refused by our own and other courts, I cannot regard this court as at all justified in giving relief to these complainants, because, as they allege, there is a deficiency of one hundred and four acres in this parcel of land.

The only witness examined by the defendant has been objected to by the complainants on the ground of incompetency. I have not thought proper to inquire whether this objection should be sustained. This testimony is relied upon to show that the defendants should be regarded as selling, and the complainants as purchasing, only the equity of redemption of a mortgagor, it being insisted by the defendant that the transaction between himself and Jones, was nothing more [**22]  than a mortgage security, notwithstanding the form that had been given to it, and that the complainants knew its character when they made the purchase. I am of opinion that this position could not be sustained against the complainants, be cause there was no transaction, in the nature of a security for a loan, between them and the defendant, and because he has thought proper, by a separate and independent agreement under seal, to put himself in the position of the vendor of the reversion in fee in these lands, to them, as the assignees of Jones' term for years, and to covenant to convey the premises to them, upon the terms specified, and therefore cannot alter the character of the transaction by parol evidence. I think, however, that the fact that such had been the nature of the transaction, might have been shown, by competent testimony, to have been made known to the complainants before the purchase, for the purpose of rebutting evidence, if there was any such in the record, tending to show that the defendant had actual knowledge that there was a deficiency in the quantity of land. The only other testimony in the case, is that of the witness for the complainants, which, in my judgment,  [**23]  proves nothing in support of their claim for relief, according to the view that the court has taken, under the circumstances of the case, of their rights, founded upon a proper construction of the force and effect of this contract. Being of opinion, therefore, that this court cannot, upon final hearing, grant to the complainants the relief that they pray, I must pass a decree in conformity to the views above expressed."

The court then passed a decree dissolving the injunction, and dismissing the bill, from which the complainants appealed.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

A tract of land was purchased for a sum in gross. The title papers to which the purchaser was referred before completing his purchase, described the quantity as "being estimated to contain 482 acres and 32 perches, be the same more or less." It was found to contain but 378 acres. HELD: that the purchaser was not entitled to an abatement for this deficiency.

Where quantity does not enter into the essence of the contract, the purchaser, in the absence of fraud or misrepresentation, is not entitled to an abatement; and where land is sold as containing so many acres, more or less, quantity does not enter into the essence of the contract of sale. 

COUNSEL:
Coleman Yellott for the appellants:

The argument below was upon the motion to dissolve the injunction, and that was the question before the court for its decision. After this argument, and before the decision, a commission was issued to take testimony to be used at the final hearing, and this commission was still outstanding at the time of the passage of the decree appealed from. This decree states that the cause stood ready for hearing on the motion to dissolve the injunction, and as it appeared to the court that the complainants, upon their own showing in their bill, cannot entitle themselves to any relief at the [**24]  final hearing of the cause, the injunction was dissolved, and the bill dismissed. In this state of the case, and on an appeal from such a decree, the averments in the bill must be assumed to be true, and the first question is, does the bill itself present a case entitling the complainants to relief? It is submitted that it does. It avers a deficiency of 104 acres in a sale of 482 acres and 32 perches; that Mayhew deceived the complainants not only by the advertisement of sale, but by the description of the land given in his written contract of the 23rd of December 1851; and that the complainants had no opportunity of ascertaining the number of acres at the time of the execution of this contract. Under these circumstances it is immaterial whether Mayhew knew of the deficiency, as mistake alone, in the absence of actual fraud, will entitle the complainants to relief. 1 Story's Eq., sec. 193. 17 Ves., 395, Hill vs. Buckley. 1 Md. Rep., 147, Marbury vs. Stonestreet. Atkinson on Titles, 110, 116, in 20 Law Lib. 1 Munford, 330, Hull vs. Cunningham. 2 H. & G., 358, Anderson vs. Foulke. 2 Gill, 125, Jones vs. Plater. 9 Gill, 446, Stull vs. Hurt. The description in the contract of sale, and [**25]  in the lease, descending as it does to perches, is a representation of quantity amounting to a warranty, and quantity entered into the essence of the contract. It does not say simply 482 acres more or less, but 482 acres and thirty two perches, be the same more or less. In such a case, can it be said that the words "more or less" extend to a deficiency of nearly one-fourth in a sale of 482 acres of land? In none of the Maryland cases, on this subject, has the deficiency been in any thing like the proportion it is in this case, and it is believed no well considered case can be found in which such a deficiency would not of itself, without actual fraud, entitle the purchaser to relief by abatement from the purchase money.

The relief to which the complainants are entitled is that prayed for in their bill, and not a rescission of the contract, which would not be granted unless prayed for by the complainants themselves. 17 Ves., 401, 403, Hill vs. Buckley. 9 Cranch, 494, Pratt, et al., vs. Law, et al. 1 Munford, 338, and note. In the decision of this case, Mayhew must be regarded as the vendor, and it is immaterial that Jones had a leasehold interest, or that there was an agreement [**26]  between Mayhew and Jones, to the effect that Mayhew was a mere mortgagee. The bill avers that Mayhew was the owner and that averment must be taken as true, and again by his contract of the 23rd of December 1851, he covenants to execute and deliver a deed, in fee-simple, for this land, and he is therefore estopped from denying that he was the real vendor. 1 Greenlf. on Ev., sec. 275.

Under the circumstances of this case, the complainants were not guilty of laches, or of such delay in asserting their claim as will debar them from asking the relief prayed. 1 Md. Rep., 437, 438, Ijams vs. Hoffman. 1 Md. Ch. Dec., 501, Taymon vs. Mitchell.

Thos. S. Alexander for the appellee:

It is not pretended that the alleged deficiency was known to Mayhew, and that he falsely and fraudulently misrepresented the quantity of land proposed to be sold. All the representations made by him, if any were in fact made, touching quantity, were honestly made. The representation made was only to the effect that he, Mayhew, had caused the records to be searched and that the title to the land had thus been ascertained to be satisfactory. In truth he did examine the record. In truth the title is satisfactory.  [**27]  And if it is to be assumed that any representation was made in regard to quantity, the records show that the quantity was correctly stated. But a more satisfactory answer to the equity presented is, that the records are equally open to vendee as to vendor, and general statements made in regard to what is or may be discovered from inspection of the records, if honestly made, do not constitute ground for vacating or varying an agreement between the parties. But the equity of the complainants must be found, if at all, in the representation embodied in the agreement. This agreement refers to the lease from Mayhew to Jones, and in that the land demised is described as part of Ninevah, as described in the patent thereof, being estimated to contain 482 acres and 32 perches, be the same more or less. It is insisted that there is no warranty to be implied from this description, as the purchase was of the entire land for a gross sum. In Jones vs. Plater, 2 Gill, 125, the sale was of part of a tract supposed to contain 998 1/2 acres, more or less, at $ 9 per acre, and it was adjudged the vendor was not entitled to an allowance for deficiency. In Stull vs. Hurt, 9 Gill, 447, there was a sale of [**28]  a farm or tract of land containing 173 acres, more or less, for the gross sum of $ 2300, and in this, as in the former case, it is declared, that, in the absence of any fraud, these words, "more or less," must be considered as qualifying the representation of quantity, and neither party can claim relief for deficiency or surplus. We have in this case the words, "estimated to contain," and "more or less;" these certainly qualify the representation of quantity. The case of Marbury vs. Stonestreet, 1 Md. Rep., 147, relied on by the appellants, so far from reversing, sustains the previous decisions on this point. It is submitted, therefore, that the bill does not make out a case for relief. But even if they had ground for relief, the appellants have been guilty of laches, and by their delay have forfeited any equity they might originally have had.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*566]  LE GRAND, C. J., delivered the opinion of this court:
The bill, in this case, was filed for the two-fold purpose of having an abatement from the amount of the purchase money, agreed to be paid by the appellants for a tract of land, and the enjoining [**29]  of the further prosecution of a suit at law, brought against them by the appellee for a part of said purchase money due and payable, agreeably to the terms of the 

 [*567]  purchase. The case was decided on a motion to dissolve an injunction which had been previously granted on the filing of the bill, and on affidavits taken under the Act of 1835, chapter 380.
The bill, in substance, charges, that the appellants became the purchasers of the land because of the statements contained in an advertisement, published in a newspaper called the "Baltimore Sun," and those made to them by the appellee, the ground of complaint being, that the land was believed by the appellants to contain 482 acres, when, by a survey by themselves caused to be made, it was found to contain but 378. All the purchase money, with the exception of $ 566.16, had been paid before the filing of the bill. To recover this residue, the action at law had been instituted by the appellee.
The history of the case, as disclosed by the record, is, that the property was that of one Jones, who being indebted to Mayhew, the appellee, and being unable to discharge his indebtedness, and desirous of obtaining a loan from the latter,  [**30]  agreed with him to convey the property to him and to take a lease for a term of years at a certain rent. This transaction was viewed, by the parties to it, as one in the nature of a mortgage to secure the payment of the money due from Jones to the appellee. The sale was at the instance of Jones, but with the approbation of the appellee. Before the purchase was consummated these facts were made known to the appellant.
The appellee, in the agreement of sale executed by him, does not warrant on guaranty any number of acres. He refers to the source of his own title, to wit, the deed from Jones, and his lease to Jones. The deed from Jones to the appellee describes the land as: "All that tract *** called Ninevah, as described in the patent thereof, *** (excepting therefrom all those parts of said tract which were sold and conveyed by the said Charles Warfield, in his lifetime, to any person whatever,) the part of said tract hereby conveyed being estimated to contain 482 acres, 32 perches, be the same more or less." The lease from the appellees describes the 

 [*568]  land as "being estimated to contain 482 acres and 32 perches, be the same more or less."
There is [**31]  no fraud, in fact, charged in the bill. Reliance being placed entirely upon the facts already stated, and the averment that the appellee had informed the appellants, that before he would have anything to do with the property, he had caused the records to be searched and found them to be satisfactory. But the bill admits, that before the payment of any part of the purchase money, or the giving of the notes on which the suit at law has been brought, the lease from the appellee to Jones had been shown to them.
The only question then before this court, on this appeal, is, are the appellants entitled to the relief asked upon the facts stated by themselves? We concur in opinion with the Circuit court, that they are not.
The property was not sold by the acre, but in gross. In Maryland the law is well settled, that where quantity does not enter into the essence of the contract, in the absence of fraud or misrepresentation, the purchaser is not entitled to an abatement.
Here the complainants were referred to the title papers, which contained no warranty of any precise number of acres, but which described the quantity by estimation, and by the words, "more or  [**32]   less."
In the case of Jones vs. Plater, 2 Gill 125, and in the case of Stull vs. Hurt & others, 9 Gill 446, it was held, in the absence of fraud or misrepresentation, that where land was sold as containing so many acres, "more or less," quantity did not enter into the essence of the contract of sale. The same doctrine was held in Marbury vs. Stonestreet, 1 Md. 147. That case is distinguished from this by the fact, that there, the property was described as "containing by survey 669 acres," there being "no qualifying expression, such as more or less, by estimation, &c."
Concurring with the court below, that the complainants cannot succeed upon the case made in their bill, we approve its decree dissolving the injunction and dismissing the bill.
Decree affirmed. 

118 of 196 DOCUMENTS 

OSCEOLA TRIBE, No. 11, of the IMPROVED ORDER OF RED MEN, vs. MARY ROST, adm'x of GEORGE ROST.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 295; 1860 Md. LEXIS 28 

May 9, 1860, Decided 

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

Assumpsit, brought on the 10th of December 1855, by George Rost, the appellee's intestate, against the appellant, a beneficial society, incorporated under the Act of 1852, ch. 231, to recover benefits alleged to be due him by the society of which he was a member.

The plaintiff received a verdict and judgment for $ 91, and the defendant appealed. In the course of the trial the defendant excepted to the refusal of the court (MARSHALL, J.) to grant its second prayer, which is stated in the opinion of this court. As the decision is based entirely upon a defect in this second prayer, the facts of the case, and the argument of counsel, need not be stated.  

DISPOSITION:
Judgments affirmed.  

HEADNOTES:

A prayer, leaving to the jury to find whether the proceedings in regard to charges against the plaintiff were "had in accordance with the constitution and by-laws" of the society of which he was a member, is erroneous, because it submits to the jury the proper construction of written instruments, which it is the province of the court, and not the jury, to decide.  

COUNSEL:
Chas. H. Pitts and Jos. C. Boyd, for the appellant.

Orville Horwitz, for the appellee.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*295]  ECCLESTON, J., delivered the opinion of this court.
In this action of assumpsit, in the Court of Common Pleas for Baltimore city, the plaintiff recovered a verdict and judgment for $ 91, against the defendant, the present appellant.
At the trial below, the defendant [**2]  submitted two prayers; the first of which was granted, and the second refused. Unless there was error in this refusal, there is no ground for a reversal of the judgment on this appeal.
The first prayer asked the court to instruct the jury that if 

 [*296]  they should find, from the evidence, that George Rost, the plaintiff's intestate, was before and at the time of his initiation as a member of the Tribe, the defendant, in a bad state of health, and that the said Rost knew that he was in such state of health, and concealed said fact of his bad health from the defendant, then the plaintiff was not entitled to recover in this action, provided the jury should find, from the evidence, that said Rost's inability to attend to business during the time for which benefits were claimed in this suit, was the result of such disease upon him at the time of his admission as a member.
The second prayer is: "If the jury find the facts stated in the defendant's 1st prayer, which is made a part of this, and shall further find that charges were made against said Rost, as stated in the record of said defendant read in evidence to the jury, and that a committee was appointed to investigate [**3]  said charges, and that proceedings were thereupon had, in accordance with the constitution and by-laws of said defendant, and that said Rost was found guilty of said charges, and the said Rost was expelled from said defendant, and said Rost had notice of such charges and proceedings, and of his expulsion, and shall further find that the constitution and by-laws of said society provide for, and authorized said Rost to appeal from said decision to the Great Council, and that Rost did not appeal, then the plaintiff is not entitled to recover in this action."
By this second prayer, one of the questions submitted for the decision of the jury is, whether the proceedings in regard to the charges against Rost, were had in accordance with the constitution and by-laws of the defendant? This necessarily involves the proper construction of written instruments, which, according to long and well-established principles, it was the province of the court, and not of the jury, to decide. Whether any, and if any, what proceedings took place, were proper inquiries for the jury, but whether they were in accordance with the constitution and by-laws of the society or tribe, was a question of law for [**4]  the court, and not one of fact for the jury. Emery & Gault vs. Owings, 6 Gill 191. Clarke's adm'r vs. Marriott's adm'r, 9 Gill 333, 337.

 [*297]  The prayer being considered defective, for the reason stated, it was properly refused, even if not erroneous in any other respect. 4 Md. 513, 514. 5 Md. Rep., 448. 6 Md. Rep., 97.
Judgments affirmed. 

119 of 196 DOCUMENTS 

JAMES WHITING, use of the SUN MUTUAL INSURANCE COMPANY vs. THE INDEPENDENT MUTUAL INSURANCE COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 297; 1860 Md. LEXIS 29 

May 9, 1860, Decided 

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

In this case an action of assumpsit was brought at May term 1855, of the court below, by the appellant, Whiting, against the appellee, on a policy of insurance, made by the defendant, on the 16th of March 1854, to the amount of $ 7400, on the barque "A. A. Drebert," valued in the policy at $ 22,000. Plea non assumpsit, with agreement to waive all objections to the form of action and errors in pleading, and with leave to either party to give in evidence any matter which would be admissible under any form of action or issue. The record also shows that some time prior to the trial the case was entered for the use of the Sun Mutual Insurance Company.

Exception. At the trial an agreement of facts was submitted, from which it appears that Whiting, the owner of the vessel, obtained three policies of insurance upon her in each of which she was valued at $ 22,000, viz., one from the Sun Mutual Insurance Company, dated the 15th of March 1854, to the amount of $ 7300; one from the Independent Mutual Insurance Company, dated the 16th of March 1854, to the amount of $ 7400, and one from the Commercial Insurance Company, dated the 17th of [**2]  March 1854, to the amount of $ 7300. Each of these policies were for the same period and covered the same risks, and were produced and read to the jury, and each of them contained the proviso or clause set out in the opinion of this court, similar to that known as the "American clause." The vessel sailed upon the voyage indicated in the policies and sustained injury from the perils insured against, to the amount of $ 2189.04, after deducting new for old. After the occurrence of this loss, Whiting instituted three suits (of which this is one) against each of said companies. and, on the 4th of December 1855, recovered judgment against the Sun Mutual Insurance Company for the whole amount of the above loss, with costs, and this judgment was satisfied and paid in full by the Sun Mutual Insurance Company; during the trial of that case no question of the proportionate or pro rata liability of said company was raised by the Sun Mutual Insurance Company, or its attorney, and, on satisfaction of said judgment by the Sun Mutual Insurance Company, Whiting paid to the Independent Mutual Insurance Company the premium which was in the consideration for the insurance made by that company. The registry [**3]  and American ownership of the vessel were also admitted, and it was agreed that any or all of the above facts may be offered in evidence under the present pleadings in the case in the same manner as if the matter had been specially pleaded by pleas puis darrein continuance or otherwise, and also that they may be given in evidence under this agreement, in the case of The Sun Mutual Insurance Company vs. The Independent Mutual Insurance Company, now pending in the Superior Court. The defendant then offered two prayers, in substance as follows.

1st. If the jury find, from the evidence, that prior to the date of the policy sued on, Whiting had made another insurance upon his vessel, for the same voyage, in the Sun Mutual Insurance Company, and that the injury for the indemnity of which this action was brought, was occasioned by perils insured against in each of these policies, and that the whole amount of the injury did not exceed the sum for which the vessel was insured in the Sun Mutual Insurance Company, and that he sued for and has recovered full indemnity for such injury in an action against the Sun Mutual Insurance Company, then the jury must, in this case, find a verdict for [**4]  the defendant.

2nd. (Alternative prayer.) If the jury find, from the evidence, that Whiting was insured on his vessel on the same voyage in each of the three companies above mentioned, and that the loss was from perils insured against in each of these companies, then the plaintiff in this action is only entitled to recover from this defendant such proportion of said loss as the sum insured by this defendant bears to the amount at which the vessel is valued in the policy on which this suit is brought.

The plaintiff then asked the court to instruct the jury, that upon the facts admitted in this cause, the Sun Mutual Insurance Company were to the plaintiff responsible for only 7300/22000 of the loss mentioned in the statement of facts, and that any payment beyond the proportion for which the said company was so liable to the plaintiff, does not exonerate the defendant in this cause from any loss for which the defendant was liable, provided the jury shall find that this suit is now prosecuted for the benefit of the Sun Mutual Insurance Company.

Whilst these prayers were being discussed, and before the court had given any decision thereon, the plaintiff's counsel made to [**5]  the defendant's counsel the offer set out in the opinion of Judge Eccleston. The court (LEE, J.) then rejected the plaintiff's prayer, and without passing on those of the defendant, instructed the jury that upon the facts stated in the admissions of facts, their verdict must be for the defendant. To which ruling of the court, rejecting the plaintiff's prayer, and instruction to the jury, the plaintiff excepted, and the verdict and judgment being in favor of the defendant, the plaintiff appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

Three policies, on a vessel, the first for $ 7300, the second for $ 7400, and the third for $ 7300, were effected on three successive days, in three separate insurance companies. Each policy contained the American clause, and covered the same period and the same risks, and in each the vessel was valued at $ 22,000. A loss of $ 2189.04 occurred, and the assured brought three suits therefor, one against each of the companies. In that against the first company he recovered a judgment for the whole amount of the loss, which was paid by that company, and the judgment satisfied. The suit against the second company was then entered for the use of the first company and was prosecuted for its benefit to recover the proportion of the loss for which the second company was answerable on its policy. HELD:

1st. That the liability of the second company on its policy was not, in any manner, affected by the American clause, and the assured had a clear right to recover from it that proportion of the loss which the amount underwritten in its policy bore to the whole amount at risk.

2nd. As soon as the loss occurred, the liability of the second company to pay its just proportion thereof was fixed, and became a debt due the assured, which, like any other chose in action, might be sued for and recovered, or assigned.

3rd. The several underwriters were strangers to each other; there was no privity between them, and each was liable on its separate contract for its just proportion of the loss; they were not co-sureties and neither was bound to pay the whole, with the right of calling on the others for contribution.

4th. The payment of the whole amount by the first company did not discharge the second company from its liability to the assured, for its proportion of the loss, unless such payment was made and received with the intention and for the purpose of satisfying and discharging the debt due by the second company.

5th. The payment by the first company, not having been made on behalf of the second company, or for the purpose of satisfying and discharging its debt, the suit against the latter was properly entered for the use of the first company which is equitably entitled to be protected in its prosecution.

6th. The payment made to the assured, by the first company, does not enure to the benefit of the second company, which is a stranger to the transaction, and is no bar to a recovery in the suit against the second company.

7th. The judgment against the first company, for the whole amount, does not affect the rights, or liabilities of the second company in the suit against it; the second company was no party to that judgment; it was res inter alios, and neither binds nor discharges the second company; inter partes the judgment is an estoppel, but it cannot operate on strangers.

On a marine policy of insurance, the liability of the underwriter for loss, whether total or partial, is to pay that proportion which the amount underwritten bears to the whole amount at risk.

The proviso in marine policies, generally called "The American clause," is to be construed by its terms, in the same manner as any other written instrument, and so construed, it applies only to cases of double insurance.

The purpose for which the clause was introduced, although it may afford some aid in arriving at its meaning, cannot control the construction of its language.

Where the assured, after loss, assigns his right to recover that loss, such assignment, like that of any other chose in action, gives the assignee an equitable interest and a right to recover, in the name of the assignor, subject to set-off and all other equities.

Where a stranger pays the debt of another, without his consent or knowledge, such payment does not necessarily discharge the debtor and cannot be taken advantage by him unless he can show it was intended by the payer and receiver to operate a discharge.

When it is said a marine or fire insurance is a contract of indemnity, the meaning is, that in order to support it the assured must have some interest in the thing insured, which is at risk and liable to be injured, and that no action can be maintained on the policy, unless there has been some loss incurred.  

COUNSEL:
Vivian Brent and Levin Gale, for the appellant, argued:

1st. That each of the policies was upon separate and distinct interests in the vessel. That consequently there was no double or over insurance to which the American clause could apply, and that, there being no double or over insurance, the company now sued, has nothing to do with what was paid by, or recovered from, the other companies, and cannot defend itself on account of any transactions with those companies. 3 Kent, 347. 2 Parson's Maritime Law, 97, 100. 2 Phillips on Ins., secs. 1176, 1261. Angell on Fire & Life Ins., secs. 249, 271. 16 Wend., 386, AEtna Fire Ins. Co. vs. Tyler.  [**6]  14 Wend., 399, American Ins. Co. vs. Griswold. 2 Barn. & Cress., 255, Clark vs. Blything. 2 Marshall on Ins., 691, Mason vs. Sanisbury. 4 Bing., N. C., 272, Yates vs. Whyte, et al. 80 Eng. C. L. Rep., 365, Dalby vs. Life Ins. Co. 4 Mass, 336, Stetson vs. Mass. Fire Ins. Co. 15 Moss, 344, Coolidge vs. Gloucester Marine Ins. Co. 2 B. Monroe, 50, Franklin Ins. Co. vs. Drake.

2nd. That the payment of the Sun Mutual Insurance Company did not operate to extinguish the claims against the other companies, especially as between the plaintiff and that company, since the settlement is treated by both of them as an equitable assignment, and this suit is now actually prosecuted for the benefit of the Sun Mutual Insurance Company. 5 H. & J., 423, Merryman vs. The State. 14 Wend., 399, American Ins. Co. vs. Griswold. 3 Metcalf, 69, Wilson vs. Hill. 1 Wheat., 233, Welch vs. Mandeville. 2 G. & J., 344, Williamson vs. Allen.

A. S. Ridgely, for the appellee:

1st. Every insurance to which the law gives effect is, in its nature, a contract for indemnity from loss, as distinguished from a contract by way of gaming or wagering. It is in its nature, a guaranty of the insured against loss or [**7]  injury to the subject of the insurance, by the intervention of some peril covered by the policy. Its intention is not to put the party insured in as good condition as he would in fact have been had no loss happened. It only means that he shall be repaid the expenses incurred, and so much of the insured subject as is lost. 1 Phillips on Ins., secs. 1, 2, 124. 9 East, 81, 82, Godsall vs. Boldero. By the proof in this cause, what were the expenses incurred, and how much of the insured subject was lost? The only proof is in the statement of facts, which admits the vessel was injured to the amount of $ 2189.04, and the only inquiry now is, has that sum been paid the assured? by whom, and under what circumstances? and the effect of that payment upon the rights of the plaintiff to recover in this action? The statement of facts shows that three suits were brought, one against each of the insuring companies for this amount. The case against the Sun Mutual Insuranee Company was prosecuted, and judgment recovered for the whole of this amount, and the plaintiff was of this judgment satisfied and paid in full by that company. In other words, the assured's claim for full indemnity was prosecuted [**8]  to judgment against that company, and, by payment of that judgment, was satisfied in full. Assuming, therefore, that a right of action existed originally against all three of these companies, the right was arrested the instant Whiting received full indemnity for his loss, no matter from what source that indemnity was derived. 2 Smith's Lead. Cases, (5 Amer. Ed.,) 309. 2 Barn. & Adol., 193, Irving vs. Richardson. It is submitted, therefore, that upon the facts admitted in this case, the plaintiff was not entitled to recover. The indemnification of the insured, in respect to which his action upon the insurance contract is alone maintainable, was obviated by the payment made by the Sun Mutual Insurance Company. The plaintiff's demand is for indemnity. In the language of Lord Mansfield, 2 Burr., 1210, "A party cannot receive two satisfactions for the same loss; whatever undoes the damnification, in whole or in part, must operate on the indemnity, in the same degree." "It is a contradiction in terms to bring an action for indemnity, when, upon the whole event, no damage has been sustained." This principle is affirmed by Lord Ellenborough, in Godsall vs. Boldero, 9 East, 82, and, though [**9]  subsequently overruled as applying to insurances upon lives, it has, as respects marine and fire insurances, by both the courts in England and in this country, been re-enunciated and endorsed to the fullest extent. 2 Smith's Lead. Cases, (5 Am. Ed.,) 296, 309. 12 East, 493, Tunno vs. Edwards. 28 Eng. Law & Eq. Rep., 312, Dalby vs. India & London Life Ins. Co. 2 Barn. & Adol., 193, Irving vs. Richardson. 6 Cowen, 635, Lucas vs. Jefferson Ins. Co. 11 Metcalf, 195, Brinley vs. National Ins. Co. Not only has the plaintiff received full indemnity for his loss, but the judgment against the Sun Mutual Insurance Company was treated by him as full satisfaction of that loss, as the admitted facts clearly show. Would he have paid the appellee the amount of the outstanding premium note due for his insurance, had he considered he still had a claim against it unsettled? It being shown, therefore, that the sum paid by the Sun Mutual Insurance Company was received by the plaintiff in full satisfaction of all the insurances, it constitutes an available defence in the present action. The case of Lucas vs. The Jefferson Ins. Co., 6 Cowen, 635, was an insurance against fire, and, ordinarily, there is [**10]  a marked distinction between marine and fire insurances, in regard to the mode of adjusting losses. In the former, unless otherwise provided in the policies, in cases of partial loss, the insurer is liable only for such proportion thereof as the amount insured by him bears to the whole amount at risk. In the latter, he is liable to make good all the actual damage sustained, if within the amount insured, whether the loss be partial or total, and this without regard to the amount of the risk taken by the assurer himself, and if there are other underwriters he has a remedy against them for contribution. Ellis on Fire & Marine Ins. 136. Angell on Fire & Marine Ins., sec. 248. Parson's Mercantile Law, 537. Sometimes, however, a clause is inserted in fire policies, the operation of which is to limit the obligation of the underwriter to a pro rata liability. 3 Phillips on Ins., sec. 1265. Such a clause was contained in the policy of the Jefferson Insurance Co., in the above case, establishing an analogy between that case and the present, and though the ruling of the court was against the defendant, it was because the facts in that case differed from those in this. There was no proof showing [**11]  that Lucas had been fully indemnified, while it is admitted in this case that Whiting was. There the plaintiff's proof showed the loss to be $ 20,000. The Chatham and AEtna companies settled without suit, being allowed a deduction of one-sixth for prompt payment, and, the court say, the presumption was that the policies were alike as regards the pro rata clause, and that they only paid what they were bound to pay, not contemplating any action for contribution against the other company. Lucas claimed $ 20,000, and they paid only $ 9583.04. Nor was it any where pretended that the payment of the Chatham and AEtna companies was received in full satisfaction of the plaintiff's loss. Had it been so received, the ruling of the court would have been in the defendant's favor, for, on page 641, they say, "the plaintiff claims of the defendants the proportion they were bound to pay under their policy. They contend it has been paid by other companies. But, to make this defence available, it must be shown that the companies paid, in fact, a sum of money which was received in full satisfaction of all the insurances." If these positions be sound, as between Whiting and the defendant, there can be [**12]  no recovery in this action.

2nd. The next inquiry is, does the entry of the case to the use of the Sun Mutual Insurance Company, place the defendant in any worse position? We contend that it does not. As much of the strength of this position depends upon the intention of the parties, we must recur to the proviso, or Ame rican clause, as it is called, contained in each of these policies, and examine the conduct of both the legal and equitable plaintiff in the suit in which the latter was defendant. It is not proposed to discuss the origin or object of this clause, nor to examine what interpretation usage has put upon it in other cases and elsewhere. This matter has been elaborately considered in the case of the American Ins. Co. vs. Griswold, 14 Wend., 399. The language of the clause is confessedly ambiguous. Interpreted by usage, uncontradicted by a manifest intention of the contracting parties, it may mean one thing; interpreted by that intention, it may mean another. But the maxims for the exposition of contracts are simple and consistent, and well calculated to effect their sole object, viz: to do justice between the parties by enforcing a performance of their agreement, according [**13]  to the sense in which they mutually understood it at the time it was made. That the parties in this case contracted with the mutual intention that the Sun Company was to be primarily and exclusively, liable to the extent of their subscription, in the event of any loss, seems to be proved by the subsequent conduct of both, which shows that they admitted the clause, intending thereby to provide that the Sun Company should be first and only liable to the extent of $ 7300 in the event of loss to that amount, and that the subsequent insurances were made by Whiting, with the expectation that, in the event of the loss exceeding that amount, the other companies should be successively liable to the extent of their separate undertakings. The reference to the return of premiums was to be effectual only in the event of over-insurance. But as there was is in this case no overinsurance, but aliment sufficient to feed all the policies, there was no case presented for a return of premium. The risk attached to all, and had the loss been $ 22000, they would all have had to pay. Had it been $ 14000, the first and second companies only. They confused the principle governing marine with that which governs [**14]  fire insurances, save only the right of the first company to sue the subsequent insurers for contribution, which they considered expressly provided against in this clause. That this was the plaintiff's understanding, is evinced by his prosecuting the suit to judgment; otherwise his conduct was fraudulent, which cannot be presumed. The defendant so understood it, or it would have raised the question at the trial. If usage has put a different interpretation on the clause, knowledge of the usage (either directly or by proving its universality) must be brought home to the parties, to make it effectual in interpreting their contract. Usage is admissible in the interpretation of contracts, because it interprets the otherwise indeterminate intention of the parties. 2 Sumner, 567, Schooner Reeside. But if these intentions are determined by the express words of the contract, or by the conduct of the parties to the contract, or other evidence uncontradicted, the object of its admission fails; it no longer interprets the intention of the parties. 2 Parsons on Cont., 50, 51. Smith on Cont., 34, note, and cases referred to. 2 Gill, 78, Benson vs. Boteler. 2 Md. Rep., 239, Merchants Mutual Ins.  [**15]  Co. vs. Wilson. 13 Pet., 89, Bradley vs. Steam Packet Co.

That such was their intention--their actual contract--looking at the verdict and judgment in the case against the Sun Company, as admitted in the statement of facts, must be presumed by the court in this case. Every thing that they could object will be presumed to have been made in the trial against them, and overruled. The court will presume that the particular thing required to sustain the judgment was proved at the trial. 8 Gill, 75, Merrick vs. Bank of Metropolis. If the intention of the parties were, as we have contended, there can be no recovery in this action. If, however, the court think the contract cannot be thus interpreted, yet, bearing in mind the conduct of the parties, as already alluded to, we now contend that at no time, from the beginning of the suit of Whiting vs. Sun Co., did either otherwise than believe that that company was answerable for the whole amount of the loss, and that the payment of the judgment was to release that company from a liability incurred, through mistake of law it may be, but not with an intention to acquire a beneficial interest in this suit, so as to entitle them to any quasi [**16]  equitable consideration of the court. The entry of the use was an afterthought. The payment of the judgment satisfied Whiting. By it his damnification is repaired. If the loss has already been recovered and paid, the claim for a ratable proportion against this defendant is necessarily extinguished. That the plaintiff thought so, is manifest from his paying the amount of the premium due this defendant. The judgment in the case of the Sun Company was obligatory on them. They paid the whole amount to satisfy the judgment--to avoid execution--they had no alternative. Not objecting to the amount claimed against them, not raising at the trial the question of pro rata liability, amounts to a virtual confession of their liability for the whole amount. That they intended thus to make themselves liable for the whole of their subscription in the first instance, and then seek indemnity by way of contribution, or by having this entry to their use made, it is absurd to suppose. If, under their contract, they were liable for only 7300/22000 of the loss, their permitting the judgment to go against them for the whole amount, was done either voluntarily or through ignorance. If done voluntarily, they [**17]  must stand the loss--volenti non fit injuria. It certainly gives them no claim against this defendant. Every claim arises out of a contract, express or implied. No one can be made a debtor against his will. 2 Comyn on Cont., 151. 5 H. & J., 426, Merryman vs. State. 13 Pet., 412, Heirs of Emerson vs. Hall. 1 G. & J., 497, Mayor & C. C. of Balto. vs. Hughes. 5 Gill, 247, Morris vs. Mayor & C. C. of Balto. 1 Parsons on Cont., 392. 4 Johns., 244, Hall vs. Shultz. If through ignorance they are in no better position. Ignorantia legis neminem excusat, applies equally to civil rights and criminal offences. 2 Parsons on Cont., 556. 6 Clark & Finnelly, 968, Stewart vs. Stewart. 4 Gill, 431, Mayor & C. C. of Balto. vs. Lefferman. 5 Gill, 247. If a party pay money through mistake of law, he cannot recover it back. 13 Pet., 269, Bend vs. Hoyt. 6 Barn. & Cress., 671, Milnes vs. Duncan. 5 Gill, 242, Gordon's ex'crs vs. Mayor & C. C. of Balto. 4 Gill, 431. If it was the fault of his attorneys, his remedy is against them; but as between client and third parties, whatever is done by the attorney in the progress of the cause, is done by the client, and is binding upon him to whom the attorney is answerable [**18]  for the faithful dis charge of his duty. 2 Md. Ch. Dec., 425, Thornburg vs. Macauley. 3 Md. Ch. Dec., 392, Kents vs. Ricards. 7 H. & J., 278, Henck vs. Todhumter The entry to the use makes no difference. 3 G. & J., 75, State vs. Dorsey. 3 H. & J., 437, Hollins vs. Barney. The idea of having this suit entered to the use of the Sun Company formed no part of the consideration of the judgment against them. The payment was made to discharge the liability of that company, upon the judgment which was obligatory of such payment, and that company neither did nor could intend thereby to acquire any beneficial interest in this suit. 2 G. & J., 356, Williamson vs. Allen, et al.

3rd. But the judgment against the Sun Company for the whole amount of this loss was solemnly pronounced and recorded by a court of competent jurisdiction. To this judgment no objection appears to have been made, and from it no appeal was taken. On the contrary it was acquiesced in by that company and has been paid to the plaintiff, and whether right or wrong, it cannot be inquired into in this collateral manner. It was an adjudication by a court of competent jurisdiction, and conclusively settled the liability of that [**19]  company, upon its policy, for the whole amount of this loss. 1 Gill, 214, Bowie vs. Jones. 9 Gill, 241, Powles vs. Dilley, 3 Md. Rep., 60, Ramoul vs. Griffie. 14 How., 586, Huff vs. Hutchinson.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*309]  BARTOL, J., delivered the opinion of this court.
The policy on which this suit was brought was underwritten by the appellee, on the 16th of March 1854, and a partial loss having occurred from the perils insured against, the question presented for our decision is, whether the appellee is liable in this action for any portion of the loss?
On a marine policy, the liability of the underwriter for loss, whether total or partial, is to pay that proportion which the amount underwritten bears to the whole amount at risk. No authority need be cited in support of this rule; it is universally conceded to be the law governing such contracts, unless there be in the policy some stipulation to the contrary. In the case before us, which is a policy on a ship valued at $ 22,000, the amount insured $ 7400, and the loss incurred, $ 2189.04, the liability of the appellee, unless otherwise provided in the policy,  [**20]  would be 7400/22000 of $ 2189.04. It is contended, however, that by the true construction of the policy, the appellee never was in any manner answerable for the loss incurred; this leads us to consider the first ground of defense taken by the appellee.
On the day before this policy was underwritten, Whiting, the owner, obtained insurance, on the same vessel, from the Sun Mutual Insurance Company, to the amount of $ 7300, and, on the day following, another insurance from the Commercial Insurance Company, to the amount of $ 7300. The vessel was valued at the same sum in each policy, and each was for the same period of time, and covering the same risks. Each of the policies contained the following clause: "Provided always, and it is further agreed, that if the said assured shall have made any other insurance upon the premises aforesaid, prior in date to this policy, then this insurance company shall be answerable only for so much of the amount as such prior insurance may be deficient towards fully covering the premises hereby insured, without any deduction for the insolvency of all or any of the underwriters, and this insurance 

 [*310]  company shall return the premium upon so [**21]  much of the sum by them insured, as they shall be by such prior insurance exonerated from. And in case of any insurance upon the said premises, subsequent in date to this policy, this company shall, nevertheless, be answerable for the full extent of the sum by them subscribed hereto, without right to claim contribution from such such subsequent assurers, and shall accordingly be entitled to retain the premium by them received, in the same manner as if no such subsequent assurance had been made."
It has been argued, on behalf of the appellee, that the effect of this clause is to make the first underwriter responsible for the whole loss, where it does not exceed the amount underwritten in the first policy, and in such case to exempt subsequent underwriters from all liability for contribution. In support of this construction the case of The American Ins. Co. vs. Griswold, decided by the Supreme Court of New York, and afterwards affirmed by the Court of Errors, 14 Wend. 399, has been cited and much relied upon. In that case, the construction of a clause similar to the one before us, was most ably and elaborately discussed and considered, and although in the opinion [**22]  delivered by Chief Justice Savage, some sanction may be found for the position taken by the appellee, yet a careful examination of that case, and a mature consideration of the question, has confirmed us in the opinion, that the interpretation of the clause contended for by the appellee, cannot be supported upon any sound principles of construction. This proviso was first introduced into marine policies in the United States, and is generally called, "The American clause." It is unnecessary to enter into any particular examination of the origin and purpose of its adoption. It has been said that it was intended to restore the ancient rule of construction governing cases of double or over insurance, which had been disturbed by the decision of Lord Mansfield in Newby vs. Reed, 1 W. Black. Rep. 416. That decision was followed in the case of Thurston vs. Koch, decided in 1800 by the Circuit Court of the United States, for the district of Pennsylvania, 

 [*311]  4 Dall. 348. This last decision, it is said, led to the adoption of the American clause in marine policies. 5 Sergt. & Rawle 481. 14 Wend. 461, 482, 497. It may be conceded, however,  [**23]  that the purpose for which the clause was introduced, although it may afford some aid in arriving at its meaning, cannot control the construction of its language. As it was said by Chief Justice Savage, in 14 Wend. 473: "It is well settled that a policy of insurance is to be construed by its terms, in the same manner as any other written instrument; and if the fair and evident meaning of the language used, be to extend to all cases of prior and subsequent insurance, I know not what power the court has to limit the operation of the contract to double insurances only." Adopting this method of construction, and looking at the words of the clause, we have had no difficulty in arriving at their meaning, and are clearly of of opinion that they can apply only to cases of double insurance. In the first part of the clause the stipulation is, that if there be a prior insurance, the underwriter shall not be answerable on a subsequent policy except so far as the amount at risk may remain uncovered by the previous insurance; that is, if the prior policy is sufficient in amount to cover the whole value of the thing at risk, then the subsequent policy does not attach, the underwriter [**24]  is at no risk, and the premium is to be returned. So far as the amount at risk remains uncovered by prior insurance, a subsequent policy does attach, and the second underwriter is pro tanto liable upon his policy, and entitled pro tanto to retain the premium. It will be observed, that the stipulation is not, that the underwriter is to be exempt from liability, if there has been prior insurance to an amount sufficient to cover the loss, but that he is not answerable at all upon his contract, unless there be something to which his policy can attach remaining uncovered by prior insurance. When we look at the latter part of the clause, which provides for the case of a subsequent insurance, the meaning of the whole is alike clear and free from difficulty.
In that, it is stipulated, that, in case of any subsequent insurance, the underwriter shall remain answerable for the 

 [*312]  amount underwritten, "without right to claim contribution from such subsequent assurers, and shall, accordingly, be entitled to retain the premium received, in the same manner as if no such subsequent assurance had been made." These last words, which we have italicised, qualify the whole sentence,  [**25]  and are a key to its construction. If, in the case before us, there had been no policy on the ship except the first, (that of the Sun Mutual Insurance Company,) it is clearly settled, that the liability of that company would have been for only 7300/22000 part of the loss. The owner not having any other insurance, would stand as his own insurer, for that portion of the value of the ship remaining uncovered by the policy, and the loss, whether total or partial, would be apportioned between him and the underwriter. This relation between the assurer and assured is not changed, when the latter obtains a subsequent assurance, thereby substituting another underwriter for himself, as to that portion of the thing at risk, which is not covered by the first policy. According to the construction contended for by the appellee, the Sun Mutual Insurance Company, would be rendered liable for the whole loss, only in consequence of there being a subsequent assurance, which is directly in the face of the words of the contract, that it "shall be answerable in the same manner as if no such subsequent assurance had been made." On the construction of this clause, we concur in the views expressed by Senator [**26]  Tracy, in his very able dissenting opinion, in 14 Wendell 497 to 502; and also in the opinion on that subject, expressed by the Chancellor in the same case. 14 Wend., 482, 483.
On page 482, he says: "If the object of the American clause was, to restore this ancient rule of apportionment between the underwriters in successive policies, as it originally existed in the mercantile law of England, as well as the rest of Europe, it was hardly possible to do it in more appropriate and explicit language, than is used in the last paragraph of this clause."
The conclusion, from what has been said, is, that in the case before us, the liability of the appellee, upon the policy sued 

 [*313]  on, is not in any manner affected by the clause we have been considering; and at the time this action was brought the appellant had, under the admitted facts in the cause, a clear right to recover in this suit, 7400/22000 part of $ 2189.04, being that proportion of the loss, for which the appellee was answerable on its policy.
The remaining question for us to consider, is whether any thing which has since occurred has operated to discharge the appellee from liability [**27]  on its contract? We have seen that by the true construction of this policy, so soon as the loss occurred, the liability of the appellee to pay its just proportion of that loss was fixed; it became a debt due to Whiting, which like any other chose in action might be sued for and recovered, or assigned. As was said by Chief Justice Shaw, in the case of Wilson vs. Hill, 3 Metcalf 69, after deciding that the transfer of the title to property insured against fire, did not confer upon the assignee any right to recover the insurance money: "These considerations, said he, however, do not apply to a case where the assured, after a loss, assigns his right to recover that loss; it would stand on the same footing as the assignment of a debt, or right to recover a sum of money actually due, which like the assignment of any other chose in action, would give the assignee an equitable interest, and a right to recover in the name of the assignor, subject to set-off and all other equities."
Such was the nature of the debt due by the appellee to Whiting, at the time this suit was instituted. It is not pretended that the appellee has paid any part of it; no acquittance or discharge has [**28]  ever been given to it; but it is contended that the money which the appellee owed, was paid to Whiting by the Sun Mutual Insurance Company, and the appellee claims the benefit of that payment, although this case has been transferred to the Sun Mutual Insurance Company, and this suit is prosecuted for its benefit. In the consideration of the questions arising upon this branch of the case, it must be borne in mind that the several underwriters are strangers to each other; there is no privity whatever between them; each is liable upon its separate contract, for its just proportion of 

 [*314]  the loss, according to the amount underwritten in its own policy, and there would seem to be manifest injustice in allowing any one to escape from the payment of its own just debt, in consequence of another debtor, who is an entire stranger, having paid to the creditor more than he was justly entitled to claim, and the injustice becomes the more manifest, where, as in this case, the claim is assigned by the creditor to the use of the party who has thus overpaid his indebtment, and the suit is prosecuted for his benefit. In the case of Merryman vs. The State, at the instance of Harris, use of  [**29]   Murray, 5 H. & J. 423, Murray, who was not Merryman's surety, paid to Harris a debt of $ 162.36, which was in fact due from Merryman, and not, as Murray erroneously supposed, due from him. A suit was instituted in the name of Harris, for the use of Murray, to recover the amount from Merryman. The defense was urged that Harris' debt had been paid and satisfied. Judge Earle, in delivering the opinion of the court, (page 426,) says:
"If the payment of this $ 162.36, is at all to be considered as payment for Merryman, it is manifest Murray was not liable to pay it for him, and not having paid it at Merryman's instance, it presents the case of a stranger paying the debt of another, without his consent or knowledge. Such a payment does not necessarily discharge the debtor, and cannot be taken advantage of by him, without showing, by an acquittance or other means, that it was intended by the payer and receiver to operate a discharge. And, we think, there is great reason in this, for an action for money paid, laid out and expended, cannot be sustained by a stranger against a debtor, whose debt he has paid voluntarily and without directions, and, therefore, he (the debtor) shall not [**30]  avail himself of such payment in a suit by his creditor, unless he can show an express intention to extinguish the debt. This is not the case before us. The payment was made by Murray to Harris voluntarily, and without the knowledge of Merryman, and certainly without any intention in Harris to discharge the debt of Merryman." This language has been cited as expressing what we believe to be sound law, as it is plain justice, 

 [*315]  and strictly applicable to the case before us. In the particular case of Merryman vs. The State, the adjudication did not rest entirely upon the ground stated in the paragraph which we have quoted. In that case the payment by Murray had been made through a mistake of fact, and therefore he had a legal claim against Harris to recover it back. This circumstance would have aggravated the injustice of construing the payment by Murray to be a discharge of Merryman; but it is difficult to perceive how the legal obligation of Merryman could in any manner be affected by the legal rights existing between Harris and Murray, who was a stranger to him. It is clear to us that whether the payment by Murray to Harris had been through mistake of fact or mistake [**31]  of law, whether he would have had a legal right to recover it back from Harris or not, Merryman would equally have been liable for his debt. This depended, not upon the legal rights between Harris and Murray, but upon whether the money was paid by Murray, and received by Harris, with the intention of discharging Merryman's debt. Now, in this case, there is no pretence that the money paid by the Sun Mutual Insurance Company to Whiting, was paid for the purpose of satisfying and discharging the debt due by the appellee. This suit, which was then pending, remained upon the docket, and was entered to the use of the Sun Mutual Insurance Company, which is equitably entitled to be protected in its prosecution. See, 1 Wheaton's Rep., 233. 13 Johns. Rep., 353. 2 G. & J. 344, 353. The payment of the premium by Whiting to the appellee, made after the satisfaction of the judgment against the Sun Mutual Insurance Company, which has been relied on by the appellee's counsel as showing that the appellee was no longer held responsible on its policy, would rather evince the contrary, because, upon the construction of the policy, which would exonerate the appellee [**32]  from responsibility, the assured would be entitled to a return of the premium.
We have treated this question as if the amount, claimed in this suit, were an ordinary debt due from the appellee on contract. But it has been earnestly insisted, in argument, 

 [*316]  that being a contract of insurance, it stands upon entirely different grounds; and although, if it were an ordinary debt, the appellee might remain liable, yet being a contract of indemnity, no action will lie upon it after the loss has been paid to the assured, no matter by whom or from what source. When it is said that a marine or fire insurance is a contract of indemnity, we understand the meaning to be, that in order to support it, there must be an insurable interest; the assured must have some interest in the thing insured which is at risk, and liable to be injured; and that there can be no action maintained upon the policy unless there has been some loss incurred.
In the case of Godsall, and others, vs. Boldero, 9 East., 72, which was on a policy of insurance upon the life of William Pitt, obtained by the plaintiffs, who were his creditors, it appeared, that, after the death of Mr. Pitt, an appropriation [**33]  was made by Parliament for the purpose of paying his debts, and out of the money thus appropriated his executors paid the debt due the plaintiffs. The court in deciding the case treated the insurance as a contract of indemnity; the insurable interest of the plaintiffs was the debt due them by Mr. Pitt, and to secure them against the loss of that, the policy was executed; before the action was brought upon the policy, the debt had been paid; so that, in point of fact, no loss or damnification had been suffered by the plaintiffs, and it was held that they could not recover upon the policy. See Lord Ellenborough's decision, page 81. See, also, the observations on the case of Godsall vs. Boldero, made by the Vice-Chancellor, Sir Thomas Plumer, in Ex-parte Andrews, in re, Emett, 1 Madd., 573, and 2 Smith's Leading Cases, (American Edition of 1855,) pages 303 and 304. In subsequent cases overruling the decision of Godsall vs. Boldero, it has been repeatedly said, that the only error consisted in applying to a case of life insurance the principles which are applicable to marine or fire insurance.
In the case of Hamilton vs. Mendes, 2 Burr. 1210, [**34]  upon which the decision of Lord Ellenborough, in Godsall vs. Boldero, was based, Lord Mansfield made use of language 

 [*317]  which has been cited by the appellee and relied upon as sustaining his view in this case. Hamilton vs. Mendes was an action on a marine policy upon a ship and cargo, which had been captured, and was afterwards recaptured; the ship and cargo arrived safely and uninjured at the port of destination; but the assured attempted to abandon and brought his action on the policy. It was held that the assured had no right to abandon, after the peril was over and the thing in safety, and no damage having been suffered the action would not lie. It was with reference to that case, that the language of Lord Mansfield, cited by the appellee's counsel, was used, and we need not say that the case of Godsall vs. Boldero, and that of Hamilton vs. Mendes, were wholly unlike the case before us. Here the loss has actually occurred. Upon the happening of the loss the responsibility of the appellee was fixed. The proportion due upon its policy became, according to the language of Chief Justice Shaw, in 3 Metcalf, before cited, a debt due from the appellee, like [**35]  any other debt or chose in action, which has not been paid or discharged by the appellee or by any one for it.
Each of the insurance companies was bound, on its separate contract, to indemnify the insured for a certain portion or fractional part of his loss. They were not co-sureties, neither was legally bound to pay the whole, with the right of then calling on the others, for their respective proportions; and as the appellee is not legally liable over to the Sun Mutual Insurance Company for contribution, it (the appellee) cannot claim the benefit of the overpayment made by that company, which was not made on behalf of the appellee, or for the purpose of discharging its debt, but solely for the purpose of paying the debt which the other underwriter supposed it owed to the assured.
In support of the view here expressed, we refer to the case of Lucas vs. Jeff. Ins. Co., 6 Cowen 635, which is an express adjudication upon this point. The question also arose in the American Ins. Co. vs. Griswold, 14 Wend. 399. See the statement of the case, 400, 401, 402, 403, and the argument of counsel, 427 and 457. Whatever difference of opinion 

 [*318]   [**36]  there was upon other points involved in that case, on this question there was no dissent, either in the Supreme Court or the Court of Errors. On page 483, the Chancellor said: "If either of the subsequent underwriters have paid to the assured upon a compromise of the claims made upon them, more than they were legally bound to pay under their contracts, that is a matter with which the underwriters, in the first policy, have no concern; since they are not bound to refund any thing to the subsequent underwriters, and never had any claim upon them for contribution. If the assured have received any thing, under such a compromise, which they cannot conscientiously retain, they should restore it to those from whom it has been received; but the American Insurance Company, or its stockholders, have no equitable right to insist that it shall be allowed to them in discharge of their legal liability under the first policy."
Believing these views to be correct, we are of opinion, that under the facts and circumstances of this case, the payment made to Whiting, by the Sun Mutual Insurance Company does not enure to the benefit of the appellee, and is no bar to a recovery in this action. One other [**37]  ground of defense has been taken by the appellee. It is argued that the judgment rendered against the Sun Mutual Insurance Company was an adjudication by a court of competent jurisdiction, which conclusively settled the liability of that company, upon its policy, for the whole loss; and is a bar to this suit. This ground of defense, like that which we have just considered, is purely technical, and if it be sustained, would defeat the plain justice of the case. This consideration, however, while it may invite us to scrutinize the argument more closely, cannot be allowed to control our judgment, so as to lead us to disregard the principles of the law which are applicable to the subject; if they are found to support the appellee's position, the defense must prevail, however technical it may be. We think, however, that this ground of defense is more ingenious than solid; and in this case, as in most others growing out of commercial contracts, it will be found that the rules of the law are consistent with the principles of justice.

 [*319]  No authority has been cited which sanctions the proposition, that the judgment rendered in the case of Whiting vs. The Sun Mutual Ins. Co., [**38]  can in any manner affect the rights or liabilities of the appellee in this action; the appellee was no party to that suit; it was res inter alios, and the adjudication therein, could neither bind nor discharge the appellee. Inter partes, such a judgment is an estoppel; but it cannot operate upon strangers. To illustrate this, let us suppose that by the true construction of these several policies of insurance, the Sun Mutual Insurance Company had been legally responsible for the whole loss, and the appellee not liable for any part of it; and, in the suit against the former company, it had been erroneously adjudged that it was answerable for only a part, could it be for a moment maintained, that in a suit against the appellee, the judgment in the former case could be invoked as a judicial determination upon the construction of the policies, which would bind the appellee? Such a proposition would not be tolerated for a moment, and yet the defense here rests upon a proposition which is the same in principle. There is no doubt, that the judgment against the Sun Mutual Insurance Company, was a conclusive settlement of the rights between it and Whiting, whether that judgment was obtained [**39]  upon a trial and verdict, or entered by voluntary confession. The defendant in that suit was thereafter conclusively bound to pay the amount of the judgment; and when paid would have no legal right to recover back any part of the money, no matter how erroneous the judgment might be. But its position in that respect would have been in no wise different if it had paid the whole of the money voluntarily, without suit, under a mistake of law; and yet, as we have before said, such a payment would not enure to the benefit of the appellee, which is a stranger to the transaction. In either case, the money so paid, beyond the amount due, ought, in conscience, to be returned; the appellee has surely no right to insist that it shall be retained, so that it may be exonerated from the payment of its own debt. It follows from what has been said, that, in our opinion, none of the grounds of defense to this action 

 [*320]  can be sustained, and that upon the whole case, as presented on the statement of facts, the appellant is entitled to recover.
Believing that the court below erred in refusing the plaintiff's prayer, and in the instruction given to the jury, the judgment must be reversed.
 [**40]  Judgment reversed and procedendo ordered. 

DISSENTBY:
ECCLESTON (In part) 

DISSENT:

ECCLESTON, J., delivered the following separate, and, in part, dissenting opinion.
This is an action of assumpsit, instituted by James Whiting against the appellees, in the Superior Court of Baltimore city, in May 1855.
A declaration and the plea thereto being filed, the counsel agreed that all objections to the form of action and errors in pleading should be waived, and that either party should be at liberty to give in evidence any matter which might be admissible under any form of action or issue.
James Whiting, the owner of the barque "A. A. Drebert," on the 15th of March 1854, obtained a policy of insurance upon the vessel, from the Sun Mutual Insurance Company, in which the vessel was valued at $ 22,000, and insured to the extent of $ 7,300. On the 16th of the same month, he obtained a policy from the Independent Mutual Insurance Company, valuing the vessel at the same amount, and insuring her to the extent of $ 7,400; and, on the next day, he obtained a third policy from the Commercial Mutual Insurance Company, valuing the vessel at the same sum, and insuring her to the extent of $ 7,300; the [**41]  policies making a total insurance of $ 22,000, that being the valuation of the vessel. The same period of time, and the like risks, were covered by each policy.
In that executed by the defendant in this suit, is contained the following clause: "Provided always, and it is further agreed, that if the said assured shall have made any other assurance upon the premises aforesaid, prior in date to this policy, then the said The Independent Mutual Insurance 

 [*321]  Company shall be answerable only for so much of the amount as such prior insurance may be deficient towards fully covering the premises hereby insured, without any deduction for the insolvency of all or any of the underwriters, and the said, the Independent Mutual Insurance Company, shall return the premium upon so much of the sum by them insured, as they shall be, by such prior insurance, exonerated from. And in case of any insurance upon the said premises, subsequent in date to this policy, the said the Independent Mutual Insurance Company, shall, nevertheless, be answerable for the full extent of the sum subscribed hereto, without right to claim contribution from such subsequent assurers, and shall accordingly be entitled [**42]  to retain the premium by them received, in the same manner as if no such subsequent assurance had been made."
The execution of the three policies was admitted, and they were read in evidence at the trial.
It was admitted that the vessel sailed on the voyage indicated in the policies, and that she was injured to the amount of $ 2189.04, (after deducting new for old;) that three suits, of which this is one, were respectively brought against said companies for this amount; and that judgment was given in favor of the plaintiff, Whiting, against the Sun Mutual Insurance Company, for the above amount, on the 4th of December 1855, with costs; that the said judgment was satisfied and paid in full by the said Sun Mutual Insurance Company; that, during the trial of the case, no question of the proportionate or pro rata liabilities of said company was raised by it or its attorney.
The registry and American ownership of the vessel were admitted. And it was agreed that the facts admitted should be given in evidence in the case of the Sun Mutual Insurance Company against the Independent Mutual Insurance Company, then pending in the Superior Court for Baltimore city.
It was agreed that the [**43]  premium, which was the consideration for the insurance made as above stated, by the Independent Mutual Insurance Company, was paid to the said company, 

 [*322]  by Whiting, on the satisfaction of the judgment aforesaid by the Sun Mutual Insurance Company; and that the injury sustained, as above stated, was by perils insured against.
The defendant asked two prayers, and the plaintiff one. Whilst the prayers were being discussed, and before the court had given any decision thereon, the plaintiff's counsel made an offer to the defendant's counsel, which the latter refused to entertain. The offer was as follows:
"The Sun Mutual Insurance Company offers to the defendant to enter the case off, and to release the defendant, if the said defendant will give judgment for 7400/22000 of $ 2189.04, in the case now (then) pending in this court, by the said Sun Mutual Insurance Company against the said defendant, or that, if judgment be confessed for the same amount in this case, that the said Sun Mutual Insurance Company will enter the said case against the defendant off, and release the defendant."
The court then rejected the plaintiff's prayer, and, without passing on the defendant's [**44]  prayers, instructed the jury that, upon the facts stated in the admission of facts, their verdict must be for the defendant. To which ruling of the court the plaintiff excepted.
The verdict and judgment being in favor of the defendant, the plaintiff appealed.
The suit in this case was instituted in the name of James Whiting, the assured. The use of the Sun Mutual Insurance Company, it was conceded in argument, was entered after Whiting had received payment and satisfaction for his judgment against the Sun Mutual Insurance Company. And there is no evidence tending to show that the payment of that judgment was made with any understanding, agreement or expectation, that the present suit should be transferred to, assigned or entered, for the use of the Sun Mutual Insurance Company.
The appellant's counsel have contended--and, I think, correctly so--that the three policies did not insure the same interest in the vessel, but that each policy was upon a separate 

 [*323]  interest or portion in the vessel; that, at the commencement of the risk, there was sufficient aliment for each policy, and that each then attached.
On the part of the appellant it has also been insisted, that [**45]  from the language of the American clause, as well as from the motives or circumstances which induced its adoption, it must be understood as designed to apply, only to cases of double or over assurance; and that the present case is neither the one nor the other.
According to the ancient English rule, prior to the year 1763, if there were several policies of different dates, constituting a case of double insurance, the second policy only attaches upon or covers so much of the insurable interest as the prior policy did not cover; the second underwriter being only entitled to retain the premium pro tanto, where the commencement and termination of the risks and the perils insured against were the same.
In Newby vs. Reed, 1 Wm. Bl. 416, decided in 1763, it was held by Lord Mansfield, that in case of a double insurance, although the insured was not entitled to two satisfactions, yet he might recover the whole against either of the insurers, and leave him to recover a ratable satisfaction from the other insurers. This decision has been frequently spoken of as having introduced a new rule. It was adopted in Thurston vs. Koch, 4 Dallas 348. This [**46]  latter decision seems to have been considered by Mr. Justice Gibson, in Peters vs. Delaware Ins. Co., 5 Sergt. & Rawle 481, as having occasioned the introduction of the American clause; which view is to be found repeated in several of the elaborate opinions given in the much contested and ably considered case of American Ins. Co. vs. Griswold, 14 Wend. 464, 473, 497. There the operation and effect of the clause was very fully considered; and the authorities bearing on the subject were examined with much care and ability. It is there, as elsewhere, said, the object of introducing the clause was to restore the ancient English rule, as it existed before the decision in Newby vs. Reed. In addition to the above pages in 14 Wend., see Brown vs. Hartford Ins. Co., 3 Day 58.

 [*324]  The decision of the Supreme Court of New York, announced by Chief Justice Savage, in the case of American Ins. Co. vs. Griswold, was affirmed in the Court of Errors; Chancellor Walworth and twenty Senators uniting in the affirmance, Senators Tracey and Jones dissenting.
In that case, there were goods shipped on a trading voyage, insured in three [**47]  policies on time. The value of the cargo exceeded the whole amount insured in the three polities. At the first port where the vessel stopped to trade, a portion of the cargo was landed in safety; the residue of the cargo, equal in value to the sum subscribed in the first policy, was totally lost by one of the perils insured against. Each policy contained the American clause, and under that the first assurer was held responsible for the whole sum subscribed in the first policy, without any right to claim contribution from the subsequent assurers. The dissenting opinion of Mr. Senator Tracy held that the American clause in a policy, applies only to cases of double assurance; that is, where the insufficiency in value to give aliment to the several policies exists at the time of executing the policy, and not when it is superinduced by the withdrawal of a part of the subject at risk, after the policies have all attached, and the risk in respect to each commenced.
Mr. Phillips and Mr. Parsons seem disposed to adopt the reasoning of Senator Tracy, as having given the correct interpretation of the American clause. 2 Phil. on Ins., sec. 1261. 2 Parsons' Maritime Law, 97, 98, and [**48]  note 1.
After careful investigation of the subject, I think the circumstances under which the American clause was first introduced, and the proper interpretation of the language employed therein, justify the conclusion that the clause is not applicable where there is no double or over assurance when the risk commences.
In the present instance, there was aliment sufficient to feed all the policies, at the commencement of the risk, consequently there was no double or over assurance; and therefore the clause can have no effect in this case.

 [*325]  In this conclusion, my brothers and myself concur. The residue of this opinion contains my separate views.
The next question for consideration is, whether the appellant is entitled to a reversal of the judgment appealed from, if the policies are to be construed as though the American clause had not been inserted?
Under such a construction of the policies, each company would have been answerable, only, for its ratable proportion of the loss. No one of them would have been bound to pay the whole, the one so paying the whole or more than its share, by compulsion, having the right to demand contribution from the others. They stood [**49]  in no such relation to each other as co-sureties do; but each separately and independently liable for its ratable proportion of the loss, and no more. The Sun Mutual Insurance Company, therefore, was responsible, on account of the loss, for only 7300/22000 of $ 2189.04, and had a valid legal defence, which might have been successfully urged against any larger demand, if such a defence had been properly presented in due time, in the suit against that company by the assured.
A similar defence would have been equally available, if the two subsequent policies had not been made, for then, in the language of the books, the assured would have stood his own insurer, to the extent of his interest in the vessel uninsured by the first policy. The defence, however, was not made, and the judgment was permitted to be given against the Sun Mutual Insurance Company for the whole loss. This, I take it for granted, resulted from a belief that the American clause rendered that company liable for the whole sum. If then there was a mistake in permitting such a judgment and paying it in full, it was a mistake of law and not of fact.
Supposing that after the judgment had been thus rendered, instead of [**50]  paying it, the defendant therein had filed a bill in equity to obtain relief, by having the same reduced to the correct proportion of the loss for which the policy was legally liable; such relief could not have been granted; because, there was a legal defence which might have been availed of, but was not attempted to be made.

 [*326]  I do not understand the counsel for the Sun Mutual Insurance Company as having contended, that this company had any right of action to recover from the assured any portion of the money paid him, in satisfaction of the judgment. They insist, however, that the payment was not designed to pay or to satisfy the debt or portion of the loss due from the Independent Mutual Insurance Company, the defendant in this suit; but that the claim of the assured against this defendant was not extinguished by the said payment; and that there was an equitable consideration, arising from the payment by mistake, sufficient to sustain an equitable assignment of this suit from Whiting to the Sun Mutual Insurance Company; and therefore the use, for that purpose, was properly entered, and the suit should have been sustained.
But, in reply to these views, it is said a marine [**51]  insurance is a contract of indemnity; and whenever the loss or damage sustained is paid in full, or made good, even aliunde, there is an end of the damnification, and the insurer is no longer liable.
In Godsall vs. Boldero, 9 East., 72, the plaintiffs, as creditors of Mr. Pitt, insured his life, for the purpose of securing their debt. After his death this debt was paid by his executors, out of a sum of money granted by Parliament for that purpose. A suit being instituted upon the policy to recover the amount of the insurance, the Court of King's Bench decided adversely to the plaintiffs. The judgment of the court, as delivered by Lord Ellenborough, maintained the doctrine that the life policy was a contract of indemnity, and the debt of Mr. Pitt having been paid by his executors, the insurers were no longer responsible.
This decision, after being repeatedly quoted and followed, and sometimes its correctness doubted, was overruled in 1854, in the Exchequer Chamber, in the case of Dalby vs. The India and London Life Assurance Co., 80 Eng. Com. Law Rep. 365, and same case in 28 Eng. Law & Eq. Rep. 312. It will be seen, however, that the reason assigned [**52]  for overruling the decision of Lord Ellenborough is, that he committed an error in considering a life-policy to be a contract of indemnity. 

 [*327]  After speaking of his lordship's reliance upon the decision of Lord Mansfield in Hamilton vs. Mendes, as showing that the plaintiff's demand was for an indemnity only; Baron Parke then says: "Lord Mansfield was speaking of a policy against marine risks, which is in its terms a contract of indemnity only." Again the Baron speaks of being quite satisfied, that the case of Godsall vs. Boldero was founded on a mistaken analogy; alluding, of course, to a mistake in considering a life-policy a contract of indemnity in analogy to a marine policy.
In the more recent case of Law vs. The London Indisputable Life-Policy Company and Robertson, 1 Jurist 178, N. S., (Part 1,) the decision of the Exchequer Chamber, overruling Godsall vs. Boldero, is referred to as placing life-policies on a right footing. Vice-Chancellor Wood then says: "Policies on fire and on marine risks are policies expressly, in the very words of the policies, made to recompense a loss which the parties may sustain in consequence of the calamities [**53]  against which the policies are effected; therefore, when that loss is made good aliunde, the company are not liable in any way, under the express terms of their contract, in respect of that which has not accrued, viz., loss; but when the question comes to be a question on a life-policy, there is no such contract in the policy itself. The policy never refers to the cause or reason for affecting the assignment." Again, he says: "They" (the company) "have founded their calculation upon the probability of duration of human life, and they get paid the full value of that calculation. On what principle can it afterwards be said, that because somebody else is good enough to satisfy the object which the insured had in view when he effected the assurance, the insurer should be released from the contract?"
An examination of the authorities will clearly show, that if the principle announced in Godsall vs. Boldero had been applied to a fire or marine insurance, the decision would not have been held erroneous. The error consisted in holding a life-policy to be a contract of indemnity, in analogy to a fire or marine policy.

 [*328]  Merryman vs. The State, 5 H. & J. 423, has [**54]  been referred to by the appellant's counsel, as having an important bearing on the present controversy. But, in that case, no contract of indemnity was involved.
The payment of the money by Murray, on which the action was sustained, was a payment made by him under a mistake of fact, and not of law.
In the opinion of the court, they refer to prior decisions of their own, based upon the principle that a payment by a security will operate as an assignment of the debt against the principal, so as to enable him to sue, or execute for it, in the name of the creditor, for his use. After citing Sotheren vs. Reed as one of the cases of this description, that is shown to be where a surety in a testamentary bond, having paid the creditor his money, and satisfaction of record being entered on the judgment against the surety, he was deemed equitably entitled to the judgment against his principal. And then the opinion concludes thus: "Under all the circumstances of this case, we are of opinion that it is within the principles of our former decisions, and we therefore affirm the judgment."
In the case before us, there is a contract of indemnity. If there was a mistake in paying the loss,  [**55]  it was a mistake of law, and not of fact. And there is no relation of principal and surety, or of co-sureties between any of the parties connected in any way with the matter in dispute. This case is therefore essentially different from that of Merryman vs. The State.
Williamson vs. Allen et al., use of Riston, 2 G. & J. 344, is a suit upon a promissory note drawn by Williamson in favor of Wilson, Williamson & Co., and by them endorsed to S. & M. Allen & Co. The note not being paid at maturity, suit was instituted by the endorsees. Riston had promised to pay the note if not paid by the maker or endorsers. After the institution of the suit, and before the trial, he paid the plaintiffs the amount of the claim. The amount so paid was in different sums, at different times. When the last payment was made, the plaintiffs gave Riston a receipt, stating the different sums, and concluding: "which is in full of 

 [*329]  a note, held by us against D. Williamson, for $ 2500, which note is now in suit, and the proceeds of the same properly belonging to said Riston." A few days before the trial, the suit was entered for Riston's use.
The defence set up was, that the [**56]  indorsees had been paid and satisfied the full amount of the note, which was thereby extinguished, and therefore the suit could not be prosecuted to judgment, in the name of the indorsees, for the use of Riston, to recover the money for which the note had been given. Prayers to that effect were submitted to the court below, on the part of the defendant. The court refused to grant them, "being of opinion that the defendant had adduced no evidence to show that any payment had been made to the plaintiffs by the defendant, or by his agent; but that the sum received by the plaintiffs from Riston must be considered as a consideration paid by him to the plaintiffs for an equitable assignment of the plaintiffs' legal interest in the cause of action."
The decision was affirmed, and, evidently, upon the ground that it was shown by the receipt and the other evidence in the cause, that Riston had not paid the claim on the defendant's account, or as his agent, with a view to discharge the note, but with the intention to acquire the beneficial interest himself.
It has been admitted in the present case, that the Sun Mutual Insurance Company paid and satisfied in full the judgment rendered against [**57]  it; which was for the whole loss of the assured. And I have seen nothing in this record to show that the said company, before or at the time of the payment, had any expectation or design of obtaining, by reason of such payment, any equitable assignment of, or beneficial interest in, the present suit; or that said Company had any other design or intention than to satisfy and extinguish Whiting's entire claim for his loss.
In the consideration of this case, it should be borne in mind, that the judgment against the Sun Mutual Insurance Company, was in a court of competent jurisdiction, which judgment ascertained the liability of that Company, under 

 [*330]  its policy, to be the whole amount of the loss sustained by the assured.
It appears that the judgment against the Sun Mutual Insurance Company for the whole amount of the loss, must have been paid after the institution of this suit and before the trial.
Entertaining the views which have been expressed in this opinion, I deem it needless to inquire whether there was or was not error in the refusal of the prayer submitted by the plaintiff, or in the instruction given by the court. If the ruling of the court was erroneous in any [**58]  respect, it could only have been so, in my opinion, because the plaintiff had a right to nominal damages, inasmuch as the payment of the loss to the assured by the Sun Mutual Insurance Company was made after the commencement of this suit. If, however, on that account there ought to be a reversal of the judgment, still I think there should be no procedendo, for the reason that the plaintiff is not now entitled to recover the money claimed. Rawlings vs. Adams, 7 Md. 26. 

120 of 196 DOCUMENTS 

GEO. W. WEEMS vs. THE PRESIDENT, DIRECTORS and COMPANY of the FARMERS BANK of MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 231; 1860 Md. LEXIS 22 

April 18, 1860, Decided 

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

Assumpsit brought, on the 28th of August 1855, by the appellee, as endorsee, against the appellant, as endorser, of two bills of exchange, both drawn by James Kent on J. J. Speed, of Baltimore, and by him accepted, one for $ 1000, dated Annapolis, March 31st, 1852, at five months, payable to the order of the defendant, and by him endorsed to the plaintiffs, the other for $ 285, dated Portland Manor, May 7th, 1852, at six months, payable to the order of Thos. H. Kent, and by him endorsed to the defendant, who endorsed it to the plaintiffs. Plea non assumpsit.

Exception. The handwriting of the drawer, acceptor and endorsers of both drafts, were admitted. The plaintiff then read in evidence the original protests of both drafts, in each of which the notary states that, he "presented the said bill of exchange to Thomas Whelan, Jr., one of the administrators of the late J. J. Speed, the acceptor thereof, and demanded payment therefor, and was answered, no funds in hand to pay it," &c. The plaintiffs also read in evidence copies of the notices of dishonor to the defendant, and proved that said notices were received at their banking [**2]  house in Annapolis, on the day after the respective drafts were protested, and that they were on the same day, enclosed in an envelope, directed to the defendant at Lower Marlborough, and put in the Post Office at Annapolis, in time to go by the mail of the succeeding day, and proved also that the Post Office of the defendant was at Lower Marlborough. The defendant thereupon asked the court to instruct the jury:

1st. That there is no sufficient evidence of a demand for payment, and refusal to pay the bills of exchange, given in evidence by the plaintiffs, to charge the defendant in this case as endorser of the said bills of exchange, and that they must, therefore, find their verdict for the defendant.

2nd. That there is no sufficient evidence that notice was given to the defendant of presentation and demand of payment, and refusal to pay by the acceptor, or any one for him, of the bills of exchange, given in evidence by the plaintiffs, and that their verdict must, therefore, be for the defendant.

The court (LEE, J.) rejected these prayers, and to this ruling the defendant excepted, and, the verdict and judgment being against him, appealed.  

DISPOSITION:
Judgment reversed and procedendo [**3]  ordered.  

HEADNOTES:

If the acceptor of a bill of exchange be dead, demand may be made upon his personal representative, but there must be competent and legal proof of his death, and that the party upon whom the demand was made was such representative; the statement of those facts in the protest is not prima facie proof thereof.

The Act of 1837, ch. 253, only makes the protest prima facie proof of presentment "at the time and in the manner" therein stated; its object was to dispense with the necessity of calling the notary as a witness, and to make the protest prima facie evidence of the fact that he had presented the bill for payment at the time and in the manner therein stated.

But this Act does not make the protest any evidence of other collateral or independent facts it may contain. especially when such facts are not necessarily within the personal knowledge of the notary, or are of such a character as could not be established by his testimony if he were produced as a witness.

The statement in a protest, that the party on whom the demand was made, was "one of the administrators" of the acceptor, does not establish the facts of the death of the acceptor, and of the granting of letters of administration on his estate to such party.  

COUNSEL:
Robt. J. Brent, and Jno. P. Poe for the appellant.

This case presents two points, viz., the sufficiency of the presentment and demand, and the sufficiency of the notice of that presentment and demand upon the acceptor, to the endorser.

Upon general principles, it is clear, the prayers of the defendant should have been granted, for there is not a particle of testimony in the case to show that Speed, the acceptor, was dead, or that Whelan was his administrator, and in the absence of such evidence connecting the party upon whom the demand was made with the acceptor, the demand would have been unathorised and gratuitous, and could not have fixed a liability upon the endorser. The law is well settled that in case of the death of the maker at the time of the maturity of the note, presentment for payment should be to his executor or administrator, if any one be appointed and qualified to act. Story on Prom. Notes, sec. 253. And, of course, in an action where it is necessary to show a due demand upon and refusal by the executor or administrator, the fact must be shown by the best evidence, (i. e., by letters testamentary or of administration,) that the party upon whom [**4]  the demand was made, was, in fact, the duly appointed and qualified executor or administrator. In this case this was not done, or attempted to be done, and consequently the plaintiffs would not have been entitled to recover.

But, it is contended by the appellees, that the Act of 1837, ch. 253, makes the notarial protest prima facie evidence of its contents, and as the protest represents the demand to have been made on Whelan, one of the administrators of Speed, the acceptor, and as there is no other evidence in the record as to whether Whelan was really the administrator, the evidence of presentment was therefore sufficient. The question to be determined is, therefore, whether this act will bear the construction given to it by the appellees, so as to supersede the necessity of the proof which, but for that Act they would have been obliged to supply before entitling themselves to a recovery.

The language of the first section of the Act (which alone relates to the point now under discussion,) is as follows: "Be it enacted, &c., that a protest duly made by a notary public, of a promissory note, for non-payment, or of a bill of exchange, whether foreign or inland, for non-acceptance [**5]  or non-payment, shall be prima facie evidence of such non-payment or non-acceptance, and of the presentment of such note for payment, or of such bill for acceptance or payment at the time and in the manner stated in the protest."

The object of this law, as declared by this court in Whiteford vs. Burckmyer & Adams, 1 Gill, 149, was "to extend the credit, which, by the courtesy of commercial nations had previously been given to the certificate of a notary public." Before its passage, it was necessary, in order to prove presentment and demand upon the maker of a note or acceptor of a bill, to produce the notary upon the stand as a witness. His certificate was not admissible evidence, except in case of his death. Whittington vs. Farmers Bank, 6 H. & J., 548. To obviate the great practical difficulty of procuring such evidence and to prevent injustice, the certificate of the notary was declared by the Legislature to be prima facie evidence of the presentment by him, for acceptance or payment, "upon the ground, that in every community this officer would be worthy of faith and credit, or at least would be so considered until the contrary was made to appear by disproving his assertion.  [**6]  " It could never have been designed by its framers, nor can its language be made to bear such a construction, that the certificate of the notary should be proof of any collateral fact, of which he could know nothing but by hearsay; the fact of the presentment at the time and in the manner stated in the protest, is all the statute declares the certificate, of itself, capable of establishing. The only rule of evidence which the law intended to modify, was that strict one which required the production of the notary himself; and inasmuch as it breaks in upon well settled principles applicable to such cases it should not be extended by construction beyond its letter.

To apply a test to this question, which, it is submitted, is decisive:--Suppose that the certificates of protest had been lost and the notary had been called to prove, that he had made a demand upon Whelan, administrator, would he not have been instantly instructed by the court not to say anything about administration, without showing the letters of administration; or unless the proper foundation had been previously laid, by proving that Whelan was the duly appointed and qualified administrator? And can the certificate [**7]  of the notary be admitted to establish that which the notary himself would have been declared incompetent to prove? Is not this court, if they affirm the judgment of the court below, in effect saying, that greater weight shall be given to the unsworn certificate of a notary, than his testimony, under oath, would be allowed to have? The appellant does not deny the fact, that a demand was made upon Whelan, as stated in the certificate, but he denies, that there is any evidence at all that Whelan was the administrator, and as such the proper party to be called on for payment.

The second prayer will of course share the fate of the first; if one contains a correct statement of the law, the other does also, for if the presentment and demand were irregular, notice to the endorser of such irregular presentment and demand can certainly not bind him. The notice is defective also, because it does not state a demand on, and refusal by, the personal representative of the acceptor, which, in all such cases, are facts necessary to be communicated to the endorser in some form or other, in the notice of protest. Boehme vs. Carr, 3 Md. Rep., 210. Hunter vs. Van Bomhorst, 1 Md. Rep., 504.

We [**8]  therefore respectfully submit, that the court below erred in rejecting the prayers of the defendant, and ask for a reversal of the judgment.

Alex. Randall, and Alex. B. Hagner, for the appellees.

1st, There is no doubt that a demand upon the personal representative is sufficient, in the event of the death of the acceptor before the maturity of the bill. Chitty on Bills, 357, 367. Story on Bills, secs. 326, 346, 362. Byles on Bills, 159. The books do not expressly decide as to the sufficiency of a demand, upon one of several administrators, but, upon principle, it should be sufficient. One administrator is competent to grant releases and perform almost every act affecting the estate, which could be accomplished by all. 10 Iredell, 263, Hoke vs. Fleming. 8 Blackf., 170, Herald vs. Harper. 2 Barb. Ch. Rep., 111, Stuyvesant vs. Hall. So a demand upon one of several partners is sufficient to bind the firm. Story on Bills, secs. 305, 362. Story on Prom. Notes, secs. 253, 255. 15 Ala., 832, Brown vs. Turner. The demand, therefore, was sufficient, if Whelan was sufficiently proved to be one of the administrators of Speed.

2nd. But it is contended that there is no evidence in [**9]  the record that Speed was dead, or that Whelan was his administrator. If administration was granted upon Speed's estate, it is sufficient proof that he was dead. 1 Greenlf. on Ev., sec. 550. We insist, that the statement of the notary, admitted, as it was, without objection by the appellants, furnishes sufficient prima facie proof, that Whelan was one of the administrators. The Act of 1837, ch. 253, declares, that the protest, duly made, of a bill of exchange for non-payment, shall be prima facie evidence of such non-payment, and of the presentment of such bill for payment, at the time and in the manner stated in such protest.

Now the manner in which the demand was made in this case by the notary, was by presenting the bill to "Whelan, one of the administrators of the late J. J. Speed," and demanding payment from him, and the protest is declared to be prima facie evidence that the demand was made in this manner. What is this but a certificate by this public officer, that Whelan was acting as the administrator of Speed, and that finding him acting in that capacity he accordingly made the demand upon him? The certificate, therefore, is prima facie evidence that he made the demand [**10]  upon an individual who was acting as the administrator of Speed. Suppose the demand was required to be made upon a firm, and the notary should state, that he presented the bill to A., one of the firm of A. & Co., would not this statement be taken as prima facie evidence that A. was a member of the firm? In Nailor vs. Bowie, 3 Md. Rep., 251, the only evidence that the drawer had removed from Washington, was the statement in the protest, and yet this fact was held, in that case, to be sufficiently proved, in the absence of any contradictory testimony. It may be that the person upon whom the demand has been made in a particular case, is not, in fact, a party to the bill, but that the notary has been misled by a similarity of name or appearance. Proof of such a mistake would defeat the action. But the averment of the notary is prima facie evidence of the regularity of the demand, and in the absence of opposing evidence, would warrant the jury in finding the fact as alleged. In the same way the averment of the name of the holders of the bill--of the particular bank or house where the demand was made--of the residence of the notary, &c., &c., may prove to be erroneous, but prima facie they [**11]  are to be taken as correct; and yet these matters are quite as much disconnected with the actual presentment and demand, as the statement, that the notary found Whelan acting as the administrator of Speed. In the case supposed by the appellant's counsel, where the notary himself should appear on the stand and state that he made the demand on the administrator, we deny that it would be necessary to produce the letters, unless objection was made to this statement by the other side. If the defendant did object, then it might be necessary to advance further proof. So in the present case, the protest states that the demand was made upon Whelan, the administrator, and this protest, containing this statement by this universally recognized public officer, was admitted without objection. No further evidence can be afterwards required of the truth of these admitted statements. If objection had been made, the case might be different, although the fact that Whelan was acting as the administrator, might be sufficient evidence of his appointment in a collateral inquiry like the present.

The notice and protest were read in evidence to the jury without objection, and they are, therefore, evidence [**12]  of every fact necessary to entitle the plaintiffs to recover. It will be observed, that it does not appear from the record, that the evidence in the bill of exceptions, was all the evidence offered by the plaintiffs; all the matters of evidence considered necessary by the appellant, may have been afterwards introduced by the plaintiffs. Certainly the jury rendered a verdict for the plaintiffs, upon what they considered sufficient evidence. The plaintiffs had the right to decide for themselves, as to the order in which they should introduce their proof, and accordingly proceeded in the manner described in the exception. Can this court say, in the absence of a contrary statement in the exception, that this was not followed up by other evidence? Unless this was done, it is in the highest degree improbable, that the point, now relied upon by the appellant, was raised below, and therefore under the Act of 1825, ch. 117, this court cannot consider it now. If it had been raised below, nothing was easier than to produce the letters of administration, by way of further proof.

The courts now incline against these technical defences by endorsers. That the appellant was, in fact, injured [**13]  in any way by any informality in the protest, will not be pretended. Will the court strain a point in this case, to promote unnecessary litigation and further expense and delay? 

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

OPINIONBY:
BARTOL 

OPINION:

 [*239]  BARTOL, J., delivered the opinion of this court.
We are of opinion, that the Superior Court erred in refusing the appellant's first prayer.
In order to fix upon the appellant legal responsibility upon the bills of exchange sued on, it was necessary (under the statute,) to prove a demand for payment made upon the party first liable, or his legal representative. In this case, the only proof of such demand is to be found in the notarial certificate of protest, offered in evidence by the appellee. That protest states, that the notary "presented the said bill of exchange to Thomas Whelan, Jr., one of the administrators of the late J. J. Speed, the acceptor thereof, and demanded payment therefor," &c., &c.
If the acceptor of a bill be dead, demand may be made upon his personal representative. But in this case there is no proof of the death of Mr. Speed, the acceptor, nor of the fact that Mr. Whelan, upon [**14]  whom the demand was made, was one of his administrators. Those facts are stated by the notary in his protest, and it is contended that under the Act of 1837, ch. 253, this statement is sufficient prima facie proof.
The Act provides, that a protest, duly made by a notary public, shall be prima facie evidence of the presentment of a note or bill for payment, "at the time and in the manner stated in the protest."
The object of the Act of 1837, was to dispense with the necessity of calling the notary as a witness at the trial, and to make the protest prima facie evidence of the fact, that he has presented the bill for payment at the time and in the manner therein stated, 1 Gill 149; but the Act does not constitute the certificate of the notary, any evidence of other collateral or independent facts, which it may contain, especially when such facts are not necessarily within the personal knowledge of the notary, or are of such a character as could not be established by his testimony if he were produced 

 [*240]  as a witness. In this case, the fact that the bills sued on, were presented to Thomas Whelan, Jr., is sufficiently proved by the protest offered [**15]  in evidence; but the demand upon Mr. Whelan would not be sufficient, unless it be proved that he was the legal representative of Mr. Speed, the acceptor. The statement in the protest, that he was one of the administrators of Mr. Speed, cannot, by any just construction of the Act of 1837, establish the facts of the death of Mr. Speed, the acceptor, and of the granting of letters of administration on his estate to Mr. Whelan. These facts it was incumbent upon the plaintiff to prove, by other competent and legal evidence, and having failed to do so, there was no sufficient proof of demand and non-payment of the bills sued on to bind the defendant.
Judgment reversed and procedendo ordered. 

121 of 196 DOCUMENTS 

NATHANIEL T. HATCH vs. WILLIAM PENDERGAST.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 251; 1860 Md. LEXIS 24 

April 18, 1860, Decided 

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

Trespass on the case, brought on the 1st of August 1856, by the appellee against the appellant, who was the clerk of the Lexington market, to recover damages for depriving the plaintiff, with force and violence, of a street stand on Paca street in said market, and putting another party in possession thereof, which said stand, the plaintiff claimed, had been rented by him from Baltimore city, from the 1st of May 1856, to the 1st of May 1857. The defendant pleaded that the plaintiff was not entitled to the stand or stall, as alleged, and that he did not commit or do the wrong alleged.

Exception. The evidence by several witnesses on the part of the plaintiff was that, his wife had occupied a stall in the Lexington market for eighteen or twenty years, and the space thus occupied was the same described in the following certificates, offered in evidence by the plaintiff:

"Received of William Pendergast five dollars in full for street stand on Paca street, in rear of ----- stall. Rent of stall No. 12, Lexington market, due the first day of May 1855, $ 5. (Signed.) THOMAS E. BYUS, Clerk." On the back whereof is this endorsement: "I hereby [**2]  transfer all my right to the within stall to Thos. Pendergast: (Signed,) William Pendergast. Approved May 25th, 1855: THOS. E. BYUS, Clerk Lexington market."

"Received of Wm. Pendergast five dollars in full for street stand in Paca St. Rent of stall No.     Lexington market, due the first day of May 1856, $ 5. (Signed,) NATH. T. HATCH, Clerk."

It was further proved that, in June 1856, the defendant, with the aid of a police officer, and against the remonstrances of Mrs. Pendergast, removed from the space occupied by her, some chickens and strawberries she had for sale, and drew them towards the middle of the street at the end of her table, and put one Daniel Little in possession of the space thus taken from her.

The defendant then offered in evidence the Ordinance No. 26 of 1850, from the Revised Ordinances of that year, and the following certificates, with the endorsements thereon:

"Received of Thomas Kirby five dollars in full for street stand on Paca street, rear of Mrs. Pendergast. Rent of stall No.     Lexington market, due the first day of May 1855, $ 5. (Signed,) THOMAS E. BYUS, Clerk." On the back whereof is this endorsement: "Balto., Oct. 15th, 1855,  [**3]  I hereby transfer all my right to the within stall to Danl. Little: (Signed,) Thomas Kirby. Approved: THOS E. BYUS, Clerk Lexington market."

"Received of Daniel Little five dollars in full for street stand on Paca street, rear of Mrs. Pendergast. Rent of stall No. 1, Lexington market, due the first day of May 1856, $ 5. (Signed,) NATHL. T. HATCH, Clerk.

Further evidence was offered on the part of the defendant that the space from which the articles of Mrs. Pendergast were removed, was embraced in the stand rented to Kirby and Little, under the above certificates, that Kirby had entered into possession thereof, and quietly used and employed it as his stall until his assignment to Little; that Little, under this assignment, in like manner, quietly used it for some time, but, on returning to take possession thereof, after recovery from sickness, he found the space which had been claimed and used by him as his stand, under said assignment and his certificate, occupied by Mrs. Pendergast with her articles, and that he applied to the defendant, who was clerk of the market, to remove them, and he did so, with the aid of a police officer. It was further proved that none of the street [**4]  stalls or stands in the Lexington market have any prescribed limits by marks or boundaries on the pavement. The defendant then asked the following instructions to the jury:

1st. That the certificate offered in evidence by the plaintiff, even if the jury should find it, gave to the plaintiff no title or right of possession to the stall mentioned in it.

2nd. If the jury find from the evidence, that the local limits of the stall mentioned in the said certificate, did not extend to that part of the street from which the chickens and strawberries were removed, as stated by the witnesses, and that they were taken from the stall No. 1, within the local limits of that stall as held by Kirby, and afterwards by Little, under their respective certificates, as given in evidence, then the plaintiff is not entitled to recover.

3rd. If the jury find the facts stated in the defendant's prayers, and further find that the defendant, in what he did in removing the said chickens and strawberries from the said space or stand, (if the jury shall find from the evidence that he did remove them from said place,) was actuated by an honest desire of faithfully performing what he regarded as a [**5]  public duty, in his character of clerk of the market, and not from any disposition to oppress, or abuse his authority, then the plaintiff is not entitled to recover in this action.

The court (MARSHALL, J.) rejected these prayers, and gave to the jury this instruction: "If the jury believe, from the evidence in the cause, that the plaintiff paid the rent and received the certificate of renting, from the clerk of the market, required by law, for a particular stall in the market spoken of in the evidence, and that the plaintiff, or his agent, was put in possession of said stall, so rented, at the time spoken of in the evidence, and was using the same lawfully, and that the market master interfered with the plaintiff, or his agent or servant, in the said possession and use of the said stall, and removed from the same certain property of the plaintiff, forcibly and against the consent of the said plaintiff, or his agent, then the plaintiff is entitled to recover such damages as they may think the plaintiff has suffered, in such interference with his exercise of his rights and property."

The defendant excepted to the rejection of his prayers and to the instruction granted by the [**6]  court, and the verdict and judgment being against him for $ 150 damages, with interest and costs, he appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

An ordinance regulating markets, provides for licenses for stalls or stands to be issued, on payment therefor of five dollars, but, to prevent loss to the city, by failure of persons to obtain licenses, it further provides that in that contingency, the party may be fined, and also requires the market clerk to collect the license money due by the granting of the certificates, and to pay the same over to the register. HELD:

1st. That the payment of the license fee confers on the party the right to use the stand or stall whether a license be obtained or not, but mere payment of rent for a stand, without reference to the license fee, does not vest title to the stand.

2nd. A paper in the form of a receipt, signed by the market clerk, stating that he had received five dollars for a specified stand, is to be construed as a certificate of payment of the required license fee for the use of the stand.

Title to market-stands, the mode of renting which is provided for by ordinance, cannot be acquired by possession; every seller must be considered as holding his stand by contract with the city, subject to the market regulations, and not adversely to its authority.

If difficulty arises between the holders of certificates for contiguous stands, the limits of which are not defined on the pavement, it is the duty of the market clerk to interpose and determine their respective rights, and, if necessary, to call the police to his aid in preserving order and peace in the market.

Whatever effect a man's motives may have on the question of damages, they do not determine the aggrieved party's right to recover.

An instruction, which leaves to the jury to find whether the plaintiff had received a certificate as required by law, and was using the stand lawfully, is erroneous, because these were matters which the court only could determine.  

COUNSEL:
A. Stirling, Jr., for the appellant argued:

1st. That the certificates offered by the plaintiff, vested no title in him to the stand or stall in the market therein mentioned. By ordinance No. 26, of 1850, secs. 41, 42 and 44, a license must be issued with the approval of the Mayor, to entitle any one to the use or occcupancy of a market stall, and if no license is obtained, the party attempting to use or occupy any such stall is liable to a fine, and the market-master or clerk is required to remove and drive off every person using or occupying any stall, bench or stand, in any of the markets, contrary to the true intent and meaning of this ordinance. These certificates are not the licenses required by this ordinance, and the appellee, having failed to obtain a license, has not complied with the requirements of the law, and was properly removed by the defendant. The appellant's first prayer should, therefore, have been granted.

2nd. In rejecting the appellant's second prayer, the court gave full effect to the certificates [**7]  of the plaintiff, while it took from the jury the consideration of the certificates of Kirby and Little which were entitled to, at least, equal weight, and it also took from the jury the consideration of the evidence, that Kirby and Little had at one time occupied the space claimed by the plaintiff, and from which the goods had been moved.

3rd. The court erred in rejecting the second and third prayers, because if the certificates gave any right to the plaintiff, it was not a right to any particular space on the street, as there were no boundaries to the street stands, and from the nature of the tenancy no continuous use for twenty years or less could give any such right. The clerk of the market had a right to judge of the space occupied, and to apportion it between the parties claiming under these certificates, and the defendant, if acting bona fide, with a desire to discharge what he thought a public duty as clerk of the market, under the provisions of this ordinance, is not liable.

4th. The court's instruction is wrong, for the reasons already stated, and also because it leaves to the jury to say, what "certificate was required by law" as title to the stall, and leaves [**8]  them to consider the fact of continuous possession as evidence of title, and also to find that when the plaintiff was put into possession, at the time spoken of in evidence, he had the proper certificate, of which there was no evidence. Besides this, it leaves to the jury a question of law, viz: whether the certificate was such a one as the ordinance required or not. It is for the court to construe all written contracts, and such a question as the construction of this ordinance, and whether these certificates conformed thereto, could not properly be left to the jury.

John Stewart, for the appellee, argued:

1st. That the certificates offered in evidence, did vest title in the plaintiff to the stall or stand mentioned in them. Sec. 41, of the ordinance of 1850, No. 26, requires the clerk of the market, whenever he shall rent, or hire out any stall, stand, shamble or bench, to give to the person or persons obtaining the same, a certificate thereof, which shall specify the terms of the tenure and the number or other description of the stall, stand, shamble or bench, and then if the Mayor shall approve of the terms of said certificate, he shall grant to the person holding the [**9]  same a license for the stall, stand, &c., for one year and no longer, and such license shall be transferable by endorsement, &c. Sec. 42, requires the clerk to collect the amount of the license money due by the granting of said certificates and pay the same over to the register. The license itself is but a matter of form; it is the payment of the license fee which is paid when the certificates are granted, and of which payment these certificates are evidence, which confers on the party the right to use the stand or stall. The license itself being but a matter of form has been dispensed with, and these certificates have been the only evidences of right to these stalls or stands which have ever been used, and the defendant, himself, has acted under this construction of the law. There was, therefore, no error in rejecting his first prayer.

2nd. That the court was right in rejecting the second prayer, because, otherwise more weight would have been given to the certificates of Little than to those of the plaintiff, if the jury should have found that the certificates on both sides covered the same space, and, further, because the granting of such prayer would have justified the market-master,  [**10]  in the use of force and violence in the ejection of the plaintiff from the space in question.

3rd. The court was also right in rejecting the third prayer, because it treated the defendant as having the right to act in a judicial capacity. It allows the defendant to be judge, jury, witness and sheriff,--to decide title--to put one party out and another party in where both hold by the same title. It moreover goes into the inquiry as to motives, and allows a good motive to so far justify a wrongful act, as to bar the right of action therefor.

4th. The court's instruction was also correct, because the tenure of the plaintiff was by virtue of the ordinance which was read by the defendant, as evidence to the jury, upon which therefore they had a perfect right to pass.  

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

OPINIONBY:
TUCK 

OPINION:

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

 [*258]  removing his fruits, and other articles, from a street-stand in the Lexington market, in the city of Baltimore; the defendant, at the time, being the clerk of the market, and having authority, under the ordinances [**11]  of the city, to remove the party if he was not entitled to the use of the stand.
There was evidence to show that Pendergast, a huckster, had occupied a stand for eighteen or twenty years, and he produced at the trial certificates that he had paid for stand No. 12, for the years from May 1853 to May 1856, and from May 1856 to May 1857, the last of which was given by Hatch, as clerk of the market; the acts complained of having occurred in June 1856. There was also evidence that one Little held stand No. 1, in the rear of Pendergast's, under like certificates from the market clerks, and that the articles were removed from his stand, and not from that of the plaintiff. Whether this was true or not was to be ascertained by the jury, from the conflicting evidence in the cause; the uncertainty arising, as we suppose, not from any want of confidence in the witnesses, but of definiteness as to the local limits of these stands, which, as the record shows, were not marked or bounded on the pavement.
The appellee claimed the use of the particular place as within the stand which the nar. avers he had rented from the city of Baltimore: the appellant, in defence, relied upon the ordinance regulating [**12]  markets, and the authority thereby conferred on the clerks of markets; Rev. Ord., 1850, No. 26. Hence we see that the plaintiff, to recover, must show his right to occupy the locus in quo, and, for that purpose, reliance is placed upon the certificate granted by the appellant to the appellee in May 1856, and the use of the stand for eighteen or twenty years previously to the acts complained of.
Upon the claim by possession, we may remark, that title to a market stand cannot be acquired in that way. The ordinance provides the mode of renting such stands, and expressly authorises and directs the clerks, "to remove and drive off every person using or occupying any stall, bench or stand, in any of the markets, contrary to the true intent and meaning thereof," Sec. 44. Every seller must be considered as holding 

 [*259]  his stand by contract with the city, subject to the market regulations, and not adversely to its authority.
The first prayer tendered by the defendant, and refused, asserts that the certificate offered by the plaintiff did not vest in him a title to the stand therein mentioned. The solution of this proposition depends on the interpretation of the ordinance, [**13]  and the character we are to give the paper. The 41st section, provides for licenses to be issued with the approval of the Mayor, on payment therefor of five dollars: but, to prevent loss to the city by failure of persons to obtain licenses, the 42nd section provides that, in that contingency, the party may be punished by fine, and also requires the clerk to collect the license money due by the granting of the certificates, and to pay the same over to the register. Upon a reasonable construction of these sections, we are of opinion, that the payment of the license fee confers on the party a right to use the stand or stall, whether a license be obtained or not. If, therefore, the paper in question was a certificate of payment of the license fee of five dollars for the use of the stand, the prayer was properly refused. If, however, it was a mere receipt for the rent, and the license money was not paid, it did not vest title to the stand, and the prayer ought to have been granted. From its phraseology we suppose the first construction to be the proper one, and affirm the ruling on the first prayer.
We do not perceive any valid objection to the second prayer. It merely submitted to the [**14]  jury to find the extent of pavement to which the plaintiff was entitled under his certificate for stand No. 12. He could not complain of the removal of his goods from the stand of another person, and whether this was done or not, was one of the questions which the jury could alone decide. There were no local limits of the stands by marks and bounds, but it does not follow that their extent was incapable of ascertainment by the clerk. The plaintiff, as well as that officer, must have known how much stand No. 12, was intended to embrace; and the same was the case as to Little's stand, and if difficulty arose between these persons, it was the duty of the clerk to interfere 

 [*260]  and determine their respective rights under the certificates, and, if necessary, to call the police to his aid in preserving order and peace in the market. The reasonableness of such a power is so obvious from the scope and policy of market regulations, that the proper officer should be sustained in the exercise of his functions. If the jury had found the facts stated in this prayer, the plaintiff ought not to have recovered, and it was therefore erroneously refused.
The defendant cannot complain of the [**15]  rejection of his third prayer. Whatever effect a man's motives may have on the question of damages, they do not determine the aggrieved party's right to recover.
The court's instruction, as given, is liable to the objection that it left the jury to find whether the plaintiff had received a certificate as required by law, and was using the stand lawfully, which the court only could determine. It also assumed, (contrary to the views expressed in disposing of the first prayer,) that the payment of rent, without reference to the license fee, gave the plaintiff title to the stand.
The exception of the defendant is sustained as to the ruling on the second prayer, and the instruction given by the court.
Judgment reversed and procedendo ordered. 

122 of 196 DOCUMENTS 

HUGH GELSTON vs. WM. RULLMAN, GEO. D. VOLKMAR and GEO. RHINEHARDT.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 260; 1860 Md. LEXIS 25 

April 18, 1860, Decided 

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

The bill in this case filed on the 26th of May 1856, by the appellant against the appellees, alleges that the complainant, on the 24th of September 1853, rented certain parts of "Washington Hall," in the city of Baltimore, to Rullman, and on the 1st of April 1855, there being due him $ 1300 for rent, he issued a distress, and the effects distrained were replevied by Rullman, on the 12th of April 1855, who gave Volkmar and Rhinehardt, as sureties on the replevin bond; that on the said 12th of April 1855, Rullman executed to Volkmar and Rhinehardt the bill of sale filed with the bill of complainant and prayed to be taken as part thereof. The bill then charges that this bill of sale, though absolute on its face was intended merely as an indemnification to said sureties, Volkmar and Rhinehart, to save them harmless from their said suretyship, and was further intended between said parties to indemnify them and each of them from any other suretyship they might enter into on account of the said renting, and further that it was intended to operate as a deed of trust, the trust being that if said effects, so conveyed, should be sold, that [**2]  the proceeds should be held by the said Volkmar and Rhinehardt to abide the result of any replevin suits between your orator and said Rullman, and to apply such proceeds to extinguish any judgments obtained by your orator, as well as to satisfy the rent accruing after the date of such bill of sale.

The bill further states and charges that since the execution of said bill of sale, there accrued to the complainant for rent of said premises, due between the 1st of April 1855, and the 1st of March 1856, the sum of $ 1433.26, which is unpaid; that three different distresses were issued to collect the same, and that such process was suspended and hindered by as many replevins issued by Rullman, on all of which Volkmar became the surety; that on the 14th of May 1856, a sale of the effects so conveyed by the bill of sale was advertised to be made at auction, and at that sale the complainant became purchaser of certain movable property and fixtures, put by the tenant in said property, to the amount of $ 1201.61, which sum he has not paid, because he has various set-offs against the same, which the defendants have refused to allow, and that their mutual claims can only be settled by a court [**3]  of equity.

The bill then further charges that the defendants have advertised to sell his effects, so purchased by the complainant, the sale to take place on the 26th of May 1856, and after charging other matters, which need not be stated, prays for an injunction to prevent such sale, and that Rullman may be required to give security as provided for in his contract of renting, or the lease be declared void, and that the trust intended to be created by said bill of sale may be carried into effect through the interposition of a court of equity, and for general relief.

The bill was sworn to, but does not call for answers on oath. The bill of sale, a duly certified copy of which was filed as exhibit with the bill, is dated the 12th of April 1855, and purports to be executed "for and in consideration of the sum of $ 2000, lawful money of the United States, to" the grantor, "in hand paid by George D. Volkmar and George Rhinehardt, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged."

The defendants filed a joint and several answer, sworn to by each of them, in which Rullman says the bill of sale was not made in trust as alleged [**4]  in the bill, and that there were other and valid considerations for the conveyance than the suretyship mentioned; that the bill of sale is true and bona fide, as on its face is expressed, and the complainant has only imagined it was executed for the purposes and with the meaning and intent alleged by him in his bill. Volkmar and Rhinehardt positively say and declare that the bill of sale was not made for the purposes charged in the bill, but was made on the consideration and for the purposes set forth on its face, and that these respondents, Volkmar and Rhinehardt, made the payment to the said Rullman, of the said consideration therein named, and no indemnity was thought of, at the time of, or since, the execution of the said bill of sale, against loss because of the suretyship aforesaid, and such was not the consideration for making the said bill of sale.

On filing their answers, a motion to dissolve the injunction was made by the defendants, and testimony (which need not be stated) was taken on both sides The court (KREBS, J.) at the hearing of this motion, ordered the injunction to be dissolved, and accompanied his order with the following opinion:

"Relief is prayed by [**5]  the complainant in his bill, upon the ground that the bill of sale referred to in the proceedings, though absolute on its face, and given for a moneyed consideration, was, nevertheless, intended as a mortgage to indemnify the grantees against loss as sureties in replevin bonds, given by the defendant, Rullman, in suits brought by him to recover property distrained by the complainant for rent due to him by the said Rullman; and should, therefore, be regarded as in trust for him and enure to his benefit.

"This relief cannot be made available to the complainant, because, assuming that the bill of sale was intended as such indemnity, yet the complainant cannot by such parol proof contradict and vary the consideration of the bill of sale, and show that the consideration was different from that set out upon its face, and that it was designed to be a mortgage for such a purpose that it should enure to his benefit. The bill of sale is not impeached for fraud, nor is it alleged that, by accident or mistake, it is different from what the parties to it design. So far from this, the complainant sets it up as valid, and seeks to derive benefit from it by showing that the consideration for [**6]  it was not money, as its terms state, but was a trust of a certain character in which he is interested. The whole course of decisions, in this State, is against his right to do this by parol evidence, and no other is offered. The grantees in the bill of sale distinctly deny that it was intended as an indemnity, as alleged by the complainant, and insist that it was made for the consideration, in money, expressed upon its face. The grantor, Rullman, does so likewise. The opinion of the Court of Appeals in McElderry vs. Shipley, 2 Md. Rep., 35, has conclusively settled the rule as to the inadmissibility of parol proof for the purposes contemplated by the complainant in this case.

"Nor can this court grant him relief upon the ground assumed by him, that he has an equitable lien for his rent upon the movable effects referred to in the bill, because they were the same property upon which his several distresses were levied though in the hands of the grantees in the bill of sale. There is no equitable lien for rent, upon property taken under a distress to satisfy it and replevied. If replevied by the tenant, the landlord cannot assert any such lien against them in the hands of the tenant,  [**7]  or of his assignee in bankruptcy. Morris on Replevin, 170. Bradyll vs. Ball, 1 Brown's Ch. Rep., 428. This was a case in which the lien was claimed against the assignees in bankruptcy of the tenant, and it was decided that, even under such circumstances, the landlord had no lien. There is a large amount of testimony, in the record, relating to matters altogether irrelevant, in the opinion of the court, to the points upon which this motion is to be decided, and with the exception of the grounds of relief, above considered, and which were those chiefly relied on, at the hearing, in behalf of the complainant and against the motion to dissolve the injunction, I find in the proceedings no points entitled to consideration against the motion. I must, therefore, dissolve the injunction, but will require the costs to be paid by the respective parties, in such equitable manner as I shall hereafter by order designate."

From the order of dissolution the complainant appealed.  

DISPOSITION:
Order affirmed, with costs, and cause remanded.  

HEADNOTES:

An answer under oath, though the bill does not call for an answer on oath is evidence for the respondent at the hearing of a motion to dissolve an injunction; the Acts of 1852, ch. 133, and 1853, ch. 344, do not apply to motions to dissolve injunctions.

The testimony of one witness is not of itself sufficient to countervail the effect of a sworn answer; there must be two witnesses, or one with corroborating circumstances.

A landlord has no equitable lien for rent upon property taken under a distress and replevied by the tenant.  

COUNSEL:
Chas. F. Mayer, for the appellant, argued:

1st. The allegation is sustained, that the bill of sale was but a security, in the hands of Volkmar and Rhinehardt,  [**8]  for the rent demands, in regard to which they were replevin sureties. The testimony of Durham, and the circumstances of the case, one of which is the identity in date of the bill of sale and the first replevin, prove that such was the purpose of the bill of sale, however the answer may be construed to deny it. We are at liberty to prove such a purpose, and give such effect to the bill of sale, notwithstanding the absolute terms of the conveyance. 1 Md. Ch. Dec., 178, Clark vs. Levering. 3 Md. Ch. Dec., 167, Anderson vs. Tydings. 4 Gill, 355, Mayhew vs. Graham. 1 Gill, 412, Cole vs. Albers & Runge. 2 Gill, 393, Henderson vs. Mayhew. 6 Md. Rep., 52, Alderson vs. Ames & Day. 12 How., 139, Russell vs. Southard. 2 Gill, 106, Jones vs. Belt. 9 Ves., 283, East India Company vs. Donald. Greeley's Eq. Ev., 5. Besides this, the bill does not call for answers under oath, and, since the Acts of 1852, ch. 133, and 1853, ch. 344, the answers cannot be used as evidence, but, even if they could, and the old rule still applies, there is in this case the one witness, with pregnant circumstances, sufficient to overcome the denials of the answers.

2nd. But, even if that be not established as the [**9]  purpose of the bill of sale, it must necessarily be limited so to operate, for Volkmar and Rhinehardt are, upon the judgments recovered in the replevin suits, under an established obligation to return to Gelston the property replevied, embraced in the bill of sale, and, in part, purchased by Gelston. Therefore they can claim from him no payment for it, and the purchased property he may retain, to be applied for paying his rent claim. 1 Petersdorf's Abr., 198, 199, Title Action--Circuity of Action. 1 Md. Rep., 235, 236, Georges Creek Coal & Iron Co. vs. Detmold.

Wm. Pinkney Whyte, for the appellees:

The bill of sale contains the consideration of $ 2000, absolutely, and a copy of it is filed by the complainants. The answers of Rullman, Volkmar, and Rhinehardt, all deny that there was any other consideration for the bill of sale than that expressed upon its face. There is a vast amount of testimony in the record not necessary to be examined in relation to the point at issue. No fraud is alleged in the making of the bill of sale, nor is there any mistake or accident charged in the recital of the true consideration. The relief prayed for by the complainant is, that the bill of [**10]  sale was intended as a mortgage, to indemnify the sureties in the replevin suits, and should therefore be treated as for the benefit of the complainant.

1st. Under such an allegation, it is not possible for the complainant, by parol proof, to vary the consideration set forth in the bill of sale. The law of Maryland is too well settled to be now disturbed, that in a case like the present no parol evidence can be resorted to for the purpose of contradicting, adding to, or varying the terms of a written instrument. 2 Md. Rep., 35, McElderry vs. Shipley.

2nd. The ground that Rhinehardt and Volkmar are bound to return the property, replevied by them, by reason of an equitable lien, is equally untenable. There is no equitable lien for rent upon property taken under a distress to satisfy it and replevied. Morris on Replevin, 170. 1 Brown's Ch. Rep., 428, Bradyll vs. Ball.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*266]  BARTOL, J., delivered the opinion of this court.
After a careful examination of the record in this case, and a mature consideration of the several points presented in the argument of the appellant's counsel,  [**11]  we have discovered no ground for disturbing the order passed by the Circuit court, from which the appeal was taken.
The bill of sale, from Rullman to Volkmar and Rhinehardt, is on its face an absolute conveyance, "for the consideration of two thousand dollars lawful money paid" by the grantees to the grantor; in the bill of complaint, it is alleged, that it was in fact designed as a mortgage or security to indemnify the grantees from loss as sureties upon the replevin bonds of Rullman; and the bill of complaint further alleges that it was "intended to operate as a deed of trust; the trust being, that if said effects so conveyed should be sold, that 

 [*267]  the proceeds should be held by said Volkmar and Rhinehardt, to abide the result of any replevin suits between your orator and said Rullman, and to apply such proceeds to extinguish any judgments obtained by your orator, as well as to satisfy the rent accruing after the date of said bill of sale." We think these allegations are not sustained by the proof in the record; even if we were permitted to consider the parol proof offered in their support, in the absence of any charge of fraud or mistake in the making of the bill [**12]  of sale. They are denied in the answer of Volkmar and Rhinehardt, the grantees, which distinctly avers that the bill of sale was made "on the consideration set forth on its face," that the respondents "made the payment to the said Rullman of the said consideration therein named, and no indemnity was thought of, at the time of, or since the execution of the said bill of sale, against loss because of the suretyship aforesaid, and such was not the consideration for making the bill of sale."
This answer being verified by oath, is evidence for the respondents. The objection that the bill does not call for the answers to be made under oath, does not avail on this appeal. We have decided at the present term that the Acts of 1852 ch. 133 and 1853 ch. 344, do not apply to motions to dissolve an injunction. Bouldin vs. Mayor & C. C. of Baltimore, Ante 18. To contradict the answer and to support the allegations of the bill, the complainant produced one witness, who proved that the respondents admitted in his presence, that the bill of sale was executed as indemnity to the grantees as sureties of Rullman on these replevin bonds. Upon well established principles of equity, this testimony alone [**13]  is not sufficient to countervail the effect of the sworn answer in the cause. It appears, by the record, that one of the replevin bonds was executed on the 12th day of April 1855, and the bill of sale bears date on the same day. This fact has been relied upon by the appellant as a corroborating circumstance, sufficient, when combined with the testimony of the witness, to counterbalance the proof furnished by the answer. We do not think it is entitled to the weight claimed for it, and are of opinion, upon the whole proof in the case, that the allegations 

 [*268]  of the bill, with reference to the consideration of the bill of sale, have not been supported.
We concur in the opinion expressed by the judge of the Circuit court, that the complainant is not entitled to any equitable lien upon the property taken under distress for rent and replevied. Morris on Replevin, 170. Bradyll vs. Ball. 1 Bro. Ch. Cases 428. And we think the injunction was properly dissolved.
Order affirmed, with costs, and cause remanded. 

123 of 196 DOCUMENTS 

WILLIAM T. WALTERS and CHARLES HARVEY vs. SAMUEL BROWN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 285; 1860 Md. LEXIS 27 

April 18, 1860, Decided 

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

Assumpsit brought on the 4th of May 1858, by the appellants, as endorsees, against the appellee, as endorser, of a promisory note for $ 431.84, drawn by John F. McJilton and endorsed by Edward Spedden, Samuel Brown, and W. T. Walters & Co. The note is dated "Baltimore, Feb. 1857," payable at four months, to blank order. The plaintiffs, who constitute the firm of W. T. Walters & Co., placed the note in the Farmers and Planters Bank of Baltimore for collection, and, not being paid at maturity, it was duly protested.

The facts of the case are fully stated in the opinion of this court. In the course of the trial, the plaintiffs excepted to the ruling of the court below (MARSHALL, J.) in refusing their prayers, and granting the prayer of the defendant, and the verdict and judgment being in favor of the defendant, the plaintiffs appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

As a general rule, where the endorser and the party required to give him notice reside in the same town or city, the notice must be given to him personally, or at his domicil or place of business, and notice through the Post Office will not be sufficient, unless proved to have actually reached him in due time.

But, in a large commercial city, where the parties live within the limits of a penny-post, or letter-carrier, whose duty it is to carry letters from the Post Office daily, and the party entitled to notice is accustomed to receive his letters from such carrier, notice put into the Post Office soon enough for the party to receive it in due time, is sufficient.  

COUNSEL:
Wm. A. Fisher, for the appellants:

As the defendant was supplied by the penny-post, a notice so sent was sufficient. It is laid down in Byles on Bills, 219, that a notice sent by the two-penny-post is sufficient, where the parties reside in the same place.  [**2]  And in Smith vs. Mullett, 2 Camp., 208, the same point is settled by Lord Ellenborough. In the case of Bell vs. The Hagerstown Bank, 7 Gill, 225, the court, in speaking of the proper notice of protest, say: "As in large commercial towns it is now the uniform practice to reach the party to be affected by the notice through the Post Office, where the parties both reside within the limits of the penny-postman." The court here seems to treat the sufficiency of such notice as an established principle of the law-merchant, and as conclusive, at any rate, in the absence of proof of custom requiring any other mode of delivery. The propriety of sending such a notice through the Post Office, where it appears that the party to be charged is served by the penny-post, is not only established by a current of authority abroad, and certainly in Maryland, but would seem to rest upon the soundest principles of justice, and to be perfectly consistent with even the severest construction of the law requiring notice to the endorser. The position assumed by the appellee does not conflict with the correctness of our views, for none of the authorities upon which he relies, go further than to maintain "that [**3]  where the parties reside in the same place, notice must be left at the residence or place of business, or reach him personally." And, if that object be accomplished, the object of the law is met, even in the view taken by the other side. This object the penny-post accomplishes, delivering the notices twice a day at the residences and places of business with a degree of certainty quite equal to that of any other mode of delivery. The system of delivery by the penny-post is one of comparatively recent date, and no authorities can be properly appealed to as negativing our views, where it does not appear that the decisions were made in reference to the penny-post, or where there is no proof that the party is regularly supplied by the penny-post. The authorities cited by the appellee in 3 Ala., 3 McLean, 8 Foster, 3 Kernan and 6 How., will each be found obnoxious to one or both objections; and in no one of them was there any evidence that the party to be charged was supplied by the penny-post. In this case the evidence is explicit, by the notary, that he placed the notice, mentioned in the protest, in the Post Office, on the afternoon of the day when the note became due, and the carrier [**4]  proved that, in that event, the notice must have been taken by him the next morning to the residence of the defendant.

Geo. H. Williams, for the appellees:

The plaintiffs (the holders) and the defendant being proved to be residents of Baltimore city, the only sufficient notice to bind the defendant would be by personal service of the notice of dishonor, or by leaving it at his place of residence or business, and, under such circumstances, depositing a notice in Post Office will not suffice. Where the endorser, and the party from whom he is to receive notice, reside in the same place, such service of notice is required, and no case can be found, even in England, where a penny-post has been held the proper means of communicating notice, save, only, in the city of London, where it was adopted by usage. In this country the rule is universal--the notice must be personal, or left at the place of business or the residence of the party to be charged, where both reside in the same place. 6 How., 248, Bowling vs. Harrison. 3 McLean, 96, Hyslop vs. Jones. Ibid., 583, Hill vs. Norvell. 3 Ala., 34, Foster vs. McDonald. 8 Foster, 302, Manchester Bank vs. Fellows. 3 Kernan, 549, Van Vechten [**5]  vs. Pruyn. 4 Sneed, 390, Davis vs. Bank of Tennessee. 3 Camp., 362, Beveridge vs. Burgess. The remark in Bell vs. Hagerstown Bank, 7 Gill, 225, that in large commercial cities notice may be given through the penny-post, was entirely outside of the case there before the court, and cannot be regarded as settling the law for this State on this subject.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*288]  ECCLESTON, J., delivered the opinion of this court:
This action of assumpsit was instituted in the Court of Common Pleas for Baltimore city, upon a promissory note for four hundred and thirty-one dollars and eighty-four cents, drawn by John F. McJilton, and indorsed by Edward Spedden, Samuel Brown and W. T. Walters & Co. The note is dated, "Balto., February 1857," and all the parties to the same reside in Baltimore.
The defendant pleaded "that he did not promise as alleged:" to which the plaintiffs joined issue.

 [*289]  The verdict and judgment being in favor of the defendant the plaintiffs appealed.
A denial of the plaintiffs' right to recover is based upon the absence of sufficient proof of due notice to the defendant,  [**6]  of the non-payment of the note; there being no dispute in regard to the making, or to the regular indorsement thereof.
It was duly protested; and the notary certified that on the same day he addressed written notices to the indorsers, informing them the note had not been paid, payment thereof having been demanded and refused, and that they would be held responsible for the payment thereof; that notices for the first and third indorsers he left at their places of business, and notice for Samuel Brown, he enclosed him, and put in the Baltimore Post Office.
The partnership of the plaintiffs was proved; they then examined, as a witness, Wilson M. Carey, a notary public, duly commissioned in and for the city of Baltimore. He testified that after the said note had been handed to him for protest as such notary, he went to inquire, he thought personally and not by one of his clerks, at the places of business of the plaintiffs, and also of the maker of said note, as to the residence or place of business of the defendant; that he did not find the plaintiffs or maker to respond to such inquiry and not knowing himself where the defendant lived or had his place of business, he deposited a notice [**7]  of the dishonor of said note in the Baltimore Post Office, directed to Samuel Brown, Baltimore. The witness said he knew the place of business of Edward Spedden, which was in North street near Fayette street, and he looked in the directory and found the names of several persons therein named Samuel Brown; and being asked why he did not call upon the persons named Samuel Brown, as therein indicated, said he had no time to call upon them, he had twelve or fifteen notes to protest on that day.
The plaintiffs' witness, Gehrman, testified "that he had been for the last six years a letter carrier in the Baltimore Post Office, and that all letters which came into the penny-post of the Post Office for distribution by the penny-post of the 

 [*290]  office, and were directed to Samuel Brown, Baltimore, were delivered, by witness to the defendant as the only Samuel Brown who was served by the penny-post of said office; that said defendant was a well known citizen and lived on Eutaw street in said city; and that letters dropped in the office in the morning, were, in the course of business, delivered to him in the evening; and letters dropped in the evening were delivered the next morning.  [**8]  "
The defendant offered no evidence, but asked the court "to instruct the jury, that there is no sufficient evidence of notice to the defendant of the non-payment of the note for which this suit is brought," which instruction was granted.
The plaintiffs submitted the two following prayers, which were refused.
1st. The plaintiffs pray the court to instruct the jury, that if they shall find from the evidence that the promissory note offered in evidence was drawn by John F. McJilton, and endorsed by the defendant, and upon the day of the maturity of the said note it was not paid, and it was delivered by the Cashier of the Farmers and Planters Bank of Baltimore, to Wilson M. Carey, notary public, for protest, and that the said notary made, or caused to be made, diligent inquiry as to the residence of the defendant, and was unable to ascertain the same, and that on the same day he addressed a written notice to the defendant informing him of the demand upon the drawer and the non-payment of the note, and that the said defendant was held responsible for the payment of the same, as set out in the protest offered in evidence; and that he sealed and directed said notice to the defendant at [**9]  Baltimore, and deposited the same in the Baltimore Post Office; and if the jury shall further find from the evidence in the cause, the defendant was then a resident of the city of Baltimore, and that it was the constant and uniform practice of the penny-postman, attached to the Baltimore Post Office, to deliver at the residence of the defendant on the same day, or on the day succeeding, all letters deposited in said office directed to him, then there is sufficient evidence in the case to establish such notice to the defendant 

 [*291]  of the dishonor of the note as to enable the plaintiffs to recover in this action.
2nd. If the jury shall find from the evidence that the said note was drawn by John F. McJilton and indorsed by the defendant, and that upon the day of its maturity it was not paid, and that the same was delivered to the notary for protest, and that the said notary was not able to find, after reasonable inquiry, the residence or place of business of the defendant, and on the same day deposited the said notice, as set out in said protest, in the Baltimore Post Office, directed to the defendant at Baltimore; and if the jury shall further find that the defendant received [**10]  the said notice on the same day, or the day succeeding, then the plaintiffs are entitled to recover.
The important inquiry in this case is, whether the notice of non-payment of the note, sent to the defendant through the Baltimore Post Office, was sufficient to render him liable on the note?
It is a well settled general rule, that where the endorser and the party who is required to give him notice, reside in the same town or city, the notice must be given to him personally, or at his domicil, or place of business. And a letter containing the notice of the dishonor, put into the Post Office of the same town or city, directed to the endorser will not be a sufficient notice. If, however, it should be proved that the notice so put into the Post Office did actually reach the endorser, the notice will be sufficient.
Mr. Justice Story, in his work on Promissory Notes, section 322, states the rule on this subject. Then, in section 323, the learned author advances the doctrine that where in large towns or cities there is a letter carrier or penny-post, who carries letters daily from the Post Office, to the houses or places of business of the parties, who are accustomed to receive [**11]  their letters by him there, if the notice be left at the Post Office early enough to go by such letter carrier or penny-post to the party the same day he is entitled to notice, it will be deemed sufficient.
In a note to section 323, Judge Story quotes the language 

 [*292]  of Chitty on Bills, page 504, where it is said: "Notice of the dishonor of a bill sent by the two-penny-post is sufficient, where the parties live within its limits, whether near or at a distance from each other, but it must be proved that the letter, conveying the notice, was put into the receiving-house on the next day at such an hour, that, according to the course of the post, it would be delivered to the party to whom it is addressed, on the day when he was entitled to receive notice of the dishonor."
The doctrine announced by Judge Story, in the section last referred to, is also to be found in 3 Kent's Com., 107, (5th Ed.) The distinguished author there says: "Where the parties live in the same town, and within the district of the letter carrier, it is sufficient to give notice by letter through the Post Office. If there be no penny-post that goes to the quarter where the drawer lives, the notice [**12]  must be personal, or by special messenger sent to his dwelling-house or place of business, and the duty of the holder does not require him to give notice at any other place."
The language used by Mr. Justice Grier, in delivering the opinion of the Supreme Court, in Bowling vs. Harrison, 6 How. Rep. 258, has been referred to as inconsistent, and, indeed, in direct conflict with the doctrine herein before stated. It is true, the rule for giving notice, where the parties live in the same town or city, is said to require personal service, or service at the residence or place of business; and if the endorsers live at a distance, so that such a service would be inconvenient and expensive, the notice should be sent by mail to the nearest Post Office, or such other place as may have been designated by the party who is to receive it. It is then said: "This is, and has been, the daily practice and construction of the rule in question over the whole country, and the only one consonant with reason." But the language should be considered with reference to the case then before the court; and not as intended to express an opinion upon a state of facts not presented by the record. It appears [**13]  the defendant lived in Vicksburg, Mississippi. The plaintiff resided in Maryland, and had 

 [*293]  placed the note in the office of the Planters Bank at Vicksburg, for collection. Notice of the non-payment was put into the Post Office at the latter place. There was no evidence tending to show the existence of a penny-post. Neither was there any question presented, by the argument of counsel, or considered by the court, as to whether the notice through the Post Office would, or would not, have been sufficient, if there had been a penny-post.
In The Bank of Columbia vs. Lawrence, 1 Peters' S. C. Rep., 582, the court say: "When a party entitled to notice has, in the same city or town, a dwelling-house and counting-house, or place of business, within the compact part of such city or town, a notice delivered at either place is sufficient, and if his dwelling and place of business be within the district of a letter-carrier, a letter containing such notice, addressed to the party, and left at the Post Office, would also be sufficient." The court then add: "All these are usual and ordinary modes of communication, and such as afford reasonable ground for presuming that the notice [**14]  will be brought home to the party without unreasonable delay. So when the holder and endorser live in different post-towns, notice sent by the mail is sufficient, whether it reaches the endorser or not. And this for the same reason, that the mail being a usual channel of communication, notice sent by it is evidence of due diligence. And, for the sake of general convenience, it has been found necessary to enlarge the rule."
In Bell vs. The Hagerstown Bank, 7 Gill 216, after stating it to be necessary for personal notice to the endorser, or else that notice should be left at his residence or place of business, where the parties reside in the same place; the Court of Appeals then say: "Unless by the usage of a particular place, a different mode of notice is resorted to. As in large commercial towns, it is now the uniform practice to reach the party to be affected by the notice through the post-office, when the parties both reside within the limits of the penny-postman. 'But it must be shown to have been put in, time enough to be delivered before the expiration of the day following the dishonor.'"

 [*294]  The practice has been long established, of allowing notice [**15]  to be sent through the Post Office, where the parties reside in different places. And if it be proved that notice has been put into the office, soon enough for the party to receive the same in due time, according to the regular course of the mail, the notice will be sufficient, although it may never have been received. If so, there would seem to be no good reason why notice should not be considered equally sufficient, when sent through the post-office, in a large commercial city, where the parties live within the limits of a penny-post, or letter carrier, whose duty it is to carry letters from the Post Office daily, and the party entitled to notice, is accustomed to receive his letters from such carrier.
In this case the notice was put into the Baltimore Post Office the same day the note was protested. The letter carrier, who, in that character, for six years, had been connected with the Post Office, testified that all letters which came into the penny-post of that office, for distribution by the said letter carrier or penny-post, and were directed to Samuel Brown, Baltimore, were delivered to the defendant, as the only Samuel Brown who was served by the penny-post; that the defendant [**16]  was a well known citizen, living in Baltimore. And that, according to the regular course of business, the notice put into the Post Office the day of the protest of the note, should have reached him the day after, in the morning.
Believing that the notice sent through the Baltimore Post Office, under the circumstances of this case, was sufficient notice to the defendant, we think the instruction asked by him should not have been granted. The judgment, therefore, will be reversed.
Having thus decided the notice given to be sufficient, it is not necessary to inquire whether there was or was not error in refusing the plaintiffs' prayers.
Judgment reversed and procedendo ordered. 

124 of 196 DOCUMENTS 

THE MAYOR & CITY COUNCIL OF BALTIMORE vs. THE STATE, on the relation of the Board of Police of the City of Baltimore:--MAYOR & CITY COUNCIL OF BALTIMORE vs. CHARLES HOWARD and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 376; 1860 Md. LEXIS 31 

April 17, 1860, Decided 

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

The question involved in these cases, is the constitutionality of the Act of 1860, ch. 7, amending certain sections of the Code of Public Local Laws, relating to the police and general powers of the Mayor and City Council of Baltimore, and repealing other sections, relating to the police of said city, and the power of the Mayor and City Council to establish and regulate the same, and inserting in lieu thereof sections for the purpose of providing a permanent police for the city of Baltimore.

In the first case, the four commissioners appointed by the 4th section of this Act, and constituting the Board of Police of the city of Baltimore, filed, in the name of the State, their petitions in the court below, on the 10th of February 1860, in accordance with the provisions of the 12th section of said Act, praying the court to "issue the writ of mandamus to the Mayor and City Council of Baltimore, commanding and enjoining them, the said Mayor and City Council, immediately after the receipt thereof, and without delay, to furnish and allow to the Board of Police of the city of Baltimore, for the police now under its exclusive management [**2]  and control, as well the use of the fire alarm and police telegraph in said city, as of all the station houses, watch boxes, arms, accoutrements, and other accommodations and things, provided by the said Mayor and City Council of Baltimore for the use and service of the police created by it, as fully and to the same extent as the same, at the time of the passage of said Act, were or might be used by or for the said city police." To this petition an answer was filed by the Mayor and City Council of Baltimore, denying, upon various grounds, the constitutionality of this law, and to this answer a general demurrer was filed by the relators.

In the second case, a petition was filed on the 27th of February 1860, by the Mayor and City Council of Baltimore, praying, for the reasons therein stated, that this Act may be declared unconstitutional and void, and that the Commissioners therein named, and the Board of Police thereby intended to be created, may be restrained, prevented and prohibited, by a writ of mandamus, from exercising, or assuming to exercise, any of the powers, authority or jurisdiction intended to be thereby conferred on them, and that a rule may be laid upon said Commissioners [**3]  to show cause why such a writ of mandamus should not issue. The rule was laid, and the Commissioners in their answer showed cause, denying that the petitioners, upon the case made in their petition, have any right or title to the relief thereby prayed.

The provisions of this Act, and the grounds upon which it was alleged to be unconstitutional, are sufficiently stated in the opinion of the court below, the arguments of counsel and the opinions of this court. The case was argued in the court below, by William H. Norris and Reverdy Johnson for the relators, and by William Price and Jonathan Meredith for the Mayor and City Council, and the following opinion of that court was delivered by MARTIN, J.:

"The general question presented for my consideration in this case, is, whether the Act of the General Assembly of this State, passed at its late session, for the purpose of creating a permanent police for the city of Baltimore, is to be treated by the court as a valid exercise of legislative power. It is a question, not of expediency or policy, but of power, the magnitude of which has not been overstated. That it is a question in reference to which there may exist a conscientious [**4]  difference of opinion, must be admitted. This is manifest from the argument at the bar. It is not to be supposed that eminent counsel would, on so grave a question of constitutional law, espouse a principle, or advocate a doctrine, in the correctness of which they did not sincerely believe; and yet upon this question we find the leaders of the bar divided in opinion. On the one side it is said that the chartered rights of a large, prosperous city, have been invaded by a legislative enactment which has no warrant in the Constitution, and, upon the other side, it is contended that the General Assembly of the State, in re-arranging the police powers of the city, has only exercised that supervision and control which belonged to that body, by virtue of its controlling power over all the municipal corporations of the State. These conflicting claims and discordant opinions, can only be adjusted by the judicial tribunals of the State. I am aware of the importance of the question to be decided, and the opinion which I am about to pronounce is the result of a calm, dispassionate and deliberate examination of the whole subject.

"It is perfectly manifest that any right which the Mayor and [**5]  City Council of Baltimore may possess, to the exclusive exercise of the police powers of the city, must be derived either from a legislative grant or grants, or that right must be secured by the Constitution. The tenure by which those powers are held, must be either a legislative or a constitutional tenure; and the questions to be considered are: first, what is the scope and extent of the authority of the General Assembly over the Mayor and City Council, with respect to these police powers as statutory, delegated powers, irrespective of the nineteenth section of the fourth Article of the Constitution of the State? And, secondly, what is the operation and effect of that section as a restraining prohibition upon the general legislative power? These are the prominent questions upon which the whole controversy turns, and have been argued by the respective counsel with unsurpassed ability. It may be conceded that the city of Baltimore has been recognized by the existing Constitution as one of the territorial divisions of the State, occupying, politically, the rank and position of a county, and, as such, entitled to be represented in the General Assembly. But Baltimore is still a municipal [**6]  corporation, created by the government for political purposes, as counties, towns and villages are created, and, as such, invested with subordinate, local, delegated, legislative powers, to be exercised for the promotion of the public good, subject always to the supervision and control of the legislative power as the parent power, (9 G. & J., 397.) All the power of the corporation emanates from the State; and when a tax is imposed by the Mayor and City Council, or a police power is exerted, it is the action of the State operating through the instrumentality of its municipal agent.

"The city of Baltimore is a political community, but not a distinct community. The city is an integral part of the State, or a portion of the body politic--one of the branches of the government, (8 Md. Rep., 102,) and constituted a political agent by the State, for the more efficient and convenient exercise of the police powers of the government; and it is a clear proposition that the power to employ any agent for these political objects, includes the power to substitute one municipal agent for another. In the case of a municipal corporation, the visitorial power resides in the State, and the State has [**7]  the exclusive right, as the trustee of the public interest, to inspect, regulate, control and direct the corporation and its funds and franchises, because the whole interest and franchises are conferred for the public use and advantage. Such corporations are always governed according to the law of the land, (2 Kent, 353; 9 G. & J., 401.) The power in the Legislature to repeal or modify the local legislative powers delegated to these municipal corporations, involves no violation of the obligation of a contract within the purview of the tenth section of the first Article of the Constitution of the United States, for in these corporations the State is the only party, and the corporate authorities are merely trustees for the public, (2 Kent, 358.) There is no vested right to be disturbed, for the Mayor and City Council can have, as against the State, no vested right to retain, undiminished, those local powers of legislation antecedently delegated by the charter and its supplements, because those powers were conferred by the State upon the city authorities, as its municipal agent created for purposes connected with the administration of the government.

"Besides, it is a great mistake [**8]  to suppose that the absence or the existence of authority in the Legislature to repeal or modify the police powers which may have been, from time to time, delegated to the Mayor and City Council, depends upon the fact that the city had been chartered or incorporated. The incorporating Act neither gives nor prevents this control. The controlling power of the Legislature stands on the proposition that this municipal corporation is an instrument of the State, created for its own purposes. In the case of Dartmouth College vs. Woodward, 4 Wheat., 638, Mr. Chief Justice Marshall says: 'From the fact, then, that a charter of incorporation has been granted, nothing can be inferred which changes the character of the institution, or transfers to the government any new power over it. The character of civil institutions does not grow out of their incorporation, but out of the manner in which they are formed, and the objects for which they are created. The right to change them is not founded on their being incorporated, but on their being the instruments of government, created for its purposes. The same institutions, created for the same objects, though not incorporated, would be public institutions,  [**9]  and, of course, controllable by the Legislature. The incorporating Act neither gives nor prevents this control.'

"It will be found that the principles thus stated are supported by an unbroken series of adjudications which it is impossible to resist. In the case of the State vs. The Balto. & Ohio Railroad Co., 12 G. & J., 436, Judge Stephen, speaking for the Court of Appeals, uses this language:

"'Washington county is an integral part of the State, or portion of the body politic, and the money, if received by her, would belong to her as public property in her public political capacity, to be applied exclusively to the public use. As a county, she stands to the State in the relation of a child to a parent, subject, in all respects, to its jurisdiction and power, as well as entitled to the benefits of its fostering care and protection. As a member of the political family she has a right to participate in the legislative councils of the country; but the will of the majority, when expressed according to the forms of the Constitution, is binding and obligatory upon her, and to that will, as the rule of her conduct, she is bound to submit with becoming deference and respect.'

"I [**10]  quote the opinion of Mr. Chief Justice Taney in the same case, as reported in 3 How., 550. In speaking of the Commissioners of Washington county, he says:

"'As relates to the Commissioners, they are not named in the law, nor were they in any shape parties to the contract supposed to have been made, nor is the money declared to be for their use. They are a corporate body it is true, and the members who compose it are chosen by the people of the county. But, like similar corporations in every other county in the State, it is created for the purpose of government, and clothed with certain defined and limited powers to enable it to perform those public duties which, according to the law and usages of the State, are always entrusted to local county tribunals. But however chosen, their powers and duties depend on the will of the Legislature, and are modified and changed, and the manner of their appointment regulated at the pleasure of the State.'

In the case of Dartmouth College vs. Woodward, 4 Wheat., Mr. Justice Story, at page 671, uses this strong language:

"'When the corporation is said at the bar to be public, it is not merely meant that the whole community may be the [**11]  proper objects of the bounty, but that the government have the sole right, as trustees of the public interests, to regulate, control and direct, the corporation and its funds and its franchises at its own good will and pleasure. Now such authority does not exist in the government, except where the corporation is in the strictest sense public; that is, where its whole interests and franchises are the exclusive property and domain of the government itself.'

"The same principle is asserted by Mr. Justice Washington at page 660; and in the case of the Regents of the University of Maryland vs. Williams, 9 G. & J., 397, the Court of Appeals say: 'A public corporation is one that is created for political purposes, with political powers, to be exercised for purposes connected with the public good in the administration of the civil government; an instrument of the government, subject to the control of the Legislature, and its members officers of the government for the administration or discharge of public duties, as in the case of cities, towns,' &c.

"In speaking of East Hartford as a municipal corporation, Mr. Justice Woodbury, at page 534, 10 How., uses this clear and strong language:  [**12]  

"'The grantees likewise, the towns, being mere organizations for political purposes, were liable to have their public powers, rights and duties modified or abolished at any moment by the Legislature. They are incorporated for public and not private objects. They are allowed to hold privileges or property only for public purposes. The members are not shareholders nor joint partners in any corporate estate which they can sell, or which can be attached and levied on for their debts. Hence, generally, the doings between them and the Legislature are in the nature of legislation rather than compact, and subject to all the legislative conditions just named, and therefore to be considered as not violated by subsequent legislative changes. It is hardly possible to conceive the grounds on which a different result could be vindicated, without destroying all legislative sovereignty and checking most legislative improvements and amendments, as well as supervision over its subordinate public bodies. Thus, one of the highest attributes and duties of a Legislature is to regulate public matters with all public bodies, no less than the community from time to time, in the manner which the public [**13]  welfare may appear to demand.'

"It is not necessary to vindicate the position assumed on this branch of the case by the counsel for the relators, to maintain that the Legislature is invested with the authority to annul or abolish the charter of the city. The franchise of governing the city through the instrumentality of a Mayor and City Council, is, I think, secured and recognized by the Constitution. But this franchise of passing ordinances and exercising local legislative powers for the government of the municipality is subject to the control of the sovereign power of the State. It is apparent from the passage already quoted from the opinion of Mr. Chief Justice Marshall, at page 638 of 4 Wheat., that the incorporating Act neither gives nor prevents this control. I consider, then, that the authority of the Legislature to repeal the police powers heretofore delegated to the Mayor and City Council, and to invest those powers in the Board of Commissioners, created by the bill, is clearly established by the cases to which I have referred, unless that authority has been restrained or prohibited by the 19th section of the 4th Article of the Constitution.

"This presents, for my [**14]  consideration, the proposition upon which it has been said the counsel for the respondents mainly rely. It is this: That the whole ground covered by the bill, is already pre-occupied by the Constitution. That to make room for the bill, it will be necessary to displace the entire arrangement made of the same subject by the Constitution itself. That by the very terms of the Act, the legislative police is made to extinguish the constitutional police of the city of Baltimore, which cannot be done unless the law is held to be superior to the Constitution. In considering this question, it is necessary to inquire into the nature and extent of the power of the General Assembly of the State. By the 1st section of the 3rd Article of the Constitution, it is declared that the Legislature shall consist of two distinct branches, a Senate and a House of Delegates, which shall be styled 'The General Assembly of Maryland.' There is no grant of power to the Legislature, because none was necessary. This Article of the Constitution is employed with the organization of the Legislature, the authority of its separate branches, and the privileges of its members. The framers of that instrument, and the people [**15]  who adopted it, assumed that all power was inherent in the Legislature, as the representatives of the people, unless it was prohibited by the Constitution or the Bill of Rights, or was vested in some other department of the government, ( Pratt vs. Allen, 13 Conn., 125.)

"When the inquiry is, whether a particular power is possessed by the Legislature, it is answered by ascertaining, not whether the power has been granted, but whether it has been prohibited. The power of the General Government, in this respect, is entirely unlike the State power. Congress, it is true, is supreme within the sphere of its powers, but it has no powers except such as are enumerated, defined and specifically granted; and so anxious were the framers of the Constitution of the United States to guard against the necessity of resorting to implied or constructive powers, that after granting to Congress specifically certain powers carefully enumerated in various subdivisions, it confers expressly the power to make all laws that may be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States, or any department [**16]  or officer thereof; and it is clear that when a power is used by Congress as an auxiliary power necessary and proper to execute some one of the specifically granted powers, it does not stand merely upon the ground of implication, but is covered by this express grant.

"I do not mean, of course, to say, that the power to pass any law which might be necessary and proper to carry into execution any one of the granted powers, could not be implied in the absence of an express grant, but that this clause was inserted, ex industria, to obviate the necessity of resorting to constructive powers, and an examination of the Constitution of the United States and the Constitution of the State, will show a disposition on the part of the framers of those instruments, and the people who adopted them, to abstain, as far as practicable, from the grant, or the relinquishment of powers by implication; a principle always to be regarded when the court is considering whether a particular power has been granted or surrendered by the people in their fundamental law. But when the validity of a particular power exercised by the General Assembly of the State, is contested, it is not necessary to show that [**17]  the power was granted by the Constitution. Those who dispute the power must establish affirmatively and clearly, that it has been denied. It is presumed to be valid. The Legislature is the depository of the power of the people, and you cannot curtail the authority of the Legislature without diminishing the power of the people.

"It is upon this ground, as well as from a becoming respect for the action of a co-ordinate department of the government, that the courts have uniformly declared that in no doubtful case would they pronounce a legislative act to be contrary to the Constitution. ( Fletcher vs. Peck, 6 Cranch, 128. Calder vs. Bull, 3 Dallas, 386.  4 Wheat., 608. 12 G. & J., 438.) In reference, therefore, to the question, whether this Act is to be treated as unconstitutional, I assume that the Legislature is to be considered in the possession of all powers properly legislative, so far as the Constitution of the State is concerned, which has not been by that Constitution prohibited expressly or by necessary implication. I say all power properly legislative, for to transfer the property of one individual to another, or to make a man a judge in his own cause, is not the exercise [**18]  of legislative power. But this principle, as we have seen from the authorities, has no application to the case of a municipal corporation.  (9 G. & J., 365. 12 G. & J., 436. 3 How., 550.)

"It is not contended that the power exercised by the Legislature in creating a permanent police for the city of Baltimore, has been expressly prohibited by the Constitution, and the question is, whether it is to be regarded as a power prohibited by implication, and the question which stands in advance of all other questions on this branch of the case is, whether a power of this description (the police power) can be considered as relinquished by the people by mere implication. Can you predicate of the people, in forming their Constitution, the intention to abdicate a power like this?

"What is the police power? I do not speak of this power in its largest sense, but in the sense in which it is to be understood in connection with a subject like the one now under consideration. It is emphatically a State power, one of the attributes of sovereignty; and in the nature of things it is a power which the Legislature should have the means of expanding to meet all the varied and changing wants of the [**19]  community. No duty, the Judge says, in the case of The People vs. Draper, 25 Barb., 374, when speaking of the police power of the State, or sovereignty, is more general or comprehensive in its nature than the duty of preserving the peace throughout its territory, of preventing crime, protecting the right of persons and property, guarding the public health, preserving order at elections, and the other numerous duties provided for by the Act before him, and enjoined upon the public officers. It is a mistake to suppose that the police duty imposed upon these Commissioners is limited to the preservation of the public peace. They are required by the 5th section of the Act to preserve the public peace, prevent crime, and arrest offenders, protect the rights of person and property, guard the public health, to preserve order at every public election, and at all public meetings and places, and on all public occasions, prevent and remove nuisances in the streets, highways, waters and other places, provide a proper police force for every fire, for the protection of firemen and property, protect strangers, emigrants and travelers at steamboats, ship-landings and railway stations, see that all [**20]  laws relating to elections, and to the observance of Sunday, and regarding pawnbrokers, gambling, intemperance, lotteries and lottery policies, vagrants, disorderly persons and free negroes, and the public health, are enforced, and also enforce all laws and all ordinances of the Mayor and City Council of Baltimore, not inconsistent with the provisions of this Article, or any other law of the State, which may be properly enforceable by a police force.

"This is the character of the power involved in this controversy, and the question is, whether it is not be regarded as a vital power which the whole community is interested in retaining undiminished?--within the principle established by the Supreme Court in the case of the Providence Bank vs. Billings & Pittman, 4 Pet., 514, and in the case of Charles River Bridge vs. Warren Bridge, 11 Pet., 547, that where the power is of that kind which the people are interested in preserving undiminished, there can be no assumed abandonment of that power.

"In the case of the Bank of Providence vs. Billing & Pittman, it appeared that the Legislature of Rhode Island had chartered a bank in the usual form of such acts of incorporation. The charter [**21]  contained no reservation on the part of the State that it would not impose a tax on the bank, nor any restriction of the right to do so. It was silent on the subject. Afterwards a law was passed imposing a tax on all banks in the State, and the right to impose this tax was resisted by the bank upon the ground, that if the State could impose a tax it might tax so heavily as to render the franchise of no value, and thus to destroy the institution; that the charter was a contract, and that a power which may in effect destroy the charter was inconsistent with it, and is impliedly renounced by granting it.

"But the court said the taxing power was of vital importance and essential to the existence of the government, and the relinquishment of such a power is never to be assumed, and in delivering the opinion of the court, Mr. Chief Justice Marshall says, in speaking of the taxing power: 'As the whole community is interested in retaining it undiminished, that community has a right to insist that its abandonment ought not to be presumed in a case in which the deliberate purpose of the State to abandon it does not appear.'

"In the case of Charles River Bridge vs. Warren Bridge, the [**22]  question was, whether the State could be presumed to have surrendered, by granting a charter, one of its police powers? The court considered the case before them in principle precisely similar to that of the Providence Bank vs. Billings & Pittman. Mr. Chief Justice Taney, in delivering the opinion, says: 'It may perhaps be said that in the case of the Providence Bank this court were speaking of the taxing power, which is of vital importance to the very existence of the government. But the object and end of all government is to promote the happiness of the community by which it is established, and it never can be assumed that the government intended to diminish its power of accomplishing the end for which it was created.'

"'A State ought never to be presumed to surrender this power because, like the taxing power, the whole community have an interest in preserving it undiminished.'

"If it be true, then, that the Legislature when in the possession of a power of this description is never to be presumed to have surrendered it, because the whole community is interested in preserving it undiminished, it is equally true that the people in adopting their Constitution are not to be [**23]  presumed to have abdicated it. The police power includes the power to pass sanitary and other police laws, and to select the agents by whom those laws are to be executed; these powers are necessarily connected. To render a power of this character efficient, the body in whom it resides must have the authority to modify it to meet the changing circumstances of the community upon whom it operates; this is not the business of a Constitution, which deals only with general principles and fundamental rules; and even if it could be assumed that by the 19th section of the 4th Article, the Justices of the Peace and the Constables were converted into police officers, and a police force thus created for the counties and the city of Baltimore, it might well be doubted if, from an arrangement of this kind in the Constitution, an intention in the people to withhold this power from the Legislature could be inferred. But the interpretation placed by the counsel for the respondents upon this section of the Constitution cannot be maintained. That it was not the purpose of the Constitution, by this provision, to exhaust the whole police power of the State, is obvious from the fact that the 19th section [**24]  provides only for the preservation of the public peace. This is one of the objects to be accomplished by the creation of a police force, but it is only one of those objects; and as the police force supposed to be created by this section is limited to the preservation of the public peace, if it be true that the whole police power of the State is exhausted and the Legislature thus impliedly prohibited from exercising this power, it must follow that there is a large and important class of police duties, with respect both to the city and counties, for which the Legislature can make no provision. Such a proposition, I think, inadmissible.

"But this section was not inserted in the Constitution for the purpose of creating a police force for the city, or for the counties; it was framed with a different purpose. The object was to organize subordinate judges, with a limited jurisdiction, and to provide them, in the constables, with executive officers who bear the same relation to the justices of the peace that the Sheriffs bear to the courts. This section is therefore found in that Article of the Constitution, which provides for the organization of the judiciary department, and declares [**25]  that the judicial power of the State shall be vested in a Court of Appeals, in Circuit Courts, in such courts for the city of Baltimore as may be hereinafter prescribed, and in Justices of the Peace.

"The general duties of a police officer are manifestly unsuited to, and inconsistent with, the official duties of the justices of the peace and the constables, and when it is declared that they shall have such duties and compensation as now exist, or may be provided for by law, the purpose was to authorise the Legislature to impose such new duties as were compatible with the duties which had already been assigned to them.

"It is declared that they shall be, by virtue of their offices, conservators of the peace for the counties and city, respectively, but this was an act of supererogation, and was inserted from abundant caution, for both the justices of the peace and the constables, would be ex officio conservators of the peace, in the absence of any provision of this kind in the Constitution.

"That portion of the 19th section, which declares that the Mayor and City Council of Baltimore may provide, from time to time, for the creation and government of such temporary and [**26]  additional police as they deem necessary to preserve the public peace, cannot be regarded, I think, as covering the whole field of the police power within the city of Baltimore.

"The force which the city authorities are thus authorised to create, was confined to the preservation of the public peace; it was to be temporary in its nature, and to be organized, or diminished as the public exigencies might require, and the force to which it was to be attached as an additional force, was the police force in existence at the time the Constitution went into operation, and which had been created under the Acts of Assembly, and the ordinances of the city previously passed. I think, therefore, that the General Assembly, in passing this Act creating a permanent police for the city of Baltimore, are not to be considered as having transcended their constitutional authority.

"The next question to be considered is, whether the appointment by the Legislature of the relators as commissioners of this Board of Police, is in conflict with the 11th section of the 2nd Article of the Constitution, which declares that the Governor shall nominate, and by and with the advice of the Senate, appoint [**27]  all civil and military officers of the State, whose appointment or election is not otherwise herein provided for, unless a different mode of appointment is prescribed by the law creating the office? I think not, as the office in contest was created by law. This question cannot be considered as open, since the decision of the Court of Appeals in the case of Davis vs. The State, 7 Md. Rep., 161. I quote the opinion of the court, as one which I adopt as containing the true exposition of this provision of the Constitution, and covering the whole proposition.

"The court says: 'The appellant contends that the law of 1854 is unconstitutional and void, inasmuch as it seeks to take from the Governor the appointment of the inspector; and Article 2 and section 11 of the Constitution, is relied on to support this position. That section provides that the Governor shall appoint all officers, whose appointment or election is not otherwise herein provided for, unless a different mode of appointment be prescribed by the law creating the office. In a few words, we think this provision means simply that the Governor shall have power to fill all offices in the State, whether created by the Constitution [**28]  or by the Act of Assembly, unless otherwise provided by the one or the other; therefore when the Legislature has created an office by Act of Assembly, the Legislature can designate by whom and in what manner the person who is to fill the office shall be appointed. If the source of the appointment is not thus designated, the Governor by virtue of the above section, makes the appointment, the same as if he had been specially authorized by the Act to do so.'

"Assuming then, that this Board was validly constituted, the relators were entitled, I think, to require from the Mayor and City Council the surrender of the use of the Fire Alarm, Police Telegraph, all the station houses, watch-boxes, arms and accoutrements, mentioned in the 12th section of the Act, and to exact a compliance with this demand by the writ of mandamus. The property, in question, was acquired by means of taxes imposed by the State, through the instrumentality of her municipal agent, and was strictly public property, and as such subject to the disposition and control of the State. It was not private property held for municipal uses as property acquired by endowment or gift, (2 Kent, 309.) This proposition is established [**29]  by the case of the Mayor & City Council vs. Lemmon, and the cases of Washington County vs. The Railroad Company, 12 G. & J., 438, and the same case in 3 How., 550.

"In speaking of the money claimed by Washington county, the Court of Appeals say, that the county by which the claim is attempted to be enforced, is one of the public territorial divisions of the State, established for political purposes, connected with the administration of the government. In that character she would receive the money as public property, to be used for public purposes only, and not for the use of the citizens in their private individual characters and capacities. In that relation they would have no immediate interest, and could assert no title. And in 3 How., 550, the Supreme Court say, in reference to the money claimed by Washington county: 'If this money had been received from the Railroad company, the Commissioners, in their corporate capacity, would not have been entitled to it, and could neither have received, nor disbursed it, nor directed the uses to which it should be applied, unless the State had seen fit to enlarge their powers and commit the money to their care. This corporation, therefore,  [**30]  had certainly no private corporate interest in the money, and, indeed, the suit is not entered for their use, but for the use of the county. The claim for the county is equally untenable with that of the Commissioners.'

"But the true ground of contest with respect to this branch of the power exercised by the Legislature, is that which is raised by the answer, and supported with great ingenuity by the counsel for the respondents. It is this: By the 19th section of the 4th Article, the Mayor and City Council are empowered to provide for the creation and government of such temporary and additional police force, as they may deem necessary, for the preservation of the public peace; that this right being secured by the Constitution, is beyond the control of the Legislature; and that the whole police apparatus demanded by the relators in their petition for a mandamus, is necessary for the use and accommodation of this force. Admitting the foundation on which this argument is erected, to be sound, the conclusion is irresistible. But the defect in the argument is in the original proposition.

"The police force which was in existence at the time of the passage of this Act, and which [**31]  is now in existence, and for the use and accommodation of whom this police apparatus has been provided, is not an additional and temporary police, but the police created and organized under the Act of Assembly of 1853, ch. 46, and the ordinance of the 1st of January 1857, passed in pursuance of that Act. This is apparent from the fact that while the police now existing, as organized under the Act of 1853, and the ordinance of 1857, is charged with the entire class of police duties, any additional and temporary police which the Mayor and City Council might create under the power granted by the 19th section, would be limited to the preservation of the public peace.

"If the Mayor and City Council were involved in a controversy in reference to their right to create the police force now in existence, and in a special plea of justification, derived their right to raise this force from the 19th section of the 4th Article, it is clear that the court would be obliged to pronounce a plea of that description, defective. It follows, therefore, that as the Act of 1853, ch. 46, under which the existing police, for whose use this police apparatus was prepared, is repealed, the police force must [**32]  itself disappear at the period designated by the bill, and the police apparatus, which was provided for its accommodation, must be transferred for the purposes of that force which supplies its place. It is only necessary, in concluding the opinion on this part of the case, to say that, as the question whether the existing police force was created under the 19th section of the 4th Article, or under the Act of 1853, ch. 46, is a question of law, the allegation in the answer in reference to this subject, is not conceded by the demurrer.

"The 15th section of the bill presents the question as to the authority of the Legislature to confer upon the Commissioners the means of raising the money necessary for the execution of the duties imposed upon them, without which, of course, the Board would be inefficient and powerless. That portion of the 15th section which confers on the Commissioners the authority to estimate what sum of money will be necessary to enable them to discharge the duties imposed on them, and the obligation of the Mayor and City Council to raise, by assessment, and levy upon the assessable property of the city, the sum thus estimated by the Board, is not obnoxious to [**33]  any valid objection, as a question of power. But the Commissioners are authorized to issue certificates of indebtedness, in the name of the Mayor and City Council, in the manner, upon the terms, and for the purposes indicated by the bill, upon the contingency of the Mayor, Register, Comptroller, or other proper disbursing officer, failing to comply with the requisitions of the Board, and the validity of this power has been contested and defended with great ability by the respective counsel.

"The counsel for the respondents contend that these certificates are to be considered as bills of credit, and therefore within the prohibition of the 10th section of the 1st Article of the Constitution of the United States. The argument assumes, and correctly assumes, that these certificates, though issued by the Board, are to be treated as issued by the State; but it necessarily concedes the proposition, that when the taxing power, or any other power, is exerted by a municipal agent, the act is to be regarded as the act of the State, exercised through the instrumentality of its agent. The power emanates from the State, and the State can, of course, regulate the manner in which the power is [**34]  to be used. The case of the Mayor & City Council vs. The Balto. & Ohio Railroad Co., 6 Gill, 288, establishes the principle that the State may declare what the city may and may not tax. These certificates are clearly not bills of credit--the faith of the State is not pledged for their redemption, which is essential in the definition of a bill of credit. ( Craig vs. State of Missouri, 4 Pet., 410. Briscoe vs. The Bank of Kentucky, 11 Pet., 257.) The exercise of this power is not in conflict with the Constitution of the General Government; and I am not aware of any restriction upon the taxing power of the State, except such as is to be found in the Constitution of the United States, or in the 13th Article of our Bill of Rights. Any power which the State can exercise, directly, it may exert through the instrumentality of its municipal agents, and the authority to use the power, includes the right to determine the mode in which the power was to be employed; and if the Legislature chooses to select two agents, as has been done in this case, for the execution of her own authorized powers within the limits of her municipalities, it is difficult to perceive why she cannot authorize one of those [**35]  agents to use the name and power of the other.

"The right to use this authority stands on the proposition that the whole taxing power of the municipality is at the command and under the control of the State. But even if the authority granted to the commissioners to issue these certificates, and use them in the way prescribed by the bill, could be considered as not within the competency of the Legislature, I do not think it would invalidate the Act.  (7 Md. Rep., 161. 2 Gray, 98 to 101.) It is a contingent power that may never occur. The probabilities are all against the happening of an event upon which alone this power would be called into existence. If this Act should be declared to be unconstitutional, by the court of dernier resort, the authority of the board is terminated. And if its validity should be established, the presumption is that the city authorities would yield to the requisitions of an Act of the State, which would then be decided as the acknowledged law of the land. It follows from the views thus expressed, that I think the relators are entitled to the writ of mandamus, as claimed in their petition; and in stating my opinion in relation to the two objections that [**36]  have been raised against the bill, as interfering with the power of the Governor over the militia, and as invading the rights and privileges of the Sheriff, I do so, as these questions have been elaborately argued, and because the counsel for the respondents seem to consider that the parts of the bill connected with those objections, cannot be severed from its main provisions; and if they are unauthorised, the whole bill is invalidated.

"By the 9th section of the 2nd Article of the Constitution, it is declared that the Governor shall be commander-in-chief of the land and naval forces of the State, and may call out the militia to repel invasions, suppress insurrections and enforce the execution of the laws, but shall not take the command in person without the consent of the Legislature, and the question is, whether the power to call out the militia for any of the purposes mentioned in this section of the Constitution, is to be considered as exclusively vested in the Governor? I think not. The proposition that this power is to be regarded as vested exclusively in the Governor, ascribes to those who framed the Constitution, and to the people who adopted it, a want of sagacity not [**37]  to be attributed to them. Suppose a servile insurrection, in actual operation, or threatened, or a railroad riot so formidable as to require the aid of the military arm for its prevention or suppression, in a remote county of the State, and the Governor is at the seat of government, or at some distant place, is it to be supposed that the Legislature have no authority to provide for such an emergency, by vesting in some of the tribunals of the State, or in some of the local authorities, as its own municipal agents, the power of meeting the emergency by calling forth the militia? If so, the counties and the city of Baltimore might be left in a most defenceless condition. The Constitution of 1776, empowered the Governor, by and with the advice and consent of the Council, to embody the militia, and when embodied, they were placed under his command. The Constitution of 1836, conferred the same power on the Governor, the Council having been abolished, and under those Constitutions, the power of calling out the militia, has been vested by the Legislature in the courts and local authorities, and that this was a legitimate exercise of legislative authority, has never been denied or questioned,  [**38]  (Act of 1823. ch. 188, sec. 70.)

"That this power, as well as all other powers, vested in this Board, will be discreetly exercised, we have those guarantees which exist in reference to the faithful performance of official duties by other political agents, and if a power was to be defeated on the ground that it might be abused by those to whom it was entrusted, the objection would be fatal to all power. The objection raised to that portion of the bill which vests in the Commissioners the right to require the services of the Sheriff, and directs him, upon their order, to summon the posse comitatus, and places the Sheriff and that force under the direction of the Board, cannot, I think, be maintained.

"The sheriff is a constitutional officer, but his duties as a conservator of the peace, are not defined by the Constitution. Those duties are common law duties, and are described by the Supreme Court in the case of South vs. The State of Maryland, in 18 How., 402. It is there said that the sheriff, as a conservator of the peace of his county, or bailiwick, is the representative of the king or sovereign power of the State, for that purpose. He has the care of the courts, and though [**39]  forbidden, by Magna Charta, to act as a justice of the peace on trial of criminal cases, he exercises all the authority of that office, where the public was concerned.

"He may, upon view, without writ or process, commit to prison all persons who break the peace, or attempt to break it, and, for these purposes, he may command the posse comitatus of the county.

"These are the common law duties of the sheriff, as a conservator of the peace, and as such may be repealed or modified by the Legislature at its will and pleasure. This is done every day. I do not perceive in what way the private rights, privileges or immunities of the Sheriff, are invaded by this Act; and his official duties are subject to the control of the Legislature. In the case of the People vs. Draper, 25 Barb., in speaking of the sheriff, the court says: 'At common law, and at the time of the adoption of this Constitution, in most, if not all the counties, the sheriff was, in some sense, head of the police, and it was his special duty to preserve the peace. He is an officer who is recognised by the Constitution, and whose election is there specially provided for, yet that part of his duties could unquestionably [**40]  be taken from him, and performed by others, as by the mayor of a city, or the head of police.'

"After a careful and anxious examination of this case, I have come to the conclusion that the objections raised against this Act, and which have been pressed with great ingenuity and ability are to be considered as applying only to the question of expediency, with which the court has no concern, and not to the question of power."

Orders were thereupon passed sustaining the demurrer to the answer of the Mayor and City Council, and making absolute the order for the mandamus as prayed for by the relators, and dismissing the petition of the Mayor and City Council for the mandamus prayed for by them. From these orders these appeals were taken.  

DISPOSITION:
Order affirmed.  

HEADNOTES:

The Act of 1860, ch. 7, repealing certain laws relating to the Police of the city of Baltimore, and amending certain provisions of the city charter relating to the police and general powers of the Mayor and City Council, and providing a permanent police for the city, under the control of a Board of Police, consisting of commissioners appointed by the Legislature, is constitutional and valid.

In cases of doubt on the question of power in the Legislature to pass a law, the courts ought not to interfere and pronounce it unconstitutional; they cannot do so without assuming (where it does not clearly appear) that the Constitution has been violated.

The power of appointment to office is not, under our systems of checks and balances in the distributions of powers, where the people are the source and fountain of government, a function intrinsically executive, in the sense that it is inherent in, and necessarily belongs to, the executive department.

Our form of government in its various changes has never recognised the power of appointment to office as an executive prerogative; the Constitution so far from treating it as an inherent executive power indicates that it belongs where the people choose to place it.

The 6th Art. of the Bill of Rights, "that the legislative, executive and judicial powers of government ought to be forever separate and distinct from each other, and no person exercising the functions of one of said departments shall assume or discharge the duties of any other," is not to be interpreted as enjoining a complete separation between these several departments.

Such complete separation has never practically existed in any of the States in whose fundamental law this principle has been asserted; in this State there are numerous instances of laws affording relief where the judiciary possessed ample jurisdiction over the subject matter, and instances of appointments to office, by the Legislature, are equally numerous.

Such legislation is evidence of co-temporaneous construction and acquiescence of the people, and the various departments, in this practical interpretation, and the Constitution may receive an interpretation from a long, constant and uniform legislative practice.

The Bill of Rights is not to be construed by itself according to its literal meaning; it and the Constitution compose our form of government and they must be interpreted as one instrument; the former announces principles on which the government about to be established, will be based; if they differ, the Constitution must be taken as a limitation or qualification of the general principles previously declared, according to the subject and the language employed.

The design of Art. 6, of the Bill of Rights, was to ingraft the principles there announced, on our system, only as far as comported with free government, as an inhibition upon the exercise by one department of powers conferred on any other by the Constitution, restraining each branch within its appropriate sphere, by forbidding to it the use of powers allotted to the co-ordinate departments.

If the power of appointing officers to offices created by law, is conferred by the Constitution on any other branch of the government, the Legislature cannot exercise such power, and the law would be void, but if the power is given to the Legislature, it may be exercised notwithstanding the 6th Art. of the Bill of Rights

Sec. 11, of Art. 2, of the Constitution, confers on the executive the appointment of all officers not otherwise provided for, "unless a different mode of appointment be prescribed by the law creating the office," and under this the Legislature may, itself, designate the officers in the law creating the offices.

The Constitution must receive an interpretation according to the sense in which the people are supposed to have understood its language, but it ought also to be considered with reference to the previous legislation of the State.

The power of appointment to offices created by law, having been exercised by the Legislature, from the earliest period of the government, in the absence of any prohibition in the Constitution, express or implied, it is to be presumed that the people intended the Legislature should continue to exercise the power.

While the motives of the Legislature can have no effect upon the efficiency of laws, neither can they be regarded by the judiciary when testing the power of the Legislature to pass them.

The fact that the Constitution mentions and recognises the Municipal Corporation of the city of Baltimore, does not make the charter of the city a constitutional charter, so as to place it beyond the reach of legislative power.

The city of Baltimore and the counties are public territorial divisions of the State, established for public political purposes connected with the administration of the government, possessing the character, and endowed with the powers of corporations, according to the laws severally applicable to each.

The city of Baltimore and the counties are mere instruments of government appointed to aid in the administration of public affairs, and are parts of the State; as public corporations they are to be governed according to the laws of the land, and are subject to the control of the Legislature.

The provision in the Police law, which transfers to the commissioners, for the purposes of the new police, the use of the fire alarm telegraph, station houses, &c., provided by the city, as fully and to the same extent as the same are now, or may be, used by or for the city police, is constitutional and valid.

Such a provision merely takes city property dedicated to particular public uses and applies it to the same purposes, by only changing the agency by which the use is to be directed; the character of the property is not changed nor the title; no matter by whom managed, it remains public, devoted to public use, and all the while belongs to the city.

Art. 4, sec. 19, of the Constitution, after providing for the election of justices and constables for the counties and city of Baltimore, and declaring them to be, by virtue of their offices, conservators of the peace, in the counties and city respectively, concludes thus: "And the Mayor and City Council may provide, by ordinance, from time to time, for the creation and government of such temporary additional police as they may deem necessary to preserve the public peace." HELD:

That the police which the city authorities are hereby empowered to create is to be additional to the police system then in operation, and such as might thereafter be established by law, and not to the justices and constables mentioned in this section.

It is not made the duty, nor is it within the nature of his office, that a justice of the peace, or a constable, should perform police duty, other than such as looks to the preservation of the peace.

The power to govern belongs to the people, and it is their duty to exercise it for the common good, and being under that obligation, it is not to be assumed that they have impaired the means of performing the duty by parting with the power to any division of the body politic.

The power to levy taxes is a sovereign power, and unless committed to some portion of the people, may be exercised by the Legislature, and it is not to be considered as parted with by mere construction.

The power to levy taxes may be delegated by the Legislature to commissioners, or any other agents, and when the Legislature provides for a tax by any agency whatever, it is, in contemplation of the Constitution, the act of the people.

The power given to the commissioners to issue, in certain contingencies, certificates of indebtedness in the name of the Mayor and City Council, bearing interest, with power to pledge and dispose of them, is not in violation of that clause of Art. 1, sec. 10, of the Constitution of the United States, which declares that no State shall "remit bills of credit."

There is no injustice, nor defect of law, in authorising such certificates to be received in payment of taxes; such mode of payment of public taxes has heretofore been practiced in this State.

The provision making it the duty of the sheriff, when called on, to act under the Board of Police, in the preservation of the public peace, and to call out the posse, if required by them, and hold it subject to their direction, is no valid objection to the law, nor would it vitiate the law if the objection were sustained.

The Constitution mentions the office of Sheriff, and provides for filling it, but does not specify or describe his powers and duties; these are left to the common law and the Acts of Assembly and may be changed by law.

The power given to the Board of Police to call out the military force of the city to aid in preventing threatened disorder, or to suppress insurrection, riot or disorder, is no valid objection to the law, nor would it vitiate the law if the objection were sustained.

There is nothing in such a provision, nor in this law, which abridges the constitutional power of the Governor to call out the militia to repel invasion, suppress insurrections, and enforce the laws.

The proviso, declaring "that no Black Republican, or endorser or approver of the Helper Book," shall be appointed to any office under the board, is unconstitutional, if it is to be understood that that class of persons are prescribed on account of their political or religious opinion, but as the court cannot officially understand who are meant to be affected by the proviso, no judicial opinion can be expressed on the question.

As to the effect of the clause which disqualifies from holding any office under the Mayor and City Council of Baltimore, such persons as shall forcibly resist the provision of this law, the judges are equally divided in opinion.

The provision making the commissioners part of the city authorities, and making the city responsible for their acts, is no valid objection to the power of the Legislature so to provide, and if the objection should prevail, it would not defeat the law.

The doctrines, that there is a fundamental principle of right and justice, inherent in the nature and spirit of the social compact, that rises above and restrains the power of legislation, cannot be applied to the Legislature when exercising its sovereignty over public charters, granted for the purpose of government.

The principle above stated, with the limitation that it is designed to protect the life, liberty and property of the citizen from violation in the unjust exercise of legislative power, asserts a very correct doctrine.  

COUNSEL:
The brief submitted by Meredith, Price, Schley and Alexander, as counsel for the appellants, and referred to in the opinion of this court, contains these general propositions:

1st. That the Act of 1860, ch. 7, (the Police Act,) in its whole scope and design, and in each of its provisions hereinafter referred to, is repugnant to the letter and spirit of the Constitution, and is consequently void.

2nd. That the leading [**41]  and governing intent of the framers of the Constitution, necessarily inferred from the whole structure of the instrument, was the decentralization of power by distributing it among the local authorities of the State, and by making all local officers elective mediately or immediately by the electors of the locality; in other words, popularizing the whole frame of government, and that, therefore, all legislative power tending to oppose or thwart this manifested intent of the Constitution, that is to say, to depopularize and centralize the powers of government, is, by necessary implications, prohibited.

3rd. That the Constitution contains a general grant of legislative power, subject, however, to express or implied prohibitions.

4th. That limitation upon the legislative power rests not merely upon the Constitution, but upon the great and immutable principles of right and justice which lie at the foundation of all free governments, and that, therefore, all such provisions in the bill as violate those principles, are as absolutely void as if expressly prohibited by the Constitution. 3 Dallas, 387, Calder & wife vs. Bull & wife. 10 Barb., 223, Benson, et al., vs. Mayor, &c., of [**42]  New York. 9 G. & J., 408, Regent's Case. 2 Md. Rep., 442, Wright vs. Wright.

This brief also submits the following points:

1st. The appellants will contend that the Constitution does not confer upon the Legislature the power of appointment of the Commissioners as exercised by the 4th sec. of the Act. 1st. Because the appointment to office is peculiarly an executive, not a legislative power, and the two powers are, by the Bill of Rights, (Art. 6,) declared to be forever separate and distinct from each other. 2nd. Because sec. 11 of Art. 2 of the Constitution, gives to the Legislature, in creating an office, power only to prescribe the mode of appointment, and can, by no legitimate mode of construction, be interpreted to grant the power of legislative appointment. 3rd. That by the said section, the Governor has the power "to fill all offices in the State, whether created by the Constitution or by Act of Assembly, unless otherwise provided by one or the other." If the law creating an office does not prescribe the mode of appointment, the Governor has the same power to appoint that he would have were he specially authorized by the Act to do so; and that, in this case, if the [**43]  appointment by the Legislature is not warranted by said sec. 11 of Art. 2, and the Act is, in other respects, constitutional, the power of appointment devolves upon the Governor. 4th. That the Legislature, under the authority of said section, had, in this case, power to delegate, and ought to have delegated the appointment of Commissioners to the people, or to the local authorities of the city of Baltimore. 5th. That the Legislature had no power to authorize the Commissioners to fill vacancies in the Board of Police, as provided for in the 3rd sec. of this law.

2nd. The 14th sec. of the Act tranfers the whole existing police force of the city of Baltimore--officers and men--from the city government to the Commissioners. The appellants will insist that this section is unconstitutional and illegal, 1st. Because the charter of 1796, in giving to Baltimore a local government, gave, by unavoidable implication, all the means necessary for the purposes of government, among which was a police power to maintain the peace and security of the governed. It is an inherent right, co-existent with the government, and cannot be separated from it. Federalist, Nos. 33, 44. 1 Story's Comm. on Cons.  [**44]  , secs. 433, 434. 2nd. Because if not an inherent right, but a franchise, the corporation cannot be divested of it by a legislative Act, but only by "the law of the land," (Dec. of Rights, Art. 21,) and that law prescribes an adequate and the only remedy by scire facias, which is applicable to the forfeiture of a charter in whole or in part. Wilcock on Municipal Corporations, in 14 Law Lib., 183. The forfeiture of a charter, or of any one or more of its franchises, is within the judicial, but not within the legislative power. 3rd. Because the Constitution, in recognizing the municipal corporation of Baltimore as part and parcel of the organized government of the State, has placed its charter beyond the reach of mere legislative power. 4th. Because, if the Legislature has no power to repeal the charter of 1796, it has no power to dismember the government created by it, by annulling and destroying important and indispensable franchises. 5th. Because the existing police force of the city of Baltimore, which this 14th sec. of the Act transfers to the Commissioners, was created, and has been, and is governed, by the Mayor and City Council of Baltimore, in virtue of the power granted to them [**45]  by the Constitution.

3rd. The 12th sec. of the Bill transfers to the Commissioners the use of the Fire Alarm and Police Telegraph, and all station-houses, watch-boxes, arms, accoutrements and other accommodations and things provided by the Mayor and City Council, as fully and to the same extent as they are now or may be used by the said city police, and, in case of refusal, provides for the issuing of a mandamus. The appellants will contend that a legislative Act which takes away the vested rights of property for any purpose except where it is taken for public use, and upon a just compensation, is beyond the scope of legislative authority. 4 Wheat., 694. That the property enumerated in this 12th sec. was purchased and paid for by the corporation for the use of its present police, and was vested in the corporation by the Act of 1827, ch. 167, by force of which it became its private property, subject to its own disposal, and of which the Legislature cannot deprive it against its will and consent. That although it is true this section does not, in terms, deprive the corporation of ownership of this property, it effectually does so by depriving the city of its use. That to take from [**46]  the owner the use of his property, is an act of confiscation not within the scope of legislative power. 5 Md. Rep., 322, Moale vs. Mayor & C. C. of Balto. And that if the Legislature cannot take away the use of property, it cannot regulate such use. 9 Gill, 309, Baugher vs. Nelson. 2 Kent, 329, 340.

4th. That the permanent police created and established by the Act is a violation of sec. 19, Art. 4 of the Constitution. That this section was intended to carry into effect the power which the 2nd Art. of the Bill of Rights declares, is solely and exclusively the right of the people, by laying the basis of a permanent police for the whole State, and authorizing the Legislature to perfect it.

5th. That sec. 19 of Art. 4 of the Constitution gives to the Mayor and City Council power to provide by ordinance, from time to time, for the creation and government of such temporary and additional police as they may deem necessary to preserve the public peace. That the term, "additional police," refers for its co-relative to the permanent police provided for the city by the antecedent clauses of the section, and that the word "temporary," was meant to give to the Mayor and Council, from [**47]  time to time, power to change and modify the police system for the time being; in other words, to contradistinguish such police from the permanent police created by the section for the several counties of the State and city, so that every police ordinance passed, creates by the Constitution a temporary police force liable to be altered by ordinance as the wants and exigencies of the city may require.

6th. That the power conferred upon the Mayor and City Council by sec. 19 of Art. 4 of the Constitution, to create and govern by ordinance such additional temporary police as they may deem necessary to preserve the public peace, is an exclusive power; and that a concurrent legislative power would be wholly contradictory and repugnant to the power so expressly granted to the city. 4 Wheat., 193, 426. 1 Story's Comm. on Cons., sec. 447.

7th. The 15th sec. of the Act creates a debt against the city without its consent, and against its will, and is against right and justice, contrary to the principles of a free government, and wholly unauthorized by any power granted to the Legislature by the Constitution. 16 Mass., 84, Hampshire vs. Franklin.

8th. The power given to the Commissioners [**48]  by the same section, to issue certificates of indebtedness, bearing interest, in the name of the Mayor and Council, with power to pledge or dispose of them, and thus to put them into circulation, and making them a tender in the payment of taxes, at par, is a violation of sec. 10, Art. 1, of the Constitution of the United States, and, therefore, void.

9th. The 13th sec. of the Act transfers to the Commissioners, at their will, one of the chief functions of the office of sheriff, as conservator of the peace, and deprives him of all discretionary power to raise, use and direct, a posse comitatus for its preservation; thus unwarrantably transferring to the Commissioners, appointed by the Legislature, one of the principal duties of a constitutional officer, elected by the people. 2 Denio, 272, Warner vs. The People. 25 Barb., 378, 379, People vs. Draper, and same case in 1 Smith, 551, 552. 4 Md. Rep., 189, Thomas vs. Owens.

10th. The 16th sec. of this Act imposes a penalty of $ 1000, and a disqualification forever, from holding or exercising any office or employment whatsoever under the Mayor and City Council, or under the Commissioners, upon each and every person who shall, among [**49]  other things mentioned therein, hinder or obstruct the organization of the Board of Police, or maintain or control any other police force than that established by the bill. It will be contended that this amounts to a disfranchisement, which the Legislature has no constitutional power to inflict. Cons., Art. 1, secs. 2, 5; Art. 3, sec. 33.

11th. The 6th sec. provides "that no Black Republican, or endorser or supporter of the Helper Book, shall be appointed to any office under said Board," and thereby introduces into legislation the principle of proscription for the sake of political opinion, which is directly opposed to the cardinal principles on which the Constitution is founded.

12th. The 13th sec. of the Act gives to the Commissioners the power, in their discretion, to call out the military force of the city, and makes it the duty of such military force so called out, to obey such directions as may be given by the Commissioners in derogation of the constitutional power of the Governor, and without any power, express or implied, granted to the Legislature by the Constitution. Cons., Art. 2, sec. 9; Art. 9, sec. 1.

13th. The 19th section of the Act interjects the Commissioners [**50]  into the city government as authorities; in other words as agents of the corporation, against its will and consent; and makes the corporation subordinate to and controllable by the Commissioners, and yet responsible, while it is so controlled, for any failure of the Commissioners to discharge their duties and obligation--against every principle of right and justice, and in total abrogation of the settled and well known laws of agency.

14th. The appellants will further contend that, as a rule of statutory construction, when the different parts of an Act are so connected together as to form a connected and entire whole, if any one of its main provisions shall be judicially declared void, it will render the whole Act void; and they will insist upon the applicability of this rule to the present case. 2 Gray, 84, Warren et al., vs. Mayor & Aldermen of Charleston. 7 Md. Rep., 160, Davis vs. The State. 1 Louisiana Ann. Rep., 116, The Second Municipality of New Orleans vs. Morgan. 3 Ohio State Rep., 34, Exchange Bank of Columbus vs. Hines.

Thos. S. Alexander for the appellants:

The legislative power, in the absence of constitutional limitations, extends to all appropriate subjects [**51]  of legislation; the limitation is the exception, and he who would insist upon the limitation must prove it. But it is not at all necessary that the limitation should be created by express words. It may be made out by implication, resulting from the grant of power to another department, and even by the form in which power is granted to the Legislature.

In this respect, we admit, there is a wide distinction between the Congress of the United States and the Legislature of a State. Congress possesses no power which has not been delegated to it expressly or by plain implication. And this rule, which might otherwise be rested on general principles, is enforced by Amendment 10 to the Constitution of the United States: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." But it is nevertheless settled, that the powers which are granted to Congress may be exercised in such manner as are best calculated to promote the objects of the grant. Thus the power expressly granted to regulate commerce, carries with it the power to regulate ships in which commerce is carried on. 9 Wheat.  [**52]  , 1, Gibbons vs. Ogden. And the power to provide for calling out the militia "to repel invasion, to suppress insurrection, and to enforce the execution of the laws," authorises Congress to provide for calling out the militia in anticipation of such dangers. 12 Wheat. 29 Martin vs. Mott. In M'Culloch vs. The State of Maryland, 4 Wheat., 316, it was adjudged that though Congress cannot charter a bank as a mean of promoting the general commerce of the country, it has power to charter a bank to aid the treasury in the collection and disbursement of the public revenue. The power expressly delegated by Art. 1, sec. 8, pl. 18, to make all laws which shall be necessary and proper for carrying into execution the powers expressly granted, confers on Congress a choice of means, and does not confine it to what is indispensably necessary. 2 Cranch, 358, United States vs. Fisher.

We are content, then, to run the parallel between Congress and the local legislature of Baltimore, each being a legislative body of specially delegated authority, and we contend that the powers granted to the Mayor and City Council of Baltimore, are to be exercised in such manner as will reasonably advance the objects [**53]  of their creation.

1. By sec. 19, of Art. 4, of the Constitution, justices of the peace and constables are to be elected in the several election districts of the counties and wards of the city of Baltimore, in such numbers "as the wants and interests of the people may require," and they are declared to be, by virtue of their offices, conservators of the peace, in their respective counties and city. By the last clause of the same section, "The Mayor and City Council of Baltimore may provide by ordinance, from time to time, for the creation and government of such temporary additional police as they may deem necessary to preserve the public peace." The police to be created by the Mayor and City Council is to be additional, and the inquiry is to what? The next antecedent is the force of justices and constables. They constitute unquestionably a police; and the Mayor and City Council are authorised to create an additional police. The justices and constables are declared to be a police for conservation of the public peace; and the Mayor and City Council are to create an additional police to preserve the public peace. In arithmetical language, the police of justices and constables, established [**54]  by the Constitution, and the additional police to be created by the Mayor and City Council, are of the same denomination. They are capable of addition and of forming one homogeneous aggregate. To add is "to set or put together, join or unite." "In general, when used of things, it implies a principal thing to which a smaller is to be annexed, as a part of a whole sum, mass or number." The whole section is suggestive, therefore, of the idea, that the justices and constables were designed to form (as in all past time they have formed) a complete and sufficient police for the rural districts of the State; and that in view of the peculiar circumstances of the city of Baltimore, its local legislature was empowered to provide such temporary additional police, as, with the force of justices and constables, would be equal to the preservation of the peace of the city. The strength of the force to be created by the Mayor and City Council, is to be determined by the strength of the justices and constables to which it is to be added. The forces combined are to be sufficient, and no more than sufficient to preserve the peace of the city. Hence there is no room for implication of a power in the Legislature,  [**55]  or elsewhere, to interpose a third police force between the justices and constables, and the additional force to be provided by the city. Such third force would be simply unnecessary. It could not be introduced without interfering materially with the exercise of the power expressly conceded to the city, which, as we have seen, is a power to create such an additional police as, with the justices and constables, will be necessary to maintain the peace of the city.

It is conceded by the counsel on the other side, and by the judge who decided the case in the court below, that the Constitution recognises the existence of a permanent principal police, to which the police, which the city is authorised to create, is to be additional. They insist that at the time of the adoption of the Constitution there was a police of the city, organized under the provisions of the Acts of 1812, ch. 194, and 1817, ch. 148, which, in this respect, are supplementary to the original charter; and that the additional force to be created under the Constitution is to be attached to this charter police. Upon this hypothesis the conclusion seems to be inevitable, that the Acts of Assembly referred to have become [**56]  incorporated into the Constitution, and that the police organized under them is become a constitutional police. Such would, undoubtedly, have been the consequence if the Constitution had, in words, provided that the Mayor and City Council should have power to create and govern "such temporary additional police, as they may deem necessary, in association with the police already created by the Acts of 1812 and 1817, to preserve the public peace." We hold it to be clear, that the consequences resulting from the implication when made, must be precisely the same, whatever may be the language used out of which the implication itself arises. The power to create and govern an additional police is as enduring as the Constitution itself. And so long as this power to add endures, the principal thing to which the addition is to be made, must continue to exist. Hence, by plain and necessary, violent and inevitable implication, the force created under the charter and its supplements, if that force is taken to be the principal force intended by the Constitution, must be endowed with the permanence of a constitutional sanction.

The difference between the counsel on the other side and ourselves [**57]  is more of form than reality, and is susceptible of easy explanation and reconcilement. At the time of adopting the Constitution the peace of the city was in the joint keeping of a police of justices and constables, and of a charter police. But the charter police was limited in number. It was already inadequate to its object, and the rapid growth of the city was rendering its inefficiency daily more apparent. The framers of the Constitution intended to remove this stint on the power of the city and to enlarge its authority, so that it should be adequate to the maintenance of the public peace in any and every emergency. But, as in time past so in time to come, the object was to be effected by the work and power of the police of justices and constables, and of the municipal police.

In addition to their duties as conservators of the peace, the justices and constables "shall have such duties and compensation as now exist, or may be provided for by law." Hence it is argued that the only object of the section "was to organize subordinate judges with a limited jurisdiction, and to provide them, in the constables, with executive officers who bear the same relation to the justices that [**58]  the sheriffs bear to the courts; and therefore the section is found in that Article of the Constitution, which provides for the organization of the judiciary department; and that the declaration that they shall be conservators of the peace is an act of supererogation and was inserted from abundant caution; for both justices and constables would be, ex officio, conservators of the peace in the absence of any provision of the kind in the Constitution." According to this argument, the only power which is indissolubly annexed to the offices of justice and constable was conferred unnecessarily, and out of abundant caution! and these powers, for the exercise of which it was supposed the offices were established by the Constitution, may be withdrawn by the Legislature!!! It is certain that the authority of the justices and constables, as conservators of the peace, is beyond all legislative control. And it would seem to be equally certain that the Legislature may add to the duties of the justices and constables, and may modify and withdraw any of the powers which they now exercise, saving and excepting their powers as conservators of the peace. Their jurisdiction in cases of small debts may [**59]  be extended to $ 200. In the counties it may be confined within its ancient limit of £  10. They have criminal or police jurisdiction under the oyster laws and negro laws. May not the Legislature divest them of all these powers? Either all the powers vested in justices and constables (save only their powers as conservators of the peace) are subject to legislative direction, or all the laws in relation to their duties existing at the time of the adoption of the Constitution are become part and parcel of the Constitution itself. Are learned counsel prepared to adopt the latter form of the dilemma? It is quite a mistake to assume that the provision affirming their power as conservators of the peace was an act of supererogation. It is only because such power was to be secured beyond the reach of legislative encroachment, that the Constitution declares they shall be conservators of the peace, and it is just because it was deemed unimportant that their other criminal and civil jurisdictions should be continued to them, that their other powers are left subject to legislative control. It is conceded that whilst justices and constables have jurisdiction in cases of small debts, they are to [**60]  be treated as parts of the judicial power. Divest them of all power, saving their powers as conservators of the peace, would they not remain ministers of justice? As conservator of the peace, it is the office of the constable to prevent crime, to arrest offenders, to bring them to justice. He may arrest on view, in some cases, without warrant. But he acts ordinarily under judicial process. The justice acts judicially when he issues a warrant, when he conducts an examination, when he commits, discharges, or admits to bail. If, therefore, the Constitution had designed to limit the authority of justices and constables to their original common law jurisdictions, the section in relation to these officers would be found in its present position. They would be part and parcel of the judicial department.

Let us next consider what is the character of the police force, which the Mayor and City Council are authorized to create. It is to be a police for the preservation of the public peace, and, therefore, to be endowed with faculties commensurate with its avowed object. But a police force which is to be created by sudden and casual emergency, and is to be dissolved on the subsidence of that [**61]  emergency, would be utterly unavailing. In what respect would an additional police, thus hastily called together, take precedence of the sheriff's posse? It would be nothing more than a legalized rabble, hardly as well disciplined as the mob to which it was opposed. If it is conceded (as is conceded by every provision in this Police Act) that in a populous city it is indispensable that the police shall be trained and disciplined, prompt for action and submissive to command, we must not impute to the Convention the inconsistency of charging the Mayor and City Council with the duty of maintaining the public peace, and, at the same time, of requiring that their police power shall be exercised under circumstances which must be fatal to its efficiency. In the absence of express words, or plain and necessary implication, we cannot presume that any limitation on the power which would so completely embarrass its exercise, was intended. The only expression in the clause from which a limitation is to be inferred, is the word "temporary." But temporary is relative to permanent. The police of justices and constables is permanent, because it is designed to be as lasting as the Constitution. And [**62]  the police to be created by the Mayor and City Council, is declared to be a temporary police, because it is liable to be changed, from time to time, as the exigencies of the city may require. The provision is to be made for the creation and government of a police. The creation of a police may be effected by the enrollment of its members. The government of a police, after its creation, involves its organization, its discipline and its employment, in its destined service. The police is, therefore, to be kept on foot for some time after its creation. But for what space or term of time? So long as the necessity which induced its creation shall continue. And of the continuance of this necessity, as of its original existence, the Mayor and City Council are the exclusive judges. It is made their duty at all times to keep on foot a disciplined police, adapted to the necessity of the occasion. The police is to be created and governed by ordinances to be passed from time to time. In other words, an ordinance is to be passed for the creation of a police, which, when created, is to be continued and governed according to the provisions of that ordinance, until the Mayor and City Council shall deem [**63]  it expedient to pass another ordinance repealing or modifying the first, and disbanding or re-organizing the police thereby originated. Whence, then, the necessity of inferring or presuming an intent on the part of the framers of the Constitution, to reserve to the Legislature any power to provide for the public peace? It can only be induced by a neglect of the duty of the Legislature to provide for the election of justices and constables in numbers adequate to the wants and interests of the people, or by an encroachment on the authority delegated to the Mayor and City Council. If the Legis lature can create a police in the city of Baltimore, a like police may be established in every county in the State. A central police may be established at Annapolis.

If these views are well founded, there can be no difficulty in pronouncing the Police Act to be unconstitutional. The Board of Police thereby created, are empowered to assume control over the justices and constables, and the police of the city. They are to assume the exclusive control and guardianship of the peace of the city, and all conservators of the peace in the city are to act under their orders, and not otherwise. The power [**64]  expressly delegated to the Mayor and City Council by the Constitution, is, in words, respected, but is, in effect, nullified. For the temporary police, created by the city, would immediately pass under the government of the Board.

2. The property which is claimed by the relators is needed by the city for the use of its existing police. If that police has been organized in a constitutional manner, and the property in question is needed for its purposes, it would seem to be too clear for disputation, that it cannot be deprived of that property by any power which is not able, at pleasure, to disband that police. The power to create and to maintain, implies the power to endow the police force thus created and sustained, with every faculty which is needed to ensure its efficiency. To establish, then, the right of the relators to the station-houses and other like properties, even on their hypotheses, it must be shown that the city has no power to create a police which can need the use of such properties. It will not be sufficient to show that the present police is not organized in strict conformity with the requirements of the Constitution. If, as is contended, the Constitution designed [**65]  the creation of a police whose duties should be confined exclusively to the preservation of the public peace, then the ordinance which professes to confer on it other police duties, is simply void, or is void as to the excess. In the last alternative, the police will be actually a peace police and nothing more, and in the former, the Mayor and City Council may yet exercise their power to create a peace police. In either aspect, the question of property resolves itself into this: Have the Mayor and City Council the power to create and govern a police which can require the use of the properties demanded?

We are willing to concede that in the absence of all constitutional limitations, the Legislature would have power to repeal or to modify the charter of the city of Baltimore, and to regulate the use of the city property. But the corporate existence of Baltimore is recognized by the Constitution. The Mayor and City Council are recognized as the repositories of corporate power. Hence the Legislature cannot revoke the charter. But the Mayor and City Council have the power, by ordinance, to create offices, and to provide for election or appointment thereto. In express terms, they have [**66]  the power to create and govern a police for preserving the peace of the city. The powers to tax and acquire property, and to regulate the use of the city property, are necessary incidents. If these incidental powers are denied, the exercise of the powers delegated will become impracticable. Deprive the city of the power to subsist a police, and you disorganize the body. Take from the city its station-houses and like properties, and you render the police inefficient.

In Hoye vs. Swan, 5 Md. Rep., 237, it was declared that the Legislature cannot take away the property of A and transfer it to B. There can be no difference in this respect between a natural person, or a collection of natural persons, and a private corporation. Does the Legislature possess greater power over the property vested in a municipal corporation? As a general proposition, it may be conceded that the Legislature may withdraw, at pleasure, a political franchise granted to a public corporation. But what is a franchise? It may be defined to be a branch of sovereign authority vested in one or more persons, to be exercised by him, or them, for some public end. It is a capacity of action. It is a power to be exercised.  [**67]  Its exercise may result in the acquisition of property; but property thus acquired is no part of the franchise. A repeal or revocation of a franchise, takes away the right of using the powers for the future. But it cannot defeat a title to property acquired in the past exercise of the franchise. An act of incorporation for banking purposes, creates a franchise. No one would say that the right to repeal the charter involves in it the right to appropriate to public uses the original capital, with its accumulated profits. We would be surprised, at the least, by the assertion, that after the completion of our water-works, the Legislature may confiscate them to a public use, and require the profits thereof to be paid into the State Treasury for State purposes, or that our interests as a stockholder in the Baltimore and Ohio Railroad Company may be appropriated, at the pleasure of the Legislature, to the support of public schools in the several counties.

In England, where the authority of Parliament over the franchises of a municipal corporation is supposed to be unlimited, it was denied, on a memorable occasion, that this power could be exercised in derogation of the rights of property.  [**68]  4 Wheat., 559. And Chief Justice Buchanan, in 9 G. & J., 409, The Regent's Case, quotes, with approval, Lord Thurlow's declaration, that the effort made on the part of Fox to remodel the charter of the East India Company, which was undoubtedly a public corporation, "was an atrocious violation of public property, which cut every Englishman to the bone." The case of Terrett vs. Taylor, 9 Cranch, 43, (which will be relied on by the other side,) was a case of a private corporation. It is said by the court: "In respect, also, to public corporations which exist only for public purposes, such as counties, towns, cities, &c., the Legislature may, under proper restrictions, have authority to change, modify, enlarge or restrain them, reserving, however, the property for the uses of those for whom and at whose expense it was originally purchased." Now here we see that the Legislative power over the franchises of a public corporation is not altogether without limit, and that, in respect to property acquired in the exercise of a franchise, there is a duty resting on the Legislature to secure it to those at whose expense it was purchased. The case of The State vs. The Balto. & Ohio R. R. Co., 12 [**69]  G. & J., 400, and 3 How., 535, is a clear authority in favor of the proposition that the Legislature cannot discharge an individual from the obligation of a contract made by him with a county, and by necessary intendment, that it cannot seize upon the property of a county or city purchased by the contributions of its citizens, or with money borrowed on their credit.

Art. 13 of the Declaration of Rights, declares that "every other person in the State, or person holding property therein, ought to contribute his proportion of public taxes for the support of government, according to his actual worth in real and personal property." Now, this Article, in terms, prescribes a rule for individual contributions. But it is a clear deduction from 1 Gill, 302, Waters vs. State, that the aggregate of individuals constituting a local division of the State, are entitled to the benefit of the same rule of equality. But if the State cannot, by the direct exercise of the taxing power, discriminate to the prejudice of Baltimore, on what principle can it seize upon its property, purchased with the avails of taxation, and the loss of which is to be remedied by a second exercise of the taxing power [**70]  by her local authorities?

This power of seizure and confiscation is equally negatived by the Constitution, Art. 3, secs. 46 and 42, and the relators must fail in their present suit, unless it can be shown that they are officers of the city, and are in such capacity to use the property which they demand. Are they officers of the city? They were appointed by the Legislature, and on the Legislature depend for their continuance in office. Their duties are prescribed by the Legislature, and to that body they are accountable for the discharge of those duties. In no sense, whatever, are they municipal officers. They are not made such by the usurpation of our property, under color of appropriating it to our use. The law of property recognizes the right of the owner to dispose of it as his discretion may dictate, and every unnecessary restraint on that right is against natural justice.

This question of property was discussed at large in the New York case of The People vs. Draper, 25 Barb., 344, and 1 Smith, 532. But as it arose in a quo warranto, the question was treated by the Court of Appeals as a subordinate question, and as not properly for consideration. In the Supreme Court,  [**71]  one of the two judges constituting the majority, thought the question was unnecessary. Not one of the judges ventured to affirm expressly and precisely that the Legislature had the power to wrest from the city of New York any part of her property for the uses of the Metropolitan police, or that the Commissioners, because they were to exercise their functions within the city, were, therefore, to be treated as local officers. On the contrary, the constitutionality of that organization was defended on the ground that they were not municipal officers.

3. The appointment of the Commissioners by the Legislature is contrary to Art. 2, sec. 11, of the Constitution, which provides that the Governor "shall nominate, and by and with the advice and consent of the Senate, appoint, all civil and military officers of the State, whose appointment or election is not otherwise herein provided for, unless a different mode of appointment be prescribed by the law creating the office." Under this section, the Legislature might have conferred the power of appointment on the executive, or on the people, or on the local authorities. But it could not take to itself the appointment. This distinction between [**72]  the power to prescribe the mode or manner of appointment and the power of making the appointment, is clearly stated in 7 Ohio, (N. S.,) 560, 566, 567, and it is there shown that whilst the one power is legislative the other is executive. The appointment to a ministerial office is plainly the exercise of executive power, (3 J. J. Marshall, 401,) and, as such, its exercise by the Legislature is condemned by Art. 6 of the Declaration of Rights. Instances are to be found of the exercise of a like power by Legislatures in former times. But those precedents have never received judicial sanction. And there is a marked difference between the Article as it stood in the old and as it stands in the present Constitution. The Constitution of 1776 affirms the abstract proposition, "that the legislative, executive and judicial powers of government ought to be forever separate and distinct from each other." It is in the new Constitution added: "And no person exercising the functions of one of said departments shall assume or discharge the duties of any other." The addition, it is submitted, was made for the purpose of avoiding the pernicious influence of the older precedents. If the Legislature is [**73]  permitted to fill offices of its own creation, there is danger that it will legislate with a view to the extension of its own patronage. Upon the principle of The People vs. Draper, it may combine two or more local divisions, and thus create a necessity for new classes of officers. Upon the principle of the Police Act, it may supersede a constitutional officer, by the creation of another, with powers somewhat greater, or somewhat less, than is possessed by the officer to be superseded. It may and will draw to itself the appointment to all offices created by law, and even within the gift of the executive, by the repeal of the law and the enactment thereof, with verbal changes. It remains with this court to determine whether the Legislature does possess this power of encroachment on the executive department. The question is not settled--nay is not touched--by the case of Davis vs. The State, 7 Md. Rep., 151.

4. By sec. 16, of the Police Act, it is provided, that any one who shall forcibly resist or obstruct the execution or enforcement of any of the provisions of the bill, or disburse moneys in violation thereof, or hinder or obstruct the organization of the Board of Police by violence,  [**74]  or otherwise, or maintain or control, or attempt to maintain or control the present police force of the city, shall forever thereafter be disqualified for holding or exercising any office or employment whatever under the Mayor and City Council of Baltimore, or under that Act. Now, this provision not only disregards the great principle of equality which pervades the Constitution and secures the eligibility of every one to all offices, but directly contradicts Art. 3, sec. 33, of the Constitution, which gives to the Legislature the power to exclude from the privilege of holding any civil or military office in this State, any person who may be "convicted of perjury, bribery or other felony, unless such person shall have been pardoned by the executive." Here we observe, 1st, the disqualification is to be the consequence of conviction; 2nd, the offence must be felony; 3rd, the executive may remove the disqualification. Under the Police Act any act which the Board may be pleased to consider as an hindrance, or obstruction, to the organization of the Board, or its police, is declared to be the unpardonable sin which places the offender beyond the hope of forgiveness.

But it is further [**75]  provided by sec 6, "that no Black Republican, or endorser or supporter of the Helper Book, shall be appointed to any office under said Board."

Excluding the consideration of the support or endorsement of the Helper Book, which may be a tangible act, the prohibition of the Black Republican introduces into our legislation the broad principle of proscription for the sake of political opinion. For the Black Republican is one who entertains certain, or, to speak more accurately, uncertain opinions, on the subject of the relations which exist, or ought to exist, between the white and negro races. The law does not define the boundary between right opinion and error on the subject, nor is an overt act necessary to constitute the offence. The appointing power is left to define for itself what constitutes Black Republicanism in doctrine, and to determine for itself what shall be sufficient evidence that the obnoxious sentiment is entertained by the object of its proscription. That proscription is intended, is apparent from the letter of the Act, and the intolerance which inspires political warfare in these days must assure us that the power will be most liberally exercised.

Now, if [**76]  there is any principle of moral justice which commands the assent of all who appreciate the blessings of social liberty, it is that, for opinions entertained but not expressed, no man shall be called into judgment. But we claim further, as the invaluable birthright of every freeman, that he may express at pleasure his opinions upon all subjects of public policy, restrained only by positive enactment to the contrary. And to render such restraints consistent with liberty, they must arise out of some necessity associated with the morals, peace, order or well being of society; and moreover, they must be expressed in terms which clearly define the defence, so that the citizen, if impeached for a violation of the law, may take the judgment of the court upon his guilt or innocence.

Our objection is aggravated therefore, not lessened by the clouded definition of the offence. If a Legislature in former days had proscribed the Roman Catholic or the naturalized citizen, it is presumed this court would have no difficulty in pronouncing against the constitutionality of the provision. In principle the proscription is the same. In degree the difference is, that whilst the test of religion or [**77]  of birth is susceptible of evidence, the test created by the Police Bill rests in the pleasure of the Police Board. What is Black Republicanism? A Black Republican may be defined to be one who thinks the area of slavery ought not to be enlarged. Again, he may be defined to be one who thinks Congress has power to legislate over the subject of slavery in the territories; and it is quite possible that, in the estimation of the Board, he is to be placed in the same category who concedes to the territorial Legislature any power over the subject. It is certain that in the letter of the proscription there is an elasticity which will, with willing minds, justify its expansion over two-thirds of the population of Baltimore.

If then these disqualifying clauses are operative parts of the Act, the whole Act must be pronounced unconstitutional. For the legal consequence must be the same, whether the law contemplates an unconstitutional object or a lawful object by the instrumentality of agents unconstitutionally selected. It is, therefore, argued on the other side, that those objectionable clauses are to be disregarded as inconsistent with the oath of office to be taken by the Commissioners,  [**78]  as prescribed by the 3rd sec. of the Act. Now, we are instructed by Chief Justice Marshall in Pennington vs. Coxe, 2 Cranch, 52, "that a law is the best expositor of itself--that every part is to be taken into view for the purpose of discovering the mind of the Legislature, and that the details of one part may contain regulations restricting the extent of general expressions used in another part of the same Act, are among those plain rules laid down by common sense, for the exposition of statutes which have been uniformly acknowledged." Lord Coke had previously said, (Coke, Litt., 381:) "It is the most natural and genuine exposition of a statute, to construe one part of the statute by another part of the same statute; for that best expresseth the meaning of the makers." The construction is to be such that, if possible, no clause, sentence, or word, shall be superfluous, void or insignificant. Let us apply these principles to the clauses of the Police Act. The 3rd sec. directs the Commissioners to take an oath that they will in no case appoint any policeman, for or on account of the political opinions of such policeman, or for any other cause than the fitness of such person. Sec. 16,  [**79]  which disqualifies any person from holding office who shall have resisted the execution of the law, virtually declares that such person is unfit for the office of policeman. And sec. 6, which provides that no Black Republican, or endorser or supporter of the Helper Book, shall be appointed to any office under the said Board, virtually declares that the opinions entertained by such person, render him unfit to be appointed to office. There is then no incongruity between these several sections.

The present position of these several clauses can have no influence on construction. Let us then change their collocation; and let us see what effect is produced on the argument. Let the clauses in secs. 16 and 6, above referred to, be introduced immediately after the clause in sec. 3, prescribing the oath. Let them form parcel of the oath itself. The Commissioner will then swear, "that in no case will I appoint any policeman for or on account of his political opinions or for any other cause than the fitness of such person, but I will deem unfit for office any person who shall have resisted the execution of the law, and I will not appoint any Black Republican or endorser or supporter of the [**80]  Helper book." Thus, the court will perceive, that by bringing these several clauses into juxta-position, all pretext for the objection of inconsistency is removed. As parts of one oath they stand in faultless harmony. The oath, as it stands in the Act, obliges the Board in no case to appoint for opinion's sake. But it does not provide that he may not be rejected because of his political opinions. On the other hand, the Helper clause does no more than oblige them to exclude from office all Black Republicans. The proviso does not say who shall be appointed. It contents itself with declaring who shall not be appointed.

5. Assuming then, that the Legislature intended to exclude from office all those who are, in the estimation of the Board, brought within the scope of the disqualifying clauses referred to, we are to inquire whether they may be disregarded, or whether their presence vitiates the entire law? And this question resolves itself into another, to wit: whether these objectionable clauses are so independent of the other provisions of the Act that they may be expunged or disregarded, without affecting the vitality of the residue of the Act? or, whether these several clauses [**81]  of the Act are not so dependent, as conditions, considerations or compensations, the one for the other, as to constitute one inseparable whole? 2 Gray, 99. 1 Louisiana Ann. Rep., 116. Now the objectionable clauses define the qualifications of the agents to whom the Legislature intended to confide the execution of the law. They were to possess certain moral qualities, and political affinities, in the absence of which it is implicitly declared there would not be an adequate guarantee for the exercise of the very delicate functions with which the officers of police were to be entrusted. You cannot sever one part of the qualification from another part of the qualification. You cannot select, as the ministers of the law, a different class from that which is defined by the law itself. Apply the argument to the case of the Commissioners. They are named in the law. Let it be assumed that, in this particular, the Legislature transcended its authority. As an inevitable consequence, the entire law would be avoided. No power of substitution would result to the Executive. By parity of reason, no dispensing power can be exercised by the Commissioners in the selection of their agents. They are to [**82]  exercise the power delegated to them in the manner and form in which it has been delegated. And if there exists any constitutional obstacle to the exercise of the power modo et forma as the same has been delegated, the consequence must be nullity. The law must fail of effect for want of the necessary agents to exercise its functions. There is nothing in Davis vs. The State, 7 Md. Rep., 160, inconsistent with these views. The point there decided was, that an entire statute is not to be avoided by the introduction of a single foreign or irrelevant subject into it, on the pretext that such subject is not plainly indicated by the title. On the contrary, the guarded terms of the proposition give strength to our argument. The exceptionable matter must be foreign or irrelevant to the main subject of the statute, and it is declared, that "if an Act of Assembly be composed of a number of discordant and dissimilar subjects, so that no one could be clearly recognized as the controlling or principal one, the whole law would be void." Now, here we have certain police powers delegated to a force, which is to possess certain qualifications, and to be selected by a particular commission. If the law [**83]  is incapable of execution in regard to the police power designed to be exercised, or the appointing power, or the qualifications of the police force, in any one or other of these particulars, the whole law must fail.

Johnson, Campbell, Norris and Wallis, on the part of the appellees, submitted the following brief and points:

Before proceeding to lay down the propositions proposed to be argued on behalf of the relators in support of the judgment of the court below, it ought to be stated, that while the Act, referred to in the petition, creates the Board of Police, and defines some of its powers and duties, other duties and powers have been conferred on it by another law passed at the same session, regulating elections in the city of Baltimore. This latter Act is grounded on sec. 6, Art. 10, of the Constitution, which authorizes the Legislature to regulate, by law, all matters relating to the judges, time, place and manner of holding elections, and making the returns thereof, provided that the tenure and term of office, and the day of election, shall not be affected thereby. Accordingly, without touching the term or tenure of office, or the day of election, further than to [**84]  declare between what hours the polls shall remain open, the Act last alluded to, directs the time, place and manner of holding elections in Baltimore. Among other things, it requires the Board of Police to divide the wards into election precincts, to appoint judges of elections and their clerks, and provides that no election in the city, whether State, or Federal, or municipal, shall be valid, unless held under and in conformity to it, and under and subject to the provisions of the Act referred to in the petition establishing a permanent police in the city of Baltimore, and under and subject to the control and command, as to all police purposes of the Board of Police of the city of Baltimore.

All the questions at issue range themselves under two heads: the first relating to the authority of the Legislature to create a Board of Police, the members of which shall be appointed by itself; and the second relating to the powers conferred on the Board.

As regards the ability of the General Assembly to create and fill an office, it is sufficient to refer to two Articles of the Constitution, viz:

Art. 2, sec. 11: "He (the Governor) shall nominate and, by and with the advice and [**85]  consent of the Senate, appoint all civil and military officers of the State, whose appointment or election is not otherwise herein provided for, unless a different mode of appointment be prescribed by the law creating the office.

Art. 3, sec. 24: "No Senator or delegate, after qualifying as such, shall, during the term for which he was elected, be eligible to any office which shall have been created, or the salary or profits of which shall have been increased during such term, or shall, during said term, hold any office or receive the salary or profits of any office, under the appointment of the Executive or Legislature. 7 Md. Rep., 161, Davis vs. The State.

Referring to the particular provisions of this Act, supposed to be unconstitutional, the answer specifies them as follows:

1. In general, those which withdraw from the city any of the powers vested in it at the time of the adoption of the present Constitution, it being insisted that all such powers were recognized and confirmed to the corporation by that instrument.

2. The provision which puts under the control of the Board the existing police force in the city. This city police is affirmed to be a temporary [**86]  additional police appointed by the city authorities under the last clause of sec. 19, Art. 4, of the Constitution.

3. The provision authorizing the Board to appoint a permanent police in Baltimore, it being asserted that the Constitution has defined the permanent police in that city to consist of the justices of the peace and constables.

4. The provision making it the sheriff's duty to act under control of the Board in the preservation of the public peace and quiet, and to call out the posse, if required by them, and enabling the Board, whenever the exigency, in their judgment, warrants, to assume the control and command of all conservators of the peace in the city of Baltimore.

5. The provision authorizing the Board to call out the militia in the city, to aid them in preventing threatened disorder or opposition to the laws, or in suppressing insurrection, riot or disorder on election days, and at other times, which is supposed to trench on the Governor's prerogative.

These objections exhaust the constitutional impediments in the way of the Act, but it is suggested that, for other reasons, it ought to be pronounced a nullity in law. These other reasons are:

6.  [**87]  That the Board are declared to be authorities of the city, and the city is made responsible for their defaults, while having no control over them.

7. That the city is burdened with the expenses of the Board and the police, and bound to raise the necessary funds, without power to supervise the estimates, and coerced to discharge this duty by being inhibited from collecting its ordinary taxes, unless it collects, at the same time, the police tax, and subjected, in case it fails to meet the Board's requisitions for moneys, to the issue of certificates in its name, which may be pledged or disposed of by the Board, and shall be receivable in payment of city taxes.

8. That the disability to hold office under the city, or the Act which is visited by the terms of the latter upon a forcible resistance to its provisions, is a disfranchisement unknown to the Constitution, and contrary to its spirit.

9. That the Fire Alarm Telegraph and other things of which the use is sought by the mandamus, belong to the city, and were purchased and paid for by it out of its proper funds for corporate uses and purposes, and that the exclusive use of all these things is necessary to the discharge [**88]  of the duties of the corporation.

Before proceeding to notice in detail these several suggestions, it may be proper to advert to the fact that they all proceed upon the hypothesis that the police powers delegated to the Board, are restricted in their exercise to the limits of the city; but it will be observed, by referring to the Act, that their powers are not so limited. In case they have reason to believe that any persons within the city intend to commit any breach of the peace, or violation of law or order beyond the city limits, upon the Chesapeake bay, or other place on land or water in this State, it shall be their duty to cause such persons to be followed, and to suppress or prevent the meditated outrage, and arrest the offender, delivering him, if the crime be committed, to the proper authority, for trial and punishment; and they may also arrest, in any part of the State, any person charged with the commission of any crime in the city of Baltimore, and against whom criminal process shall have issued. Their authority, therefore, is not a merely local authority, but, in the cases specified, extends over the whole State; and for this, therefore, if for no other reason, it [**89]  is impossible to identify the Board with the mere local police functionaries of Baltimore. People vs. Draper, 25 Barb., 374, and same case in error in 15 New York, 543.

1st. The first objection is, that the provisions of the Act infringe the constitutional powers of the Mayor and City Council of Baltimore, which was vested with all power of legislation for city purposes, according to the wants and wishes of the inhabitants of the said city; which city government, thus erected, endowed and established, is fully recognized and essentially confirmed to the city and its inhabitants by the existing Constitution; and that the Act renders it a different corporation, with different powers from those recognized and confirmed to the city by the existing Constitution. That the Mayor and City Council of Baltimore is recognized as a municipal corporation in the Constitution, is undoubtedly the fact, for it is twice mentioned in sec. 19, Art. 4, of the Constitution, and elsewhere in the instrument, and power is given to it to appoint constables in case of vacancies, and also to provide for an additional temporary police to preserve the public peace. But it by no means follows that such a recognition,  [**90]  with such a grant of power, amounts to an incorporation of the city by the Convention, with all its powers, as then conferred by statute. The construction is just the reverse. By the grant of two specified powers and no more, the Constitution excludes the notion of any other than the specified powers being derived from that instrument; and such a construction is fortified by its other provisions. The analogous governing bodies in the counties--the County Commissioners--though so named by the Constitution, and deriving from it a permanent existence, are yet, by sec. 8, Art. 7, made wholly dependent upon the Legislature for their powers and duties; and Art. 37 of the Bill of Rights, while confirming, in terms, to the city of Annapolis its rights agreeably to its charter, makes them expressly subject to alterations by the Legislature. That the mere mention of the city elsewhere in the Constitution, as an existing local division of the State for judicial and representative purposes, ipso facto, embodies its charter in the fundamental law, so as to place the whole beyond the pale of legislative power, is a proposition which, it is presumed, cannot be seriously advanced. Breese, 120, 121,  [**91]  Coles vs. County of Madison. 4 Scammon, 273, People vs. Wren. 12 Louisiana Ann. Rep., 515, Layton vs. City of New Orleans. R. M. Charlton, 438 to 440, State vs. Dews. 15 New York, 541, 542, 543.

2nd. The second objection is that the Act puts under the control of the Board, the existing police of the city of Baltimore, consisting of a marshall and other officers and men, which existing police is affirmed to be an additional temporary police appointed by the city authorities, under the last clause of sec. 19, of Art. 4, of the Constitution. It is conceded that this section authorises the city to provide by ordinance for the creation and government of an additional temporary police, for the preservation of the public peace, but it is denied that the existing police in the city, of which the Board are authorized to assume the control, is such an additional temporary police, or that it was created under the section alluded to. The character of the force must be determined by the municipal legislation which called it into existence. This police was first created by an Ordinance approved January 1st, 1857, and entitled, "An Ordinance to establish a Police for the city of Baltimore."  [**92]  Its first section abolishes the existing watch and police systems, and repeals all ordinances for the establishment and regulation of the same, and with this introduction it proceeds to create and organize a new police system, consisting of 44 officers of various grades, and 363 men, including turnkeys and detectives, all of them to hold their appointments for a year, and provided with batons, revolvers and muskets, at the city's expense. The permanent character of this force is further illustrated by sec. 21, which authorises the Mayor to call out and arm any number of special police which he may deem necessary to preserve the peace, but declares expressly that such special police officers shall be retained no longer than is necessary for the protection of the peace on the occasion. The special police, when appointed under this section, constitute a police additional to that created by the other sections and are temporary, because only employed to preserve the peace in an emergency, and ceasing when peace is restored, while the force described in the other sections has no temporary function to fulfil, but is required by sec. 2, to do duty by day and night throughout the year, and [**93]  to enforce the Ordinances and Acts of Assembly, and exercise the general functions of a police organization. Such was the character of the ordinary city police as impressed on it by the Ordinance of January 1st, 1857, creating it and superseding all others, and such it continued to be at the time of the passage of the Police Act, by virtue of the Revised Ordinances of June 11th, 1858, in force when that Act passed. This second and subsisting Ordinance is likewise entitled, "An Ordinance to establish a Police for the city of Baltimore," and is, in fact, with some immaterial variations, a re-enactment of the Ordinance of January 1st, 1857, containing, among other things, a repetition, in terms, of the 21st sec. of that Ordinance, which provides a special police for extraordinary occasions, with no other power than that of preserving the peace. Nothing, therefore, can be plainer than that the police force in the city of Baltimore, at the time of the passage of the Police Act, consisting, as described in the answer, of 44 officers and 363 privates, was a permanent as contra-distinguished from an additional temporary police. It was never called by the latter name until it was so called [**94]  in the answer in this case, and the language of the Ordinances which brought it into existence and continued it, establishes the erroneousness of this new appellation. The objection, therefore, under consideration, which puts the unconstitutionality of the Act on the ground of its giving the Board control of the present police, because such a police is a temporary and additional police, fails, for the reason that the police is not a temporary and additional force, but a permanent police, and so not created or upheld by virtue of sec. 19, of Art. 4, of the Constitution.

3rd. The third objection is that the Act empowers the Board of Police to appoint a permanent police in Baltimore, though the Constitution has determined that the permanent police of that city shall consist of its justices of the peace and constables. Sec. 19, of Art. 4, of the Constitution, is relied on for this view. It is said that the last clause in that section authorizes the Mayor and City Council of Baltimore to provide, by ordinance, for the appointment of a temporary additional police to preserve the public peace, and as an additional police implies another police, to which the former is to be additional,  [**95]  it is contended that we must look to the prior part of the section for the permanent body which is thus to be temporarily added to. The prior part of the section provides for the election of justices and constables, and they are consequently assumed to have been, in the contemplation of the Convention, a permanent police, the existence of which, derived from such a source, is supposed to negative the power of the Legislature to create, or authorise the creation, of any other permanent police. If the justices and constables were meant to be a permanent police, they are not so declared in terms. And to supply this defect, it is urged that they are declared to be Conservators of the peace, and that these words make them policemen. But this language clothes them with no other character which they did not possess without it, and merely expressed what was implied by the offices they hold. Both justices and constables, as well as judges and the sheriff, are, virtute officii, conservators of the peace. 2 Hawk. Pleas of the Crown, 43, 44, 45. These words, therefore, accomplish nothing that was not accomplished by the mere mention of justices and constables, and add, consequently, nothing to [**96]  the force of those terms. If they could be supposed to do it, and their use were attended with the consequences claimed, it would follow from sec. 6 of the same Article, which makes the judges of the Court of Appeals, of the Circuit Courts, and of the courts of the city of Baltimore, conservators of the peace, that all these high functionaries are policemen as well as the Baltimore justices and constables. All that the present Constitution has done, in regard to justices and constables, is simply to change the mode of their appointment, leaving their powers and duties (though not the jurisdiction of the former) to the discretion of the Legislature. How can it be possibly inferred from such dealing with these officers, that the Constitution meant to invest them with a character which they never possessed before, and which is absolutely inconsistent with the discharge of their constitutional functions?

The title of the 4th Article, and its first section, are the best guides to its true construction. Its title shows that it dealt with the judiciary department, and its first section declares that the judicial power shall be vested in a Court of Appeals, in Circuit Courts, in such [**97]  courts for the city of Baltimore as may be thereinafter prescribed, and in justices of the peace. The scope of the whole Article is the creation of judicial tribunals and their accessaries in the administration of justice. Without clerks, or registers and sheriffs, the courts would be unfurnished for the discharge of their functions, and so these ministerial officers are given them, while for the same reason, in the section which provides for the election of justices, they are supplied with their necessary attendants in the constables. In 1 Burns' Justice, Title Constable, sec. 5, it is said: "It hath always been holden that a constable is the proper officer to a justice of the peace, and bound to execute his warrants." The general intent and purpose of the Article, therefore, in which the section about justices and constables is found, defines the construction to be given to it, and negatives any presumption that the functionaries named in it were to be such as are wholly unconnected with the administration of justice. For it must not be overlooked, that policemen are altogether a different class of officials from those whose duty it is to attend on the tribunals of justice. These [**98]  latter are put in motion by writs or warrants. The policeman, on the contrary, is rather an arm of the executive than the judiciary, and in guarding the public health, in removing nuisances, in protecting strangers, emigrants and travellers, and many other instances, his duty is rather to prevent crime and trespasses on person and property, than to punish or bring to justice the one or the other. And this view of the essential character of a police shows how impossible it is to consider the Constitution as having regarded in such a light the justices and constables. The 19th sec. groups them together, and if the word "additional," in its last clause, refers to them, it refers to both of them, as must be conceded, and is, in point of fact, conceded by the answer. Now, unreasonable as it would be to adopt a construction, even in regard to constables, which would make it their duty, instead of attending on the justice for the execution of his warrants, to be constantly engaged, by day and night, in other functions consuming all their time, it becomes wholly indefensible when applied to the justices. How would it be possible for them to fulfil their judicial duty, if obliged to be always [**99]  absent from their place of business in the discharge of the multitudinous avocations of a policeman? The Acts of 1847, ch. 77, sec. 10, and 1854, ch. 225, imposing upon them office hours and official localitis, would, by such a construction, be absolutely set at naught.

If then sec. 19, of Art. 4, creates no police what force was in view of the Convention when, in the conclusion of that Article, it authorizes the Mayor and City Council of Baltimore to create an additional police? To what police was the one so created to be additional? The answer is a very plain one. It was to be additional to the permanent police then existing in the city of Baltimore under merely legislative sanction, and it was to be temporary, because its existence was only authorized for a single purpose, viz., that of preserving the public peace in case of necessity, and, therefore, necessarily limited to the duration of occasional outbreaks which interrupted, or threatened to interrupt, the public quiet. At the time of the adoption of the Constitution there was in existence, in the city of Baltimore, a force known by the name of the city police, created long before and actually subsisting at the time under [**100]  a revised Ordinance of 1850, (Rev. Ord. of 1850, page 98.) The provisions of this Ordinance establish that the force organized by it was a permanent police force in the proper and ordinary acceptation of that term, clothed with police powers and duties. The authority to make it was derived from the Act of 1812, ch. 194, which empowered the Mayor to appoint, during pleasure, not less than 25, nor more than 100, bailiffs to aid in preserving the peace, maintaining the laws and advancing the police and good government of the city, and from the Act of 1817, ch. 148, sec. 3, which enlarged the powers of these bailiffs and gave their appointment to the Mayor and Councils. Under these Acts Ordinances were passed, from time to time, until in 1838, (Rev. Ord., 1838, page 112,) an Ordinance was enacted, entitled "An Ordinance for the appointment of a High Constable, City Bailiffs and for other purposes," in which the force was organized under a head denominated "Chief of Police," and the force itself called by the name of the City Police. This Ordinance was followed by the Ordinance revised in 1850 and above referred to, which like its predecessor embodies, arranges and describes the bailiffs [**101]  of the city as the police of Baltimore. Nothing, therefore, can be clearer than the existence in 1850 of a permanent police in the city of Baltimore, dating from the Act of 1812, and charged with the performance of ordinary police duties. It would be a waste of time to do more than say, that it must have been to this force that the police provided for in the close of sec. 19, of Art. 4, was to be additional. A further ground for the same conclusion is furnished by the fact, that during the whole period, from 1812 to 1850, justices and constables were discharging their duties, civil and criminal, in the city of Baltimore; were conservators of the peace as now and were quite distinct from the police; never known by that appellation, nor clothed with the powers or burthened with the duties belonging to such a force. This simple and obvious construction of the Constitution, is sanctioned by the subsequent conduct of all parties concerned. The Legislature by the Act of 1853, ch. 46, entitled, "An Act to provide for the better security of life and property in the city of Baltimore, by increasing and arming the police thereof," repealed, and in repealing recognizes, the then continuing force [**102]  and operation of the Act of 1812, ch. 194, which limited the appointment of city bailiffs to the number of one hundred, and at the same time that it left the number to the unrestricted discretion of the Mayor and City Council, authorized the arming of the city police. And the city authorities, by the Ordinance of 1857, already referred to, acted upon the powers conferred by the Act of 1853, and, for the first time in their history, appointed more than 100 policemen and gave them arms. If the theory now advanced be correct, that the justices and constables are by the Constitution made the permanent police of the city, the Act of 1853 was unconstitutional, and its passage, and the city's action under it, were not merely an error, but worse, because an unauthorized force was equipped with deadly weapons in pursuance thereof. Nor does it appear alone by the positive enactments of 1853, that the Legislature treated, and meant to treat the permanent police for Baltimore, as wholly independent of the justices and constables. The same intention had already been made negatively manifest by the Act of 1852, ch. 274. This Act passed at the first session after the adoption of the Constitution,  [**103]  assigned to the whole city of Baltimore only twenty-four justices and forty-four constables, being sixty-eight in all--thirty-two less than the number of the police force already existing under the Acts of 1812 and 1817. The designation of a number so absurdly small for the wants of a population which had more than doubled since these last named Acts were passed, is, of itself, a conclusive demonstration that the justices and constables were regarded only in the light of their ancient and ordinary capacity and functions, and with no reference whatever to the extraordinary position now sought to be assigned to them. The date of the Act of 1852, gives to its provisions all the weight of a contemporaneous constitutional interpretation, and the number of the justices and constables then designated has not been enlarged.

If these observations be correct, the construction of sec. 19, of Art 4, of the Constitution is not open to any doubt. But, even if it were conceded that the construction is doubtful, the result would practically be the same. Nothing short of a clear denial of power to the Legislature can incapacitate it for performing the function for which government is mainly instituted--the [**104]  protection of life and property. Such a denial may no doubt be implied as well as expressed, but whether in one shape or the other, it must be too plain for controversy. 25 Barb., 374, People vs. Draper, and same case in 15 New York, 534, 543, 546. 5 Cowen, 540, Presbyterian Church vs. Mayor, &c., of New York. 18 How., 356, Dodge vs. Woolsey. 6 Wheat., 596, Goszler vs. Corporation of Georgetown. 3 H. & J., 322, Partridge vs. Dorsey. 9 Wheat., 204, Gibbons vs. Ogden. 7 Gill, 325, Day vs. The State. 19 Barb., 83, De Camp vs. Eveland. 2 Scammon, 81, 95, Field vs. The People. 11 Iredell, 560, 563, Mills vs. Williams. R. M. Charlton, 432, 439, State vs. Dews. 13 B. Munroe, 22, 23, Slack vs. Maysville Road. 7 Md. Rep., 146, Manly vs. The State. 12 G. & J., 431, State vs. Balto. & Ohio Railroad Co. 9 Geo., 527, Shorter vs. Smith. 2 G. & J., 256, State vs. Wayman. 9 Md. Rep., 328, Buckingham vs. Davis. 12 Louisiana Ann. Rep., 515, Layton vs. City of New Orleans. 5 Gill, 231, Gordon vs. Mayor & C. C. of Balto. Ibid., 393, 396, Alexander vs. Mayor & C. C. of Balto. 10 Missouri, 410, Baldwin vs. Green. 13 Missouri, 414, St. Louis vs. Allen. 11 Louisiana Ann. Rep., 370, New Orleans Draining Company's [**105]  Case. 9 Gill, 305, Baugher vs. Nelson. 13 Conn., 125, Pratt vs. Allen. 6 Gill, 292, Mayor & C. C. of Balto. vs. Balto. & Ohio Railroad Co. 6 California, 364, 365, Ross vs. Whitman. 21 Geo., 86, Savannah vs. Hussey. 10 How., 534, East Hartford vs. Hartford Bridge Co. 17 Geo., 56, Hamrick vs. Rouse. 16 Pet., 610, Prigg vs. State of Pennsylvania. Ibid., 411, Martin vs. Waddell. 2 Md. Rep., 449, Wright vs. Wright. 11 Pet., 547, Charles River Bridge vs. Warren Bridge. 1 G. & J., 474, Crane vs. Meginnis. The following Acts, passed since the adoption of the present Constitution, show the exercise by the Legislature of the power to appoint police officers in other parts of the State besides the city of Baltimore: 1854, ch. 44, sec. 5, ch. 282, sec. 8; 1856, ch. 177, ch. 312; 1858, ch. 73, ch. 166, ch. 373. And in the volume of Public Local Laws, adopted at the last session of the General Assembly, will be found numerous instances of similar legislation.

4th. The fourth constitutional objection is to the provision making it the sheriff's duty to act under the Board in the preservation of the public peace and quiet, and to call out the posse, if required by them, and enabling the Board,  [**106]  whenever the exigency, in their judgment, requires it, to assume the control and command of all conservators of the peace in the city. There is no clause in the Constitution giving to any one conservator of the peace the control of any other, and, least of all, to the sheriff, for sec. 20 of Art. 4, which mentions the office and provides for filling it, does not describe him as a conservator of the peace, though that title is conferred on the judges, justices and constables. Yet there can be no doubt that he is a conservator of the peace, by virtue of his office and the common law, and so are the judges, justices and constables in Baltimore by express designation. The very existence of so numerous a body of functionaries, charged with a single duty and independent of each other, calls for such a regulation as shall cause them to work together in harmony, and nothing in the Constitution forbids such an arrangement, which is eminently calculated to make effective its provisions as to the preservation of the public peace. 25 Barb., 362, People vs. Draper. R. M. Charlton, 404, 407, 432, 440, State vs. Dews. 3 Humph., 482, Haynes vs. The State. 10 How., 416, Butler vs. State of Pennsylvania.  [**107]  2 Sandford, 369, 375, Connor vs. Mayor & C. C. of New York. 15 Ala., 523, Benford vs. Gibson.

5th. The fifth and last constitutional objection is, that the power vested in the Board to call out the militia in certain cases, is an interference with the Governor's constitutional prerogative under sec. 9 of Art. 2 of the Constitution. There is nothing in this provision which looks like exclusion of the executive authority in regard to the calling out of the militia. Its terms are permissive only; and, in other States, where a similar power is lodged in the executive, it has been the uniform construction that the Legislature is competent to direct in what cases and by whom the militia, or a part of it, may be ordered on duty. And such has always been the practical construction in this State of the power in question. The 33rd section of the Constitution of 1776, gave the Governor, "alone, the direction of the militia;" yet, under it, Acts were passed making it the duty of subordinate officers to bring their commands into the field on the requisition of certain civil officers. 1798, ch. 100, sec. 10; 1807, ch. 128, sec. 6; 1813, ch. 19, secs. 2, 4; 1816, ch. 193, sec. 18; 1823, ch.  [**108]  188, sec. 70; 1834, ch. 251, sec. 57; 1835, ch. 14, sec. 9, and ch. 107.

The remaining objections to the Act rather concede that there is no constitutional foundation for them, but that they repose on some higher law.

6th. The sixth objection is to the declaration contained in sec. 19 of the Act, that the Board shall be considered as one of the city authorities; and it is insisted that the city ought not to be made liable for the defaults of those over whom it has no control. Upon the assumption of the answer, that the justices and constables are the permanent police of the city of Baltimore, and so charged with the preservation, ordinarily, of the public peace, the same state of things exists. The corporation of Baltimore neither appoints nor controls the justices or the constables, (except in the case of a vacancy in the office of constable,) and the power to create a "temporary" police, exists as well under the Act now in controversy, as under the construction assumed on the other side, to be the true one. But the ground of the objection is altogether untenable. There is no inherent right in the citizens of any particular locality--and certainly none in any municipal corporation--to [**109]  elect or choose their own functionaries. Their existence as a separate organization for local purposes, is derived from, and is wholly dependent on, the legislative will; and that will determines not merely what powers of local government shall be delegated, but to whom the delegation shall be made. In whatever way appointed, the local functionaries represent the citizens of the locality only, because the State authorizes them to act for that portion of its citizens. The Board of Police, therefore, within its sphere, is just as much the representative of the people of Baltimore as the corporation. 13 B. Monroe, 23, Slack vs. Maysville Road. 21 Penn. State Rep., 162, Sharpless vs. Mayor of Philadelphia. But even if it were otherwise, the question is one of expediency, merely, and, therefore, not of judicial cognizance.

7th. The seventh objection assails the law, bccause it calls on the city to raise taxes without giving it a voice in fixing their amount, and contains provisions to coerce obedience to this direction. With the same propriety, the city might demur to collecting the State tax from the citizens of Baltimore, and assert an inherent right to tax without State authority.  [**110]  That the taxing power is exclusively in the Legislature, under the Constitution, is undeniable. The 12th Art. of the Bill of Rights provides, that "no aid, charge, tax, burden or fees, ought to be rated or levied under any pretence, without the consent of the Legislature." It is only by the consent, therefore, of the Legislature, that the corporation of Baltimore can levy and collect taxes under the Constitution; and it exercises the power to tax under such limitations and restraints as may be imposed by the Legislature. 13 B. Monroe, 25, 26, 27, Slack vs. Maysville Road. 3 Kernan, 143, Guilford vs. Supervisors of Chenango Co. Instances of just such legislation as that complained of, are to be found throughout the Acts of Assembly. Act of April, 1782, ch. 39; 1797, ch. 73; November, 1796, ch. 68, sec. 14, (the first city charter;) 1805, ch. 91, 1816, ch. 193, and ch. 218, sec. 2; 1817, ch. 142, sec. 5; 1818, ch. 141, sec. 2; 1823, ch. 187; 1834, ch. 151; 1837, ch. 24; 1854, ch. 144; 1856, ch. 280; 1858, ch. 39, and ch. 91.

8th. The eighth objection is to the disfranchisement for city offices, or offices under the Act, of those who forcibly resist it. The language of the objection [**111]  concedes that there is no express provision of the Constitution violated by this provision. It is said to be unknown to that instrument, and contrary to its spirit. As the Constitution does not define the qualifications of those who are to hold office under the city or Act in question, it is clearly within the power of the Legislature to define those qualifications in any way it pleases. 4 Md. Rep., 223, Thomas vs. Owens. 3 Cowen., 703, 706, Barker vs. The People.

9th. The ninth and last objection to the Act is, that it requires the city to allow the use of the Fire Alarm Telegraph and other things which belong to it, for the service of the new police. There is no allegation that these things were a gift to the city, or conveyed to it on any special trusts. They are averred to belong to it absolutely, and to have been purchased for corporate uses and purposes, and paid for out of the proper funds of the corporation. They were acquired, therefore, as the ordinary fruits of taxation, by the exercise of powers derived from the State for public purposes, and are, consequently, in no sense, private property. The theory which seeks to make them private property, confounds the distinction [**112]  between public and private corporations. It has been settled in this State, and in the other States, and by the Supreme Court, that municipalities are public corporations, and that in regard to the property acquired by them for public purposes, through public instrumentalities, the Legislature has complete and plenary power of direction and disposition. The claim of the petition is only to use the property in question, as it is used by the existing police, and the concession of the answer that it is used by the existing police, is an admission that it may be used by the new police without destroying or impairing its use for any other necessary corporate purpose. Mayor & C. C. of Balto. vs. Lemmon, decided by the Court of Appeals in 1838, and not reported. 9 G. & J., 401, Regents' Case. 12 G. & J., 440, State vs. Balto. & Ohio Railroad Co., and same case in 3 How., 550. 10 How., 535, 536, East Hartford vs. Hartford Bridge. 8 Md. Rep., 101, 102, Mayor & C. C. of Balto. vs. Root. 4 Wheat., 660, 661, Dartmouth College Case. 2 Kent., 275. 3 New Hamp., 530 to 535, Bristol vs. New Chester. 8 New Hamp., 323, Londonderry vs. Derry. 34 New Hamp., 275, Berlin vs. Gorham. 3 Williams, (Vt.,) 12,  [**113]  13, 18, 19, Montpelier vs. East Montpelier, et al. 23 Conn., 419, Town of Granby vs. Thurston, et al. 24 Wend., 69, Thomas vs. Leland. 3 Hill, 539, Bailey vs. Mayor, &c., of New York. 25 Barb., 366, People vs. Draper. 21 Penn. State Rep., 202, Moers vs. City of Reading. 13 B. Monroe, 26, 33, Slack vs. Maysville Road. 17 Geo., 59, 60, Hamrick vs. Rouse. 22 Geo., 531, 536, Dart, et al., vs. Houston, et al. 12 Louisiana Ann. Rep., 515, Layton vs. City of New Orleans. 11 Humph., 583, Daniel vs. Mayor & Aldermen of Memphis. Breese, 120, 121, Coles vs. County of Madison. 4 Scammon, 273, 275, 277, People vs. Wren. 11 Iredell, 563, Mills vs. Williams.

Campbell and Johnson, for the appellees, argued, at length, in support of the points presented in the aforegoing brief.

In reference to the power of the Legislature to appoint the Commissioners, they insisted that the two clauses of the Constitution, referred to in the brief, and the decision in Davis vs. The State, 7 Md. Rep., 151, were conclusive of the question. But they further insisted that the power of appointment to office was not, under our form of government, and never has been, a purely and inherently executive function. The [**114]  6th Art. of the Bill of Rights of the Constitution of 1776 and 1836: "That the legislative, executive and judicial powers of government ought to be forever separate and distinct from each other," asserts the general principal of the separation of these several departments, in just and strong language as the corresponding Article in the present Declaration of Rights, and yet it was never supposed that it prohibited the Legislature from making appointments to office. The Statute Books of the State are full of instances of such legislation. As examples they referred to the Acts of 1782, ch. 39; 1797, ch. 73; 1805, chs. 91, 92 and 114; 1803, ch. 44; 1804, ch. 82; 1807, ch. 160; 1816, chs. 123, 218, 232 and 250; 1817, chs. 115, 130, 131 and 132; 1834, ch. 151; and 1835, ch. 58. In the case of Crane vs. Meginnis, 1 G. & J., 476, the court define and explain the meaning of this political maxim in the 6th Art. of the Dec. of Rights, and say that it has made its appearance, in some form, in all the State Constitutions formed about the time of the war of the Revolution, and is said to have been borrowed from Montesquieu's Spirit of Laws, 181; that in whatever terms they have adopted it, in none [**115]  of these Constitutions are the several departments kept wholly separate and unmixed; that in each of them it seems to have been the intention to engraft this invaluable maxim of political science on their respective systems only so far as comported with free government, and to prohibit the exercise by one department of the powers of another department, or to confine each department to the exclusive exercise of its own powers; and that the inhibition goes to the practical exercise of powers conferred by the Constitution and to be used after it is in operation, and does not apply singly to the original distribution of powers among the departments of the government. The case of the State, ex rel. Attorney General vs. Kennon, 7 Ohio, (N. S.,) 546, cannot aid the appellants, for there was in the Constitution of Ohio an express provision, that "no appointing power shall be exercised by the General Assembly, except as prescribed in this Constitution and in the election of United States Senators;" and, upon this prohibition, it was decided in that case that the Legislature could not make the appointments there contested, and it was conceded that but for this express prohibition the Legislature [**116]  would have had the power to make the appointments.

In regard to the argument that because the Constitution recognizes the city of Baltimore as part and parcel of the organized government of the State, its charter is therefore placed beyond the power of the Legislature to modify or change it, in addition to the authorities and points in the brief, they insisted that such a recognition could have no more effect in regard to the city than the counties, for the latter are recognized by the Constitution in the same manner as the city of Baltimore. The result of this argument is, that the State would be deprived of all power whatever to discharge one of the most important objects for which governments are established. If this recognition makes the charter a constitutional charter, and adopts it at all, it adopts it with all the powers, limits and franchises which the city had at the date of the Constitution. And yet it will hardly be pretended that it is beyond the power of the Legislature to enlarge the limits of the city, by bringing portions of the county within its borders, to confer upon the city authorities the discharge of other duties than those they now possess. Such has never [**117]  been the construction of the Constitution. By the Act of 1838, ch. 208, the Mayor and City Council were authorised to levy thereafter upon the assessable property within the city by direct tax, a sum not exceeding $ 350,000 annually. By the Act of 1853, ch. 233, the law of 1838 was amended so as to allow the levy, by direct tax, of a sum not exceeding $ 500,000 annually, and by the Act of 1858, ch. 68, this was again amended so as to allow a levy of a sum not exceeding $ 800,000 annually. How could these latter Acts be passed if the Constitution fixes and establishes the Act of 1838, which was a part of the city charter, beyond the power of legislative control? The charter of the city, from the day of its passage to the present, has constantly been subject to alteration and amendment by the Legislature, and the inconveniences which would result from now placing it beyond the power of such alteration and amendment, are so obvious that they need not be pressed. Nothing but plain and explicit language in the Constitution could effect such a result. Such language, in this respect, cannot be found in that instrument, and it is clear that the people when they adopted it, never supposed they [**118]  were parting with the power to govern and control the city of Baltimore, and to pass such laws as they might deem the public good required to meet the constantly changing and increasing necessities of its population.

In reply to the argument, that the provision in the law authorizing the Commissioners to issue certificates of indebtedness, was in violation of that clause of Art. 1, sec. 10, of the Constitution of the United States, which forbids the States to "emit bills of credit," they insisted that this clause had no application to such a case as this. The thing prohibited is emitting bills of credit, and the object of the prohibition was to strike down paper money issued upon the faith of the States alone. It was never designed to prohibit the States from contracting debts, and giving bonds or certificates of indebtedness as evidences of such debts. 4 Pet., 410, Craig, et al., vs. State of Missouri. 11 Pet., 257, Briscoe, et al., vs. Bank of the Commonwealth of Kentucky. Besides, if these certificates should be invalid for this reason, the same objection would apply equally to bonds issued by the city for the payment of other debts contracted by it, and constituting city stock.  [**119]  Nor is it any objection to the law that it authorizes these certificates to be taken in payment of taxes. Such a mode of payment has frequently been resorted to by the Legislature, and is sanctioned by the principle decided by this court in the case of Foley & Woodside vs. Mason, 6 Md. Rep., 37. But this objection, as well as that of usury, which is equally untenable, is not now properly before the court, for these certificates have not yet been issued, and the necessity for issuing them may never occur.

The proviso, that "no Black Republican, or endorser or supporter of the Helper Book, shall be appointed to any office under said Board," is said to be an objection to the law, because it proscribes persons for the sake of their political opinions. But, if such proscription was designed, it is totally at variance with that other provision of the law, in this respect, which requires the Commissioners to take an oath that they will not appoint any person to, or remove any person from any office, under the law, "for or on account of his political opinion." It is a provision interjected into the Act repugnant to its whole scope and object, and if obnoxious to the objection, that it [**120]  imposes a disqualification for office not sanctioned by the Constitution, it will be stricken from the law without impairing the efficiency of other parts of it. 7 Md. Rep., 151, Davis vs. The State. But it is impossible for this court to say, judicially, what class of persons are meant to be excluded by this proviso, and no decision can be pronounced as to the effect thereof.

The argument, that this law, independent of any constitutional restrictions, is void, because it is supposed to violate some fundamental principles of right and justice inherent in the nature and spirit of the social compact, and that therefore the courts can declare it void, can have no force in this case, even if the principle announced be correct. There are no such objections to the law. But if there were, this court can only decide upon the question of power in the Legislature to pass it, and whether they have that power or not, depends upon whether there is any express or necessarily implied prohibition in the Constitution to forbid its passage. If there is not, and the Act be in its nature a law, there is no power in the court to declare it unconstitutional. 21 Penn. State Rep., 162, Sharpless vs.  [**121]  Mayor of Philadelphia. 75 Eng. C. L. Rep., 455, 457, Woodward vs. Watts.

Wm. Schley, for the appellants, in reply, stated, he would argue in support of the following four propositions:

1st. The relators were not constitutionally appointed Commissioners.

2nd. The police force which, by the Act, the Commissioners are authorised to organize, if the same be appointed in manner and form as thereby required, will not be a constitutional police force.

3rd. The Act, in its provisions, is not merely subversive of the city government, but, in some of its provisions, is repugnant to the most cherished principles of civil liberty, and is arbitrary, oppressive and unjust; especially so in imposing on the city, as constituted authorities of the city, without its consent and against its will, a Board of Commissioners, clothed by the Act with powers both governmental and administrative, paramount, in fact, to those of the Mayor and City Council; clothed with unlimited power of compelling taxation at their mere discretion, through the action of the City Council; clothed with a right to raise money in the name, and on behalf and on the credit of the corporation, at usurious interest;  [**122]  all which and other powers are conferred on said Commissioners in subversion of the city government, with a provision, at the same time, that the city shall be responsible and liable to answer in damages for any acts of misfeasance, and of malfeasance, and for all omissions of duty, on the part of the said Commissioners. For which reasons, said Act ought not to be enforced by the courts of justice as valid and operative, but ought to be denounced as a mere nullity in law.

4th. Even if any or all the aforegoing propositions should be overruled, yet, upon the case presented by the record, the appellant is entitled to retain for the use of its own proper police, the property demanded by the relators in their petition. And in the discussion of this proposition it will be insisted, that the right of the city to maintain and govern a police force of its own, is effectually secured by the Constitution from legislative destruction; and, further, that the present police force of the city was lawfully created by a valid Ordinance of the city, and now exists as a lawful municipal institution, effectually protected by the Constitution of the State.

1. In support of the first proposition,  [**123]  he referred to the cases of Whittington vs. Polk, 1 H. & J., 242. Crane vs. Meginnis, 1 G. & J., 472. The Regents' Case, 9 G. & J., 410, as clearly deciding that the affirmative declaration in Art. 6 of the Bill of Rights of the Constitution of 1776, that the executive, judicial and legislative departments of government should be separate and distinct, was, in effect, prohibitory. No one of said departments could constitutionally invade the province or exercise the functions of another. In the present Constitution this Article is retained, with this significant addition, "and no person exercising the functions of one of said departments shall assume or discharge the duties of any other." The prohibition which previously rested on the sanctity of judicial construction, is now, in express words, made a part of the Constitution. The Legislature, therefore, cannot constitutionally exercise executive functions. The appointment of officers is strictly administrative, and properly pertains to the executive department. These Commissioners are officers. They have large powers, and liberal compensation. He cited Attorney General vs. Kennan, 7 Ohio, (N. S.,) Rep., 556. Even the policemen whom [**124]  these Commissioners are authorised to appoint, are officers. Brashear's Case, 8 Md. Rep., 95. If the Legislature cannot, per directum, appoint the policemen, they cannot validly do so through the action of the Commissioners. By sec. 11 of Art. 2 of the Constitution, it is expressly provided, that the Governor shall nominate, and, by and with the consent of the Senate, shall appoint all officers, whose appointment is not provided for in the Constitution, unless a different mode of appointment be prescribed by the law creating the office. In commenting upon the last clause of this section, he insisted that it must be construed in connection with Art. 6 of the Bill of Rights. They are parts of a whole, and should stand, if possible, together. If this clause were held to contain an implied grant of power to the Legislature, when creating new offices, to appoint, by the law itself, the officers to fill them, it would be idle to claim that the several departments of government in Maryland are separate and distinct. By this Act the Legislature usurped executive power in the very teeth of the prohibitory words of the Constitution. He further insisted it would not be an unreasonable construction [**125]  of this clause to hold, that it was intended to apply only to those offices antecedently created, for whose appointment no provision was made by the Constitution. It was introduced, from abundant caution, to prevent possible embarrassment; not as an enlargement of the power of the Legislature. But, he insisted, that, even if considered as a grant of power to prescribe a mode of appointment in the case of a new office thereafter to be created; still it cannot be held, by any just construction, to authorize the Legislature itself to make the appointment in and by the very law creating the office. They are different functions. One is legislative; the other essentially executive. And, he further insisted that, even if the Legislature could prescribe, by the law, that the officers to fill the offices should be elected by the concurrent vote of both branches; yet in thus electing officers, the Legislature would not be acting in its legislative capacity but, pro hac vice, would be exercising an administrative function.

He insisted that the various Acts which had been referred to, appointing trustees of academies, commissioners to open roads, to build public edifices, &c., were of no [**126]  value in a question of this kind. There is a broad difference between an office and a naked power. Besides, the validity of such Acts have not been particularly considered by the courts of Maryland. They are usually passed on request. No usage can sanctify a violation of the Constitution.

2nd. In support of his second proposition he said, that if the police force, for whose use the property is demanded, be an unconstitutional body, it would follow, as a corollary, that the mandamus should be refused. He stated that, if appointed pursuant to this Act, they would be an unconstitutional body for two reasons: firstly, because appointed by persons having no title, nor even color of title. The doctrine in relation to acts of persons who are officers de facto, although not de jure, cannot apply here. Secondly, because the Bill disfranchises persons who are not disfranchised by the Constitution. Eligibility to office is a general right. Our Constitution disfranchises, in reality, only the unpardoned convict and the duellist. This Act proscribes supporters of the Helper Book and Black Republicans. In so doing, it violates the Constitution. What will become of the liberty of the press,  [**127]  of the liberty of speech, of the freedom of thought, if such legislation is tolerated? Shall we proscribe a citizen because he may approve, in politics, a particular platform of dogmas, which the body of the community may justly condemn? Let no man be prescribed in our State for his opinions merely, whether religious, speculative or political. Overt acts, not opinions, are the proper subject for just punishment. This Act, in truth, re-asserts the exploded doctrine: voluntas reputabitur pro facto. He approved the sentiment of Mr. Jefferson, that errors of opinion may be safely tolerated where reason is left free to combat them. He referred to the Declaration of Rights, Art. 38; Maryland Code, 225; 11 Geo. Rep., 365; 1 Leiber on Civil Liberty, 109, 114, 118.

3rd. In arguing the third point, he said he would pass over many provisions which he deemed exceptionable, without discussion. In relation to the power conferred on these Commissioners to call out the militia, he said it was a very delicate power, that ought not to have been conferred upon any officer lower than the highest functionary in the State. But he dwelt at length upon the provision in the Act which authorizes the Police [**128]  Commissioners to estimate the amount of taxes to be levied for the support of the police force. He said it was arbitrary and despotic. The sovereign of Great Britain, in all the plentitude of regal power, would not attempt such action. It is nothing to the purpose to say that we have a guaranty in the character of the persons named as Commissioners, that the power will not be abused. But they have not only the power to prescribe what shall be assessed; they have the power to require payment in advance, thus compelling the corporation to borrow money to meet these requisitions. A still more obnoxious provision is the power given to the Commissioners to issue certificates of indebtedness in the name and on behalf of the city, and to sell them in the market for whatever they will bring. This is sanctioning rank usury, and is, at least, against the spirit, if not the words, of sec. 49 of Art. 3 of the Constitution. But he denounced as the most obnoxious provision of the Act, that which declares the Commissioners to be the agents of the city, capable, as such agents, of imposing upon the city a legal responsibility, as well for their acts of commission as for their acts of omission. In [**129]  the common case of the relation of principal and agent, the former has the right of selection. But here the State selects the Commissioners, and, by mere arbitrary power, against the will of the city, puts them in authority, and denudes those whom the city had selected, of all power to act. Is this a proper case for the doctrine of respondeat superior? If any judge in the land, in the case of a private person, should so decide, he would be impeached for the act. And why is not such a provision equally as tyranical and unjust in the case of a municipal corporation as in the case of a natural person? Why should it not be denounced in a legislative enactment, just as readily as in the supposed case of a judicial decision? He insisted that the law of the land, the Bill of Rights, the Constitution of the State, all forbid what he characterized as an outrage on sacred rights. He further insisted that even if no express provision can be found in the Constitution, there exists in the social compact, expressed or unexpressed, a higher law, which controls and nullifies all legislation which is palpably against the principles of natural justice. The phrase may have become exceptionable from modern [**130]  misapplication; but, properly applied, it indicates that paramount law which is above all merely human law. It is that sense of justice and right which God himself has impressed on the heart of man. It is that universal, unchangeable law, of which Cicero spoke--"Not one thing at Rome, another thing at Athens, one thing to-day, another thing to-morrow, but in every age, and amongst all nations, one and the same, immutable and eternal." It is that law of which Bishop Hooker said: "I bow with reverence before the majesty of the law. Her seat is the bosom of God; her voice the harmony of the world. All things in heaven and on earth do her homage; the very least, as feeling her protection; the greatest, as not above her power." Lord Coke asserted it in Bonham's Case, 8 Coke, 118; Chief Justice Hobart in Day vs. Savadge, Hob., 87, and Lord Holt in the case of the City of London vs. Wood, 12 Mod., 687. And this is not a new doctrine in Maryland. It was clearly and beautifully maintained by one now no more, (a great judge and a noble gentleman,) in the case of The Regents of the University of Maryland vs. Williams, 9 G. & J., 408. He read the following sentence from the opinion of Chief Justice [**131]  Buchanan in that case: "Independent of any express restriction in the Constitution of the State, there is a fundamental principle of right and justice, inherent in the nature and spirit of the social compact, (in this country, at least,) in the character and genius of our government, in the causes from which they sprang, and in the purposes for which they were established, that rises above and restrains, and sets bounds to the power of legislation, which the Legislature cannot pass without exceeding its rightful authority. It is that principle which protects the life, liberty and property of the citizen from violation in the unjust exercise of legislative powers."

4th. In discussing his fourth proposition, he admitted that the Legislature had large powers, but when restrained by the Constitution, they are under a paramount law. In commenting on Art. 2 of the Bill of Rights, (in which it is said that the people of the State ought to have the sole right of regulating the internal government and police thereof,) he insisted that it properly expressed that the sovereign power was not in the Legislature but in the people. They have spoken in the Constitution, and in so far as they [**132]  have by that instrument committed to any other authority than the Legislature, any police power, to that extent has the Constitution inhibited to the Legislature the exercise of police power. He referred to the addendum to sec. 19 of Art. 4, which is in the following words: "And the Mayor and City Council may provide by ordinance, from time to time, for the creation and government of such temporary additional police as they may deem necessary to preserve the public peace," and he insisted that whatever power is given by this constitutional provision to the city government, is forbidden to the Legislature. His argument was as follows: By the body of sec. 19 of Art. 4, a State police is provided for the election districts of every county, and for every ward in the city of Baltimore. He denominated this as the permanent police. The only power conferred on the Legislature, as respects this permanent police, is the power to increase or diminish the number, to define their duties and fix their compensation. The mode of their selection, and their tenure of office, are fixed by the Constitution. By Art. 7, sec. 9, power is conferred on the Legislature to provide for the appointment of other [**133]  county officers for the counties of the State, but no provision of like character, in relation to the city of Baltimore, is found in the Constitution. The reason is obvious. By the addendum to sec. 19, the power, as respects the city of Baltimore, was conferred on the municipal government. If this is not the true explanation, how is it to be accounted for, that whilst the Convention, with anxious solicitude, made provision for unforeseen emergencies, which might require additional officers for the counties, no such provision is made for the great commercial mart of the State, with a population of a quarter of a million of people, and paying more than half the State revenue, besides defraying the expenses of her local government?

In commenting further on this addendum to sec. 19, he said that the word "may," as there used, means "must." He cited 1 Pet., 64, 2 Chitty's Rep., 609; 9 Md. Rep., 174, and Dwarris on Statutes, 712. The word, "provide," does not mean, as argued, to raise a force for the purpose of putting down an actual open riot. So, "to preserve the public peace," does not mean to restore it. It plainly means that in order to prevent any breach of the peace, such additional [**134]  police shall be provided by the city government as, in their judgment, may be deemed necessary for the purpose. This body is to be created, not by Act of Assembly, but by Ordinance of the city government. This police force is essentially an internal, local, urban institution, and is, therefore, properly placed under the government of the Mayor and City Council. The city very judiciously and properly exercised the power conferred on them by the Constitution, in the ordinance of the 1st of January 1857. It is an error to say that this ordinance was passed in virtue of the Act of 1853. It does not profess to have been so passed, and it is a fact conceded, that the Ordinance passed by councils of that day, pursuant to the Act of 1853, was not approved by the then Mayor, and never became a law. He said the Act of 1853 may have been passed from abundant caution, to remove some doubt as to the constitutional power of the city to arm the local police. Or, as it was the duty of the city to maintain an adequate police, the Legislature may have justly supposed that it had the right to require them to do so. The present Act takes away the power from the city. He denied that the word "additional,  [**135]  " in said sec. 19, referred to the Act of 1812. It referred to the permanent police. But even if it did refer to said Act, the repeal of that Act did not annihilate the power conferred on the city by the Constitution. It is not a mere accessorial right. It is a substantive power, not derived from the Legislature, not subject to the will of that body, but an independent municipal power, which the city government, alone, has the right to exercise, and is bound to exercise, to preserve the publice peace within the territorial limits of the city.  

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

OPINIONBY:
TUCK 

OPINION:

 [*453]  TUCK, J., delivered the opinion of this court:
Whether the present case possesses an unusual degree of importance, in view of the circumstances which, it is said, rendered necessary the passage of the law under review, or of the supposed difficulties which may attend its practical operation, if the judgment below be affirmed, is a question with which the court has no concern. It involves considerations of expediency and public policy of which the Legislature was the exclusive judge, and which, we must assume, were fully weighed and determined [**136]  when the Act was passed.
In another aspect, however, its consequence has not been undervalued by the counsel, nor overlooked by the court, while calmly considering the arguments adduced in support of their respective views of the Constitution and theory of government under which we live. When this department is called upon to review the acts of a co-ordinate branch of the government--the members of both having entered upon the discharge of official duties under the same solemn sanctions, and with a like sense of responsibility--we cannot fail to realize that the matter is of the gravest character, and demands our most careful and dispassionate consideration. In such cases there is no conflict between the Legislature and the Judiciary; on the contrary, it is to prevent strife and possible collision among those on whom the legislation is to operate, that we are made the final arbiter between them; the spirit of our institutions inculcating and exacting obedience to the laws as announced by the appropriate tribunals. And although, when the court is satisfied that the Legislature has exceeded its authority, we would no more falter in denouncing the Act as void, than we should hesitate [**137]  in deciding the most unimportant matter within our jurisdiction, yet, in cases of doubt on the question of power, it would be improper to interfere. We could not do so without assuming (when it did not clearly appear) that the Constitution had been violated, which should not be predicated of another department in the discharge of functions peculiarly its own, as the lawmaking power. This is the settled doctrine in this State, and, as far as we are informed, in every case in which the 

 [*454]  question has been considered.  Regents vs. Williams, 9 G. & J. 365. State, use of Washington County vs. Balto. & Ohio Rail Road Co., 12 G. & J. 399.
The Mayor and City Council of Baltimore, a public corporation, charged with extensive franchises for municipal purposes, had, for many years prior to the adoption of the present Constitution, an organized police force for the protection of the city, which had been, from time to time, increased in number, and the regulation thereof changed as the wants of the people seemed to require. It is not necessary to specify these changes, or refer to the Acts of Assembly authorizing them; let it suffice that the [**138]  validity of the laws was never questioned, nor the ordinances of the city, on that behalf, considered as beyond the limits of its charter. Whatever may now be thought of the effect of the Constitution upon the charter-privileges of the corporation, it is not to be doubted that the Legislature considered the city as remaining subordinate to the power of the State, according to the general doctrines applicable to public corporations, (9 G. & J. 397, 401; 9 Cranch, 52; 12 G. & J., 439, 440,) for at the session of 1853, ch. 46, the Legislature passed "An Act to provide for the better security of life and property in the city of Baltimore, by increasing and arming the police force thereof," whereby the Mayor and City Councils were authorized to increase and strengthen the police, to arm and pay them, and to indemnify them, when injured in the performance of their duty; and we find that, in 1856, an Ordinance was passed, "To establish a police for the city of Baltimore," which was approved 1st of January 1857, and afterwards again approved among the Revised Ordinances of 1858, (No. 30.) This Ordinance having abolished the old police system,  [**139]  the one therein prescribed took effect on the 1st of March 1857, and remained in operation until the session of 1860, when the Legislature passed the Act now under consideration, whereby all former laws and ordinances in relation to the police of the city were repealed, and a different system established, the details of which are set forth in the law, and to carry them out Commissioners were named in the Act, and every power 

 [*455]  deemed to be necessary to that end conferred upon them. This law deprives the city authorities of all control over, or interference with, the police of the city, except as provided by the 19th sec. of the 4th Art. of the Constitution, and they, having denied the validity of the law, and refused compliance with its terms for the purpose of having that question determined, the duty devolves on us of deciding whether it is a legitimate exercise of legislative power.
At the very threshold the relators are met with the objection that the law is radically void, because the Legislature had no power to appoint the Commissioners in the Act. It is plain that this point, if well taken, strikes down the law at one blow, because, if not validly appointed, they [**140]  cannot proceed to put it in force, and all other instrumentalities must fail. But if the Legislature had power to make the appointment, we cannot say that it ought not to have been exercised, any more than we could, with propriety, pass upon the correctness of its judgment in selecting these officers. It is a mere question of legislative power, and as such, alone, can we treat it.
It is contended that, the power of appointment being an intrinsic executive function, the naming of the Commissioners in the law was in violation of the 6th Art. of the Declaration of Rights, "That the legislative, executive and judicial powers of government, ought to be forever separate and distinct from each other, and no person exercising the functions of one of said departments shall assume or discharge the duties of any other."
We are not prepared to admit that the power of appointment to office is a function intrinsically executive, in the sense in which we understand the position to have been taken; namely, that it is inherent in, and necessarily belongs to, the executive department. Under some forms of government it may be so regarded, but the reason does not apply to our system of checks and balances [**141]  in the distribution of powers, where the people are the source and fountain of government, exerting their will after the manner, and by instrumentalities, specially provided in the Constitution. The case cited, (3 J. J. Marshall 401,) 

 [*456]  affirms that it is intrinsically executive; but the judge explains that the nature of the power is executive, whether exercised by the Governor, or a court, as distinguished from those acts of the court that are merely judicial. But it is no where intimated that another department, than the executive, cannot exercise the power. On the contrary the case was disposed of on the ground, that the court had the power to appoint the clerk, and that its judgment could not be interfered with, by way of appeal from the order of appointment. And, indeed, here it is admitted, that the executive cannot act where other modes of appointment are prescribed by the Constitution. It is true that certain powers are peculiar to each department, as their designations import (2 Md. 452) the Legislature makes the laws, the Judiciary expounds them, and the Governor sees that they are faithfully executed; but even in this duty [**142]  he is restrained in some degree, because they must be enforced according to the Constitution and laws, and not at his will and discretion. It does not follow, as a necessary conclusion, that, in order to perform this duty, he must have agents of his own nomination. Our form of government, in its various changes, has never recognized this power as an executive prerogative. Under the Constitution of 1776, although appointments were generally made by the Governor and Council, some of the most important were not. Registers of Wills were commissioned by the Governor, on the joint recommendation of the Senate and House of Delegates, the power of the Governor and Council to make an appointment being limited to vacancies during the recess of the Legislature, and then to continue only until its next meeting. So the clerks of courts were appointed by the judges, the power of the executive being restricted to cases of vacancy, and until the meeting of the court. This, however, was changed by the amended Constitution of 1836, which conferred the power of appointment on the Governor--by the advice and consent of the Senate, a branch of the Legislature, yet pro hac vice discharging executive [**143]  duties. If we look to the present Constitution we find a similar state of things. The clerks and registers 

 [*457]  and other officers are elected by the people, but, when vacancies occur, the office is not in all cases, though in some, filled by the executive. In such emergency, the clerks and State's attorneys are appointed by the court; the Register of Wills by the Orphans courts; constables by the county commissioners, &c., &c.; and as to the clerk of the Court of Appeals, the executive department has no power whatever, the appointment residing with the judges. Under the old Constitution, the Treasurer and Commissioner of Loans were appointed by the House of Delegates, the Governor's power extending only to cases of vacancy, and under the present the Treasurer as well as the Librarian receive their appointments from the Legislature. These instances are sufficient to show that the Constitution, so far from treating this as an inherent executive power, indicates that it belongs where the people choose to place it.
But this Article is not to be interpreted as enjoining a complete separation between these several departments. Practically it has never been so in any of the States [**144]  in whose fundamental law the principle has been asserted. There are numerous instances to show that it has not been so regarded in this State for our statute books contain, time and again, laws affording relief where the judiciary possessed ample jurisdiction over the subject-matter. How this kind of legislation came to be introduced, it is useless now to inquire. It was commenced soon after the adoption of the Constitution, probably participated in by some of the framers of that instrument, and has been continued ever since; and we know that valuable estates are now enjoyed upon no higher title than such Acts of Assembly, operating as judicial decrees. Instances of appointments by the Legislature are equally, if not more numerous. Many were cited in argument, and some of them in regard to matters of vital importance to the citizen, especially those relating to the city of Baltimore. It may be, as suggested in argument, that the persons named in these laws were not regarded as officers, in the meaning of the Constitution; but does it follow that these Commissioners are within the class contemplated by the Constitution? We 

 [*458]  do not mean to say that the Constitution, in its [**145]  prohibitions, operates only on offices known to the Constitution, and does not extend to those created by law, though an opinion to that effect, by one of the most eminent jurists of his time, (Wm. Pinckney,) is on file in the State Department, and for many years furnished authority for appointments that seemed to have been prohibited by the Constitution. We allude to this legislation as evidence of cotemporaneous construction, and acquiescence by the people, and the various departments of the government, in such practical interpretation. For the effect of such continued practice, see Burgess vs. Pue, 2 Gill 11; State vs. Mayhew, 2 Gill 487. It is true that it was intimated, rather than decided, in 9 G. & J. 416, that an unconstitutional Act of Assembly, affecting a private corporation, cannot be made valid by acquiescence in it; but the same court had held in Shafer vs. Stonebraker, 4 G. & J. 345, that the practice of sustaining special demurrers had engrafted upon the Act of 1763, ch. 23, an interpretation that nothing but an Act of Assembly could change. The same doctrine was announced in McCulloch vs. The State, 4 Wheat. 316. [**146]  See, also, Bradford vs. Jones, 1 Md. 351, that the Constitution may receive an interpretation from a long, constant, and uniform legislative practice. There are also instances in which the common opinion of the profession, and the forms and course of judicial procedure have been regarded as safe guides in the adjudication of points of law; see 5 Md. Rep., 271. 6 Md. Rep., 317. 7 Md. Rep., 442. 1 G. & J., 231; and 2 G. & J. 285. Is it not as important, that the interpretation of the fundamental law should be as uniform and certain as that of legislative enactments? In both, the intent of the authors is the point to be arrived at, and the same rules and means of ascertaining it may be resorted to. If such considerations do not establish the right of the Legislature to make appointments of this kind, they are well calculated to raise very serious doubts on the subject, in which state of the judicial mind the law must be left to operate, until changed by the proper branch of government.

 [*459]  In considering the question as to the separation of the departments, we are to bear [**147]  in mind that the Declaration of Rights is not to be construed by itself, according to its literal meaning; it and the Constitution compose our form of government, and they must be interpreted as one instrument.  1 G. & J. 472. The former announces principles on which the government, about to be established, will be based. If they differ, the Constitution must be taken as a limitation or qualification of the general principle previously declared, according to the subject and the language employed. In our government there are several instances of this kind, in reference to this 6th Article. The Constitution of 1776, contained the first portion of the Article in our present Constitution, yet it devolved on the Legislature the election of the Governor and Council, and on the Executive the appointment of judges, and, in certain contingencies, of officers connected with the judiciary. It also provides for the appointment of other officers, and, accordingly, judges of the orphans court, from 1798 to 1851, were appointed by the Executive. So, also, that instrument, as does the present Constitution, invested the Legislature with quasi judicial functions, in exercising the [**148]  power of impeachment and punishment, as therein provided. A similar departure is observable in the union of the Senate and the Governor, in making appointments to office. It is obvious that dangerous combinations might be formed between these branches of government, yet such a possibility did not outweigh the necessity of providing checks upon the improper exercise of the appointing power if left in the hands of the Governor alone. Hence a portion of the Legislature was made, as it were, a part of the executive power in the State.
The words of the Article appear to be plain enough, but they have not been accepted in their literal sense. As we have said before, entire practical separation was not designed; without recourse to cotemporaneous writers of high authority, we may content ourselves with the exposition of the Court of Appeals in Crane vs. Meginnis, 1 G. & J. 463, to the effect, that it was designed to ingraft this principle on our 

 [*460]  system, "only as far as comported with free government," as "an inhibition upon the exercise by one department of powers conferred on any other by the Constitution; restraining each branch within its appropriate sphere,  [**149]  by forbidding to it the use of powers allotted to the co-ordinate departments." In that case a portion of the law was declared void, as an exercise of judicial power in its passage. If the power exercised by the Legislature, in the case at bar, had been conferred on any other branch of government, a like result would follow; but if the power is given to the Legislature, it may be exercised notwithstanding the 6th Article of the Declaration of Rights; which brings us to consider the 11th sec. of the 2nd Article of the Constitution.
On this Article the relators insist, that it authorizes the appointment by the Legislature, because it confers on the executive the appointment of all officers, not otherwise provided for, "unless a different mode of appointment be prescribed by the law creating the office," and that, as the law in question creates the office, the designation of the Commissioners in the Act is within the intent and meaning of the Constitution; to which it is answered on the part of the respondents, that this section gives the Legislature, in creating an office, power only to prescribe the mode of appointment, and can by no legitimate rule of construction be interpreted to [**150]  grant the power of legislative appointment. It is conceded that the Legislature was not under any obligation to confer the power of appointment on the executive; by this clause of the Constitution the power was placed there, in the event of a different mode not being prescribed in the law. But, it is said, it ought to have been delegated to the people or local authorities of the city of Baltimore. In the absence of any such requirement of the Legislature, we do not perceive that they were under a duty to make such delegation of the appointing power. The Constitution surely designed to repose some discretion in the Legislature, both over the mode of appointment, and the propriety and necessity of passing any law on the subject to which the exercise of the power might relate. It seems difficult to suppose that the people, through 

 [*461]  the Constitution, would entrust to that branch of government, nearest to the source of power, the right to create an office, and to indicate others to appoint the officers, and be unwilling to place the appointment with the Legislature itself. The Constitution must receive an interpretation according to the sense in which the people are supposed [**151]  to have understood its language; but it ought, also, to be construed with reference to the previous legislation of the State. 2 G. & J. 285. And when such power had been exercised by the Legislature, from the earliest period of the government, is it unreasonable to suppose that the people were aware, that the same might occur again unless prohibited by the Constitution? If there is no prohibition, express or implied, it would result from this view that the people intended the Legislature should continue to exercise the power. We are not dealing with one or a few words to extract what the instrument means; we look to the whole, its provisions, grants, restrictions, objects and purposes, and endeavor, from the whole, to give it such effect as we think the framers and the people designed. We are not to be considered as advocating the exercise of such powers; in exciting party times it might effect much mischief; but not more than the mere passage of laws, where the Legislature and executive are of the same political complexion. Yet no one doubts the power of the Legislature to enact laws, when it is believed that mere political purposes are to be accomplished. In such [**152]  cases, however the people may complain, they submit until a change of the Legislature can be effected in the constitutional mode. Hence we see that while the motives of the Legislature can have no effect upon the efficiency of the laws, neither can they be regarded by the judiciary when testing their power to pass them.
We have considered this point at some length, because it was greatly pressed by counsel, although we think that the objection is fully met by the case of Davis vs. State, 7 Md. 151, on which the learned judge below founded his decision of it.
Pursuing the arrangement suggested by the brief of the appellants, we are next to consider the effect of the fourteenth 

 [*462]  section of the law, which transfers the existing police force of the city from the city government to the Commissioners. This is said to be unconstitutional, and, if so, the objection defeats the law. The arguments submitted on this part of the case are of the gravest character. The appellants claim for the city a dignity far higher than belongs to any other portion of the community; a character that raises it above the power of the State, except such as is reserved by the Constitution [**153]  itself; and that the charter is a constitutional charter, placed beyond the reach of mere legislative power, either to repeal it, or to annul or destroy its important franchises.
That the city has certain rights, under the Constitution, none will deny, but so have the counties. Each is a public territorial division of the State, established for public political purposes connected with the administration of the government, possessing the character, and endowed with the powers of, corporations, according to the laws severally applicable to them.  12 G. & J. 399. They are mere instruments of government, appointed to aid in the administration of public affairs, and are parts of the State. As public corporations, they are to be governed according to the laws of the land, and are subject to the control of the Legislature.  Regents' Case, 9 Gill & Johns. 397, 401. 12 G. & J., 439. This is the unquestioned doctrine on the subject, apart from the supposed effect of the Constitution on this particular charter. We have no idea that the Convention, or the people, designed to clothe the city with the immunities now claimed for it. That they [**154]  would have placed a large city, with a population equal to nearly one-half the State, beyond the operation of its laws, and above the power of the people themselves, in the exercise of their sovereign right to govern the State, is not to be believed, and unless it plainly appears that such an imperium in imperio is created by the Constitution, the pretension ought not to be allowed. The considerations that suggest themselves in opposition to it, are so obvious, that they need not be dwelt upon. Nor do we believe that the exemption has ever before been claimed. The city was chartered by the Act of 1796, ch. 68, with powers fully equal to 

 [*463]  the wants of the people, as was supposed at the time. Its police powers are set forth in the ninth section. The next year, (1797, ch. 54,) a supplement was passed, giving additional powers, and declaring that the original charter and that supplement should be perpetual, and that all ordinances passed, or to be passed, should be valid. To be sure, this was not a constitutional recognition of the city, but, as far as one Legislature could bind its successors, all power over the corporation was parted with. But we know that numerous [**155]  Acts were passed afterwards, materially affecting the rights and powers of the corporation; some at the instance of the people, but others without such application, as far as the Acts themselves afford any information as to the motive of their passage. As a signal instance, we may notice the Act of 1817, ch. 148, "relating to the city of Baltimore," wherein, in addition to important provisions concerning the government of the city, and the powers of the Mayor and City Council, and although they had ample jurisdiction over the subject of streets, Commissioners were appointed, by name in the law, to survey and lay off the city into such streets, lanes and alleys, as they might deem expedient, with power, also, to select and purchase property for public purposes, the city authorities having no voice in the matter, except as to the reasonableness of the price, and all expenses contracted by them were to be paid by the city. And although the city charter was recognized by the amended Constitution of 1836, as fully, in our opinion, as under the present, (we speak apart from the 19th sec. of the 4th Art.,) with all the powers before possessed by the corporate authorities, it was deemed [**156]  necessary, or advisable, to obtain, by the Act of 1838, ch. 208, authority to increase the annual levy to $ 350,000, and, by ch. 226 of the same session, further power in reference to streets. And, on examination of the laws, it will appear that most of the subjects over which jurisdiction is now given to the Commissioners by the Act of 1860, were legislated upon by the State, or by the Mayor and City Councils under authority of the State Legislature. During the time elapsed since the adoption of the present Constitution, similar powers have been frequently 

 [*464]  exercised. It is unreasonable, in the nature of things, that a portion or political division of a State should be above the power of the whole, and we cannot find in the Constitution any warrant for the opinion that the people intended to give to Baltimore City such pre-eminence.
If there be any inherent rights or franchises under the charter of the city, we think they need not be passed upon now, because they are not assailed or proposed to be taken away by the law in question. The object is to regulate the police affairs of the city, not to destroy its franchises; to place these matters in other hands, whereby the [**157]  duty of governing, always residing in the State, is to be discharged by means of other agencies than those heretofore employed. Ascribing to the Legislature the motives with which all laws of this kind are supposed to be passed, we must assume that the object is to accomplish, for the good of the citizens of Baltimore, that, in respect to which, previous legislation had failed of adequate results.
The third point on the brief relates to the 12th section, which transfers the use of the Fire Alarm Telegraph, station houses, &c., to the Commissioners.
We are of opinion that the argument on this branch of the case was based on the inaccurate idea, that this is private property within the meaning of the Constitution. There is no doubt that taking private property is beyond the scope of legislative authority, except when required for public use, and upon just compensation being made. But does this property come within such description? Let us test this by the very exception stated in the argument. If private, the State may take it for public use, on making compensation. But to whom is the compensation to be made? Not to the Mayor and City Council, as individuals; but to them as representing [**158]  the people. And how made? By a tax levied upon the people themselves. That is, the people are to be taxed to buy property from themselves, for which they have already been taxed and have paid. City property may be taken for public purposes other than the uses of the city; that is, we suppose, that property owned by the city might be condemned, in 

 [*465]  some instances, as any other property; but then the use would pass from the city into other hands, from whom the payment or compensation would be made to the city as recent owner; but this doctrine cannot apply where the design is merely to take city property dedicated to particular uses, and apply the same property to the same purposes, by only changing the agency by which the use is to be directed. The use is the same, and the character of the property is not changed, nor the title, because, no matter by whom managed, it remains public, devoted to public use, and all the while belongs, not to the Commissioners, but to the city.
The 4th, 5th and 6th points relate to the 19th sec. of the 4th Art. of the Constitution. The solution of the questions arising on them depends on whether the police which the city authorities are empowered [**159]  to create, is to be additional to the conservators of the peace, mentioned in the section--that is, the justices of the peace and constables--or to the general police system then in operation, and such as might thereafter be established by law.
This section, whether considered alone or together with other portions of the Constitution which appear to have reference to the same subject, is by no means free from difficulty. Urged as they were, either theory appeared to be so well supported by argument and illustration, as almost to challenge our acceptance; but, on carefully considering the subject in all the phases in which it was presented, we have arrived at the conclusion that the respondents' construction ought not to prevail, as well for reasons affecting and vital to the supreme power in the State, as on account of the city of Baltimore, in emergencies where her citizens might suffer more from the want of power in the State authorities, than from possible abuse in the exercise of it. If the case were clear upon the words of the Constitution, or by necessary implication, we could not give weight to such considerations, but on a question where the human reason may pause and the [**160]  judgment be suspended, on account of uncertainty in the language employed, they ought not to be overlooked.
It is a matter of very serious doubt with us whether, if the 

 [*466]  respondents' view be adopted, the city of Baltimore could have any other than a peace-police, as distinguished from such other police regulations as are conferred on the Commissioners. It is not made the duty, nor is it within the nature of his office, that a justice of the peace, or constable, should perform police duty, other than such as looks to the preservation of the peace. They have no jurisdiction over most of the subjects mentioned in the fifth section of this law, of as much importance and as necessary to the well being of the inhabitants of a large city, as any other we can imagine. If the police power is exhausted, if the whole ground is covered by this clause of the Constitution, to the exclusion of legislative power, we are at a loss to perceive where the city will find authority to pass any police ordinances other than such as are merely temporary and additional to justices of the peace and constables, who, as we have said, are merely peace officers. But, by construing the power as remaining [**161]  with the Legislature, it, or the the city authorities, may exercise these necessary functions of government for the benefit of the city, as may be provided by law. We have the highest authority for saying, that the power to govern belongs to the people. (Dec. of Rights.) It is their duty to exercise it for the common good, and being under that obligation, it is not to be assumed that they have impaired the means of performing the duty by parting with the power to any division of the body politic.  4 Peters 514. 11 Peters 547.
It is no valid objection to the existence of the power, that it is in some degree concurrent in another organization in the government, and that the exercise by both may lead to confusion and possible strife. How far the city may proceed under this clause of the Constitution, we will not decide in anticipation. It will be quite time enough to determine the limits of power between the Commissioners and the city authorities, when the case is presented. But are we to assume, that the people will not acquiesce in the proceedings of the Commissioners? They are not appointed to act for themselves, or for any portion of the citizens,  [**162]  adversely to the rest; on the contrary, their duties are to be performed for the 

 [*467]  good of the whole. This must be predicated of all laws, and of the officers appointed to execute them. The present is a case between the State and the city, to determine the particular matters before us, and we must presume, that, when the question is settled, each will move in its allotted sphere in harmony with the other, else why is it made our duty to decide between them? The effects of the interpretation contended for, by the appellants, are further stated and considered by the Chief Justice in his opinion, and we need not pursue the point further, than to say, that the law, so far from designing any interference with the powers of the city, under this clause, in express terms recognizes its authority. Sec. 15.
The objection urged against the 15th section, under the 7th and 8th points, we think, cannot be sustained. The power to levy taxes is a sovereign power, and unless committed to some portion of the people, may always be exercised by the Legislature. It is not to be considered as parted with by mere construction, and we have not been referred to any portion of the Constitution which [**163]  divests it. Is it contended that the Legislature cannot lay a tax, without the consent of the particular people who are to pay it? We suppose not. When the Legislature provides for a tax, by any agency whatever, it is, in contemplation of the Constitution, the act of the people, and binding on all alike. Of such legislation it cannot be averred, that it is against the principles of free government. There may be such an exercise of the power that judges might not have voted for the law, but that does not affect the right to pass it. Under the old system of levy courts, and tax commissioners, when appointed by the executive, it was never said that they had not power to make assessments and levy taxes. They were not elected by the people, nor accountable to them. They were appointed, under legislative authority, by the executive, and the State exercised its supreme power of taxing the people through their agency. So here, the State chooses to substitute Commissioners in the place of the city authorities for the purpose of levying this tax, and we see no sufficient reason 

 [*468]  for denouncing the law on that account. That such a power may be delegated, see Burgess vs. Pue, 2 Gill 11. [**164]  
It is not deemed necessary in the present case to decide, whether the fifteenth section authorizes the Commissioners to put the certificates of debt, that they may issue, in the market, and sell them under par, nor the effect of such disposal of them. When the question is presented under proper judicial proceedings, the courts can determine how far the clause in the Constitution, on the subject of usury, may affect the validity of the demand. Besides, if there be any thing in the objection, it might apply as well to other evidences of debt issued by the city, and we are not disposed to prejudge the matter in advance of the defence being taken by those who, alone, can interpose it, and in a particular form.
There is no injustice nor defect of law in authorizing them to be received in payment of taxes. No person can be compelled to take them, and if taken and set-off against a claim for taxes, it will be only following a mode of payment heretofore practiced, when coupons were made receivable in payment of public taxes, to which no objection was ever raised.
The supposed improper interference with the duties of the sheriff, as urged against the 13th sec., would not vitiate the law,  [**165]  if the point were sustained; nor that in relation to the power of the Commissioners to call out the military authority of the State. 1 G. & J. 463. The views presented in the opinion of the Chief Justice, as well as that of the court below, show that these objections are not well taken.
That portion of the sixth section which relates to Black Republicans, &c., is obnoxious to the objection urged against it, if we are to consider that class of persons as proscribed on account of their political or religious opinions. But we cannot understand, officially, who are meant to be affected by the proviso, and, therefore, cannot express a judicial opinion on the question. As to the effect of the clause in the 16th sec., which disqualifies from holding any office under the Mayor, &c., such persons as shall forcibly resist the provisions of the law, the judges are equally divided in opinion.
The argument as to the 19th section, concerned more the 

 [*469]  apparent harshness of the measure, than the power of the State to make these Commissioners part of the city authorities, for whose acts the latter is made responsible. What we have said in reference to the former Commissioners [**166]  of Tax and Levy courts, will apply here. The counties were chargable as fully as now for the conduct of these local authorities, yet they were not of the people's own selection. They were appointed by the executive from among the citizens of the county, as these Commissioners are from among the citizens of Baltimore, and, if the State thinks it expedient to select such agents to execute municipal laws, there is no less ground for holding the people responsible than if they were otherwise appointed, whatever reasons might be urged against the execution of State authority in that way. If the argument should prevail, it would not defeat the law, and whether a party complaining of default on the part of the officers provided for by the law, can hold the city liable, may be better determined when such a demand shall be preferred.
Among the arguments against this law, it was contended that, apart from the Constitution, its provisions are so arbitrary, and unjust, and subversive of liberty, that the court ought to declare it void; and in support of this view, reference was made to that part of the opinion in the Regents' Case, 9 G. & J. 365, where it is said, that there [**167]  is a fundamental principle of right and justice inherent in the nature and spirit of the social compact, that rises above and restrains the power of legislation, which the Legislature cannot pass without exceeding its rightful authority. We need not examine this principle, if we see that it can have no application to the case before us. The court were dealing with the rights of a private corporation; we are treating of a public municipal corporation, and with the limitation of the principle as announced by the court, that it was designed to protect the life, liberty and property of the citizen from violation in the unjust exercise of legislative power, we are prepared to affirm that it asserts a very correct doctrine. But we do not understand that case as having applied the principle 

 [*470]  to the Legislature, when exercising its sovereignty over public charters granted for purposes of government.
The case has been most carefully prepared and elaborately argued, indicating great zeal and sincerity on the part of counsel. We have as carefully and anxiously considered their arguments, and the doctrines on which we supposed the case ought to be decided, and having here presented [**168]  the convictions of our best judgment upon them, we conclude with the additional remark, that we are not to be considered as dissenting from the views of the court below, where they have not been specially referred to and adopted. Inasmuch as the cause is of great importance, we deemed it due to the occasion to enter more fully into the various questions argued before us, than, under other circumstances, we might have felt ourselves required to have done, and chiefly upon those points which are not as fully discussed in his opinion.
The result is, that the order granting the mandamus must be affirmed.
Order affirmed. 

CONCURBY:
LE GRAND 

CONCUR:

LE GRAND, C. J., delivered the following separate concurring opinion:
The questions which this court is called upon to decide on this appeal, grow out of a portion of the enactments of the Legislature at its last session, and particularly the Act generally known as the Baltimore Police Bill.
Alternately this Act has been criticised and defended at the bar, and always with zeal and ability, according to the peculiar views in regard to it, of the eminent counsel who have considered its provisions, and who have pointed out, agreeably to their [**169]  respective opinions, its repugnancy to, or harmony with, the language and spirit of the Constitution of the State. If the consciousness of official obligation, and the intrinsic importance of the inquiries involved, did not demand it, the earnestness and the confidence in their solidity, with which the arguments of experienced and well-informed jurists have been addressed to this tribunal, would be sufficient 

 [*471]  to challenge all the patience of examination and dispassionate reflection of which it is capable.
The questions to be determined, if not novel in the history of our jurisprudence, are, nevertheless, of large magnitude. Apart from their purely legal nature, they are supposed to include matters, the particular settlement of which will ascertain, in the future, the ascendency of some one of the divisions into which the people of the city of Baltimore are politically classified. It is not improbable that, to this circumstance, a considerable part of the interest with which the discussion has been invested, owes its origin.
The popular mind very naturally views a subject of this and the like character, in the same light as it would one to be passed upon by it at the polls [**170]  in the exercise of the elective franchise, coloring the expression of its opinion with the complexion of the dogmas to which it has been accustomed to give its allegiance and support. And it requires neither an extensive experience or observation to satisfy any one that, under the influence of such feelings, the citizen has not been unfrequently found at one time sanctioning or opposing a particular measure, when, after it has been put in operation, his opinions have undergone a radical and thorough change as to its propriety and usefulness. But, whatever may be with him the controlling impulse to action, in any particular case, with a judicial tribunal no such rule can be observed without a palpable departure from the obvious path of duty. With the convictions or prejudices of the community, however sincerely entertained, or worthy of respect, unless they be sustained by the law, which it is its sworn obligation to uphold, a court of justice cannot concern itself to give to them practical vitality and enforcement.
The Constitution and laws fix the boundaries within which their ministers must act. All action outside is forbidden as usurpation, and, therefore, tyranny. In all governments,  [**171]  having any just pretensions to be considered free, limits are established to authority, of whatever character it may be. "There can be no liberty," says Montesquieu, "where the legislative and executive powers are united in the same person 

 [*472]  or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers." The meaning of this, says Mr. Madison, is not that "these departments ought to have no partial agency, or no control over the acts of each other," but amounts to this: "That where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free Constitution are subverted." But of this more hereafter. Suffice it for the present, that in the true sense of Montesquieu, in this, as in each of the other States of the confederacy, the powers of government have been parcelled out to be exerted by separate and distinct departments. It is for the Legislature to enact, the judiciary to expound, and the executive to enforce laws. Neither of the departments is absolutely sovereign in all things, but is only so within its proper limits.  [**172]  According to the theory on which our State government is founded, the people are recognized as the source of all governmental power. They are, in this sense, the true and only sovereigns. For their own good, they have authorized a body, chosen by themselves, to exercise, under certain prescribed limitations, the supreme power. This body is known, in common parlance, as the Legislature, and, except in cases prohibited, either by the Constitution of the United States or that of the State, is as free and competent to act in the passage of binding and effective laws as would be the people themselves, if they were acting in their primary and sovereign capacity as a pure democracy, restrained only by their sense of justice and expediency.
The difference between our State government and a pure democracy, consists in this: In the latter, the people have the power to do as they may please, while in the former, their delegates have the same scope of authority, save in so far as there be express or necessarily implied limitations on it. Without these limitations their power is absolute. This definition is nowhere denied by persons familiar with the nature of our political institutions,  [**173]  and has been affirmed by the courts of every State in the Union, whenever they have been called 

 [*473]  upon to pronounce in regard to it. It would be a needless labor to enumerate the cases in which there has been a palpable recognition of it. It was distinctly recognized in the very able and lucid argument addressed to this court by Mr. Alexander, one of the counsel for the respondents, in the following apt language: "I agree," said he, "that in the absence of constitutional limitation, the legislative power extends to all appropriate subjects of legislation, that the limitation is the exception, and that he who would insist upon the limitation, must prove it. But it is not at all necessary that the limitation should be created by express words; it may be made out by implication, resulting from the grant of power to another department, and even by the form in which power is granted to the Legislature."
This being so, the question then arises, whether there be anything in the law now under review which is in conflict with the provisions of either the Constitution of the United States or of that of the State of Maryland? And this question is purely one as to the power residing [**174]  in the Legislature to pass it. It does not touch the expediency or utility of the enactment. These were matters for the exclusive decision of the Legislature; "The result of the deliberations of all collective bodies, must necessarily be a compound as well of the errors and prejudices, as of the good sense and wisdom of the individuals of whom they are composed." No. 85 of Federalist. And, "the degree in which a measure is necessary, can never be a test of the legal right to adopt it; that must be a matter of opinion, and can only be a test of expediency. The relation between the measure and the end; between the nature of the mean employed towards the execution of a power, and the object of that power, must be the criterion of constitutionality, not the more or less of necessity or utility." A "restrictive interpretation of the word necessary, is also contrary to this sound maxim of construction; namely, that the powers contained in a Constitution of government, especially those which concern the general administration of a country, its finances, trade, defence, &c., ought to be construed liberally in advancement of the public good.  [**175]   This 

 [*474]  rule does not depend on the particular form of government, or on the particular demarkation of the boundaries of its powers, but on the nature and objects of government itself." Hamilton's opinion to President Washington, Feb. 23rd, 1791.
These canons of interpretation have been received and acted upon with approbation by the courts of the several States, and by the Supreme Court of the United States.
If, therefore, the Legislature had the constitutional power to pass the particular law in question, then it was with the Legislature, and with it alone, to determine whether or not there existed a necessity for its passage; its judgment in the matter being conclusive in regard to that fact.
If the Act be obnoxious to any objection which makes it the duty of this court to pronounce it inoperative, it must be so, because of a want of power in the Legislature to enact it. "What is a power but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the means necessary to its execution? What is a legislative power, but a power of making laws? What are the means to execute a legislative [**176]  power, but laws? What is the power of laying and collecting taxes, but a legislative power, or a power of making laws to lay and collect taxes? What are the proper means of executing such a power, but necessary and proper laws?" No. 33, Federalist.
The object of the Act of last session is to provide a permanent police for the city of Baltimore, so as to ensure the protection of the rights, persons and property, of its inhabitants. Of the necessity for such a law, the courts are not to be the judges, and for the reasons we have given. But it is unmistakable that the character of the law, and the power to pass it, fall directly within the category of question and answer we have quoted. Adopting it as a just and proper standard, we can have no difficulty in deciding that both the law and power are, in their nature, strictly legislative, and that unless there be some express or necessarily implied inhibition against the one or the other, or both, to be found in the Constitution of the United States, or of the State of Maryland, the law must stand relieved from all judicial censure.

 [*475]  Such prohibitions, it is urged, are to [**177]  be found. Those suggested will be examined in the order in which they were presented at the bar.
It is a well established principle of judicial construction, that before an Act of the Legislature ought to be declared unconstitutional, its repugnancy to the provisions or necessary implications of the Constitution, should be manifest and free from all reasonable doubt. If its character, in this regard, be questionable, then comity and a proper respect for a co-ordinate branch of the government, should determine the matter in favor of the action of the latter.
This doctrine has been uniformly held. It was remarked by Chief Justice Buchanan, in the case of the Regents of the University of Maryland, 9 Gill & Johnson 365, that it had been said, "that a legislative Act should not be pronounced unconstitutional or invalid, in a doubtful case, nor should it, where the doubt is bona fide and well founded, and not the result of a disinclination to deny the authority of the Legislature, which all must feel, but none should yield to, in violation of a solemn duty. But where a judge is satisfied, upon full consideration, that an Act of the Legislature is contrary to [**178]  the Constitution of the United States, the supreme law, which he is bound to obey, and which must prevail over any Act that comes in conflict, and cannot stand with it, or for any other reason invalid, he has no choice; and all that is left him, is honestly and fearlessly to do his duty; from the faithful discharge of which, however unpleasant the task, no upright judge can shrink if he would. On the other hand, a judge should not suffer himself to be betrayed to pronounce an Act unconstitutional or invalid on insufficient grounds, by a morbid apprehension that a contrary decision might be ascribed to the want of a just and proper sense of judicial duty." In the case of the State use of Washington county, vs.  Baltimore & Ohio Railroad Co., 12 Gill & Johnson 438, the court, whilst recognizing the obligation, under certain circumstances, to pronounce against the validity of an Act of the Legislature, says, that "to declare an act of a coordinate department of the government an unwarrantable 

 [*476]  assumption or usurpation of power, because it is a violation of a constitutional prohibition, is an exercise of the judicial office of a grave and delicate nature,  [**179]  which never can be warranted but in a clear case."
It has also been generally held, that contemporaneous interpretation furnishes reliable light as to the meaning of a clause otherwise involved in obscurity or doubt. "Cotemporaneous expositions of doubtful provisions, in all instruments, and particularly in legislative enactments and constitutional charters, are held to be legitimate and useful sources of construction." Opinion of the Justices of the Supreme Judicial Court of Massachusetts, on questions submitted to their consideration, 3 Pick. 518; Kiersted and others vs.  The State, 1 Gill & Johnson 248; Hays vs. Richardson, 1 Gill & Johnson 366.
It is essential these rules of interpretation should be borne in mind, when a clause of our State Constitution is under consideration.
One of the objections urged to the Act--and one, too, which goes to its entire existence--is, that the appointment by the Legislature of the Commissioners named in it, is a violation of the Constitution, not only because it is an usurpation of powers, which, in their nature, are administrative or executive, but is in conflict with the express [**180]  language of the Constitution itself.
Both aspects of the objection may be viewed together. The political aphorism, that the several departments of the government ought forever to be kept separate and distinct, has been alluded to already in this opinion, and its meaning sought to be fixed in accordance with the apprehension had of it by those who had the largest share in incorporating it in the forms of government of these States. That the explanation given is the true one, will be apparent from a consideration of the Constitutions of some of the States, and especially of that of Maryland.
In the year 1782, the State of Georgia passed an Act inflicting penalties on, and confiscating, the estates of such persons as were therein declared guilty of treason; among these 

 [*477]  was one Cooper, who, in 1797, brought suit to recover the amount of a bond which he held of one Telfair, of Georgia. To his right of recovery the Act of 1782 was pleaded as a bar. On the case being carried up to the Supreme Court of the United States, on the part of the plaintiff it was contended, that the Act of 1782 was unconstitutional, because it violated the first Article of the Constitution of Georgia,  [**181]  which was in these words: "The legislative, executive and judiciary departments shall be separate and distinct, so that neither exercise the powers belonging to the other."
It was urged that the Act was one of banishment and confiscation; that it was not, in its nature, legislative, but judicial, and, as such, being passed by the Legislature, a violation of the Constitution of the State. Without a dissentient voice, the validity of the law was upheld, the judges delivering their opinions seriatim. A few extracts from these will affirm what has heretofore been observed in relation to the delicacy of declaring a law unconstitutional. Washington, J., said: "The presumption, indeed, must always be in favor of the validity of laws, if the contrary is not clearly demonstrated;" and Patterson, J.: "It must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative implication."
The 11th section of the second Article of the present Constitution of the State, is as follows:
"He (the Governor) shall nominate, and, by and with the advice and consent of the Senate, appoint all civil and military officers of the State, whose appointment [**182]  or election is not herein provided for, unless a different mode of appointment be prescribed by the law creating the office."
On behalf of the respondents it is contended, that the Governor, under this section, has the power "to fill all offices in this State, whether created by the Constitution or by the Acts of Assembly, unless otherwise provided for by one or the other." The meaning of this is not very clear, if it is to be taken as inconsistent with a power in the Legislature to appoint to an office created by it, if the mode of such appointment be not provided for by the Constitution. But if 

 [*478]  it is to be understood as asserting that, although the Legislature has the right to create offices not forbidden by the Constitution, yet it has not the right, by appointment, to fill them, but must designate some other authority or person to do so, there is no sufficient warrant in the Constitution for any such idea. Apart from the plain and unambiguous language of the Constitution, it would be difficult to imagine what possible good could arise from such an interdiction of the power of appointment in the Legislature, whilst with it should be left the power of designating [**183]  those by whom the appointing power should be exerted. In either case the power would be substantially and practically with the Legislature; in the one, it would be exercised directly, while in the other, it would be by the designation of persons who would exercise it by the appointment of those who might be previously agreed upon. But, in truth, the objection answers itself. What, in point of fact, is the designation of a body or person to make appointments, but the appointment of such body or person?
The view of the respondents is unsustained by authority, whilst the opposite of it is fully sustained, not only by the unequivocal language of the Constitution, but by judicial decision, and the practice of the State ever since the formation of its government.
The section gives to the Governor the power of appointment in all cases except two:
1. Those officers whose appointment is otherwise provided for in the Constitution.
2. Those officers, the mode of whose appointment is otherwise prescribed by the law creating the office. The obvious definition of the word "prescribed," as used in the section quoted, is "ordered."
The question then is, has the  [**184]  "law creating the office" of Commissioners of the Board of Police, prescribed the mode of appointment to it? It has done it in the simplest and most direct manner, by appointing the persons in the Act creating the office; and its authority for doing so, independently of all other considerations, can be drawn from the words in the section following the word "unless."

 [*479]  The Constitution of 1776, was quite as strong in its language as the present, adopted in the year 1851. The sixth section of the Declaration of Rights declared: "That the legislative, executive and judicial powers of government, ought to be forever separate and distinct from each other," and yet under it, almost any number of Acts, making appointments, were passed, the constitutionality of which has never been denied, and under which immense possessions are now held and enjoyed.
Independently of the express authority conferred by the existing Constitution on the Legislature, to prescribe the mode of appointment to any office it may create, on general principles, where the power is not distinctly, or by unavoidable implication, forbidden to it, it would possess it. "The legislative department [**185]  is nearest the source of power, and is manifestly the predominant branch of the government." Crane vs. Meginnis, 1 Gill & Johnson 463. "It is a sound political proposition, that wherever the legislative power of a government is undefined, it includes the judicial and executive attributes," per Patterson, J., 4 Dallas 19. "Plenary power in the Legislature, for all purposes of civil government, is the rule. A prohibition to exercise a particular power, is an exception. In inquiring, therefore, whether a given statute is constitutional, it is for those who question its validity to show that it is forbidden." The People vs. Draper, 15 N.Y. 532.
There is nothing, in all this, in anywise in conflict with the case of The State, ex rel. Attorney General vs. Kennon, 7 Ohio, (New Series,) 547. There, the obnoxious Act was palpably in opposition to the plain words of the Constitution. The Constitution--unlike, in this particular, that of Maryland--expressly declares, "no appointing power shall be exercised by the General Assembly, except as prescribed in this (its) Constitution, and in the election of United States Senators.  [**186]  " This language is so plain as to admit of but one construction: in no instance, but those distinctly specified, was the General Assembly to exercise the power of appointment. It is given to the Legislature of this State to prescribe the 

 [*480]  mode of appointment by the law creating the office. No two things could be more dissimilar than are the Constitutions of Ohio and Maryland, in this respect.
These observations sufficiently dispose of the objection to the mode of appointment of the Commissioners mentioned in the Act.
The next exception to the Act is founded on the 19th section of the 4th Article of the Constitution, which, after making provision that the Legislature shall fix the number of justices of the peace, and constables, for each ward of the city of Baltimore, and for each election district in the several counties, and declaring that they shall be, by virtue of their offices, conservators of the peace in the counties and city of Baltimore, respectively, the filling of vacancies occurring in their number, and other things concerning them, declares: "And the Mayor and City Council may provide, by ordinance, from time to time, for the creation and government of  [**187]   such temporary additional police, as they may deem necessary to preserve the public peace."
Now it is manifest, the power given to the Mayor and City Council is to create and govern a temporary additional, and not a permanent police, as contra-distinguished from it. Moreover, the police which they are authorized to create, is not only to be temporary in its duration, but is to be additional to something already in existence, whenever, from time to time, it may be necessary to summon it "to preserve the public peace."
It is difficult to understand how that which is declared to be but temporary and additional, can be considered as permanent, original and independent. The proposition involves a contradiction in itself; and yet it must be so, unless the power be reserved to the State to provide a permanent police for the city of Baltimore.
We are to give a common sense interpretation to the action of the framers of the Constitution, and to that of the people who adopted it. We are to presume they understood the existing condition of the law, applicable, as well to this as to other subjects of public interest, in regard to which they [**188]  were 

 [*481]  to employ their judgments and express their opinions. This sentiment of deference and justice is not for the first time to be acknowledged.  State vs. Mace, 5 Md. 337. Manly vs. State, 7 Md. 135. Duramus vs. Harrison & Whitman, 26 Ala. 326. Bandel vs. Isaac, 13 Md. 202.
In view of these decisions, no less than the apparent propriety of the thing, we are to assume that the Convention had knowledge of the fact that, under laws then on the statute book, a police, permanent in its character, was in existence, and if so, that whilst it was not meant to deprive the State of the power either to augment or diminish its number, it was deemed but prudential and proper to provide against sudden emergencies and outbreaks of popular rage, by conferring on the Mayor and City Council the power to create a temporary and additional force, for meeting the one and repressing the other. The very language employed clearly denotes, that the thing to be created was to be one of activity, of short duration, and which, after having accomplished the purpose of its enrolment, was to be disbanded into [**189]  the general body of the community from which it was taken for the preservation "of the peace," suddenly threatened to be, or actually disturbed.
Were this not so, and had it been the intention of the Constitution to deprive the State of all power in the establishment of a police in the city of Baltimore, and to confer it on the corporation, nothing was easier of accomplishment. But a few words were required to do it. But this not being its purpose, language was used suitable to the expression of the idea, that to meet successfully any unusual tax upon the energies of the public authorities, to suppress tumults and like disturbances, they should have the faculty of invoking, for the time, an additional force, which, as it was to be employed in guarding against unusual excitements and in resistance to inflamed and maddened feeling, like them its subsistence was anticipated to be but temporary. The reasonableness of the power is its justification. It never could have been the purpose of any very considerable portion of the people of the State, to deprive its government of 

 [*482]  the capacity of fulfilling one of its primary and most important obligations to its citizens.  [**190]  And as was justly said in The People vs. Draper, 1 Smith 544, 545, "As a political society, the State has an interest in the repression of disorder, and the maintenance of peace and security in every locality within its limits; and if, from exceptional causes, the public good requires that legislation, either permanent or temporary, be directed toward any particular locality, whether consisting of one county or of several counties, it is within the discretion of the Legislature to apply such legislation, as in its judgment the exigency of the case may require, and it is the sole judge of the existence of such causes." *** "It follows that it belongs to the Legislature to arrange and distribute the administrative functions, committing such portions as it may deem suitable, to local jurisdictions, and retaining other portions to be exercised by officers appointed by the central power, and changing the arrangement, from time to time, as convenience, the efficiency of administration and the public good, may seem to require. If a particular act of legislation does not conflict with any of the limitations or restraints which have been referred to, it is not in the power of the courts [**191]  to arrest its execution, however unwise its provisions may be, or whatever the motives may have been which led to its enactment." *** "If a given act of legislation is not forbidden by express words, or by necessary implication, the judges cannot listen to a suggestion, that the professed motives are not the real ones."
In answer to this it is urged the Constitution, itself, points out the police to which that now existing in the city of Baltimore is to be considered as additional; that this police consists of the justices of the peace and constables of the respective wards, who are declared, by virtue of their offices, conservators of the peace. This view cannot be upheld, if it be recollected that, at the very time the clause referred to was, with the rest of the Constitution, adopted, there was a police force in operation other than justices of the peace and constables, organized and supported by the authority conferred on the Mayor and City Council of Baltimore by the 

 [*483]  Act of the Legislature of 1812, ch. 194; which Act was continued in force by the third Article of the Declaration of Rights. It was to that police, or any other which the Legislature might [**192]  establish in augmentation or in lieu of it, to which the temporary additional police was to be subjoined and made appendant. The mere fact of the 19th sec. of the 4th Art. declaring, what would be equally true in the absence of any declaration on the subject, that justices of the peace and constables are conservators of the peace, is not perceived as affording any aid to the theory that they are the contemplated permanent police. Neither their numbers, nor the daily calls upon their time, as strictly judges, and executive officers for the service of process, justify the opinion that they were looked to as adequate to the performance of all the ordinary police duties of so large a city as Baltimore. So far back as the year 1812, experience had demonstrated that a force of one hundred men was necessary. Surely, the large increase of population and the occurrences subsequently to that time, could furnish no reason for diminution of the number of the police, and none was made. The justices and the constables were proclaimed, as were the judges, conservators of the peace. It was a needless declaration, and doubtless made only from abundant caution.
That it was the general understanding [**193]  that the regular police of the city was that authorized by the Act of 1812, is apparent from the passage of the Act of 1853, ch. 46, entitled, "An Act to provide for the better security of life and property in the city of Baltimore, by increasing and arming the police force thereof." It repealed the Act of 1812, ch. 194, which limited the appointment of city bailiffs to the number of 100, and at the same time left the number to the unrestricted discretion of the Mayor and City Council, and authorized the arming of the police. Under this Act of 1853, the city acted, and for the first time increased the number of the police beyond one hundred, and gave them arms. No one disputed the constitutionality of that Act; and inasmuch as the Constitution has undergone no change since its passage, it is impossible to perceive how it has come to be, that a 

 [*484]  power belonging to the Legislature of 1853 is denied to that of 1860.
When the number of the force existing at the time of the adoption of the Constitution is considered in connection with the Act of 1852, ch. 274, which assigned to the whole city of Baltimore twenty-four justices and forty-four constables, sixty-eight in all, and [**194]  thirty-two less than the number of the police force under the Act of 1812, it is next to impossible to believe, that it was intended these justices and constables should constitute the permanent police body of Baltimore.
On the whole then, it is but fair to assume, that the purpose of the 19th section of the 4th Article of the Constitution, in its reference to justices of the peace and constables, so far as the city of Baltimore is specially concerned, was merely to provide for an adequate number to perform the duties it had been customary to assign to them prior to the adoption of the Constitution, and not to withdraw them from such duties and appropriate them to the discharge of the more complicated and laborious offices of the ordinary policeman, such as had been executed under the Act of 1812, and the ordinances passed in pursuance of the authority which it conferred. The section leaves with the State its police power, subject only to one limitation, or rather, more correctly speaking, to the participation of the Mayor and City Council of Baltimore in its exercise, in certain emergencies, by the appointment of a temporary additional police.
It is said that the proviso to [**195]  the sixth section of the Police Act, which provides, "That no Black Republican, or supporter of the Helper Book, shall be appointed to any office under said Board," vitiates the whole of it, because it adds to the disqualifications for office prescribed by the Constitution.
Were this court permitted to gather from newspapers and partizan harangues the information on which to pronounce its judgments, it might be able to determine what is meant by a "Black Republican," and a supporter of the "Helper Book;" but these are sources of intelligence denied to it. It has no judicial knowledge of their signification. As they 

 [*485]  stand in the Act, they are unintelligible and seemingly incapable of definition, and, for anything appearing, wholly inconsistent with its general scope and object.
There is no such crime known to the laws of Maryland, as that of being a "Black Republican," or "a supporter of the Helper Book." If the Helper Book be an inflammatory appeal to the passions of the servile portion of our population, it is (if it shall deem it expedient to do so) for the Legislature to prescribe the punishment for such white persons as shall be convicted of having [**196]  it in their possession. The Act, among other qualifications, requires that the appointees under it shall be white men; and there is nothing in the Code making it criminal in them, either to sympathize with, or endorse the sentiments contained in the Helper Book.
Judicially uninformed of the meaning of the words, nothing can be pronounced in regard to them but this, that if under them the true names of crimes are cloaked and concealed, of course, on their exposure, the parties convicted of them would suffer whatever of disability the Constitution and laws denounce against them, and if it be of such a degree as to disqualify for office, the prohibition would be constitutional and proper. But, if they be construed to include an unconstitutional prohibition, or are, in a legal point of view, nonsensical and impertinent, under the decisions of this court, they are to be excluded from the Act, without impairing the efficiency of the remainder of it. In either aspect, they constitute no valid objection to the law.  Davis vs. The State, 7 Md. 151.
The power given to the Commissioners, in a certain contingency to issue certificates of indebtedness, is not properly [**197]  before the court on this appeal. No such certificates have been, or may ever be, issued. It might perhaps be time enough to pronounce judicially in regard to it, when the validity of such certificates is contested, which cannot occur until they have an existence by the utterance of them. But the question has been most fully argued at the bar, and, were it necessary for the determination of this case, there ought to be no hesitation in deciding, that such certificates of indebtedness 

 [*486]  are not within the purview of the constitutional interdict, as expounded by the Supreme Court of the United States, the tribunal whose judgment is conclusive on all in regard to the matter. Briscoe & others vs.  The President and Directors of the Bank of the Commonwealth of Kentucky, 11 Peters 257.
Another objection to the Act, is the power it confers on the Board of Commissioners to call out the militia; it being alleged that it is an improper interference with the Governor's constitutional prerogative, under the ninth section of the second Article. The section is, in no particular, more comprehensive of power to the Governor than was the 33rd section of the Constitution [**198]  of 1776. By the latter the Governor was, with the advice and consent of the Council, authorized to embody the militia, and when embodied, was alone to have "the direction thereof." Under the present Constitution he "may call out the militia to repel invasion, suppress insurrections, and enforce the execution of the laws; but shall not take the command in person without the consent of the Legislature." And yet, under the Constitution of 1776, no one doubted the power of the Legislature to authorize the calling out of the militia without the consent of the executive. Accordingly many Acts were passed, making it the duty of subordinate officers to bring their commands into the field, on the requisition of certain civil officers. The following Acts may be referred to as instances of the exercise of the power: 1798, chapter 100, section 10; 1807, chapter 128, section 6; 1813, chapter 19, sections 2 and 5; 1816, chapter 193, section 18; 1823, chapter 188, section 70; 1834, chapter 251, section 57; 1835, chapter 14; 1835, chapter 107.
There is nothing whatever in the Act which abridges the constitutional power of the Governor; he still has, under it, the power to call out the [**199]  militia, "to repel invasion, suppress insurrections and enforce the laws." The whole scope of the authority given to the Commissioners is not more extensive than that which had been previously conferred on others. The purpose of the delegation is as obvious as it is legitimate. 

 [*487]  It is to enable the Commissioners to discharge faithfully an important duty cast upon them, that is the dispersion of tumultuous and riotous assemblages, (whether sudden or preconcerted,) having for their design the outrage of the citizen, either in his person or his property, or both; to sustain in an emergency, the legally constituted authorities in their resistance to the violence of mobs, and the like disorderly bodies. The arguments adduced to show the dangers possible to flow from an injudicious employment of the authority, would be in no degree weakened if the power were deposited elsewhere. All delegated power is liable to abuse from the wicked motives, caprice or ignorance, of its depository. And yet, the very existence of government requires it should be confided to the custody of some one. The jealous watchfulness of a free people, and the ultimate liability to the injured of those who [**200]  abuse their trust, together with the innate sense of right which every sane man has, are the only guarantees it is within the province of the law maker to afford the citizen. In a word, every human contrivance challenges the confidence and trust of those for whose advantage it is intended. Absolute safety, under every possible phase of circumstances, is not to be expected, because the frailty of mankind will not allow it. Government itself, in one sense, is an evil, but it is a necessary one, and must be borne for the general good it secures.
If the section conferring the power on the Board, were condemned, then there would be no authority with the civil officers in Baltimore to call out the militia to suppress any sudden outbreak, the Legislature having, at its last session, by Act of 1860, chapter 6, repealed the seven hundred and sixth section of the fourth Article of the Code of Public Local Laws, which gave to the Mayor of the city of Baltimore, and the judge of the Criminal Court of Baltimore, and the judge of the Superior court of Baltimore, the power to order out the militia. The effect of this law, taken in connection with the Police Act, is to confine the power, so far [**201]  as the city of Baltimore is concerned, to the Governor and the Commissioners of the Board of Police.

 [*488]  Another constitutional objection is to the provision, making it the sheriff's duty to act under the Board in the preservation of the public peace and quiet, and to call out the posse, if required by them, and enabling the Board, whenever the exigency, in their judgment, warrants it, to assume the control and command of all conservators of the peace in the city.
The 20th section of the fourth Article of the Constitution, which mentions the office, and provides for filling it, does not specify or describe the powers and duties of the sheriff. These are left to the common law and the Acts of Assembly. The charge of the other conservators of the peace is nowhere, in the Constitution, given to him. There is nothing to prohibit the Legislature from adding to or diminishing his duties, provided those added be not in conflict with his office as sheriff. And what was said in Georgia of the office of sheriff in that State, is equally applicable to that officer and his duties in Maryland. In the case of State vs. Dews, R. M. Charlton's Rep., 404, it was said by the court:  [**202]  
"It is true that the appointment of sheriff confers upon him the right to execute the duties of the office, but, from the nature of the office, those duties may be changed by law. It is, in this State, a purely ministerial office, whose function and province is to execute duties prescribed by law. From the very nature of such an office, its powers are the result of its duties; in reference to it, the maxim is strictly true, that 'Power and duty are correlative,' but its powers do not extend beyond, they are the mere consequence of its duties. The holder of such office has power only to execute its duties, and because such duties are prescribed to and imposed on him. The idea that the duties of a ministerial officer cannot be changed, will involve an inversion of the order of things, and be a flagrant absurdity; it would invest him, who is a mere minister and servant, with authority to limit the power of, and exercise an over-mastering control over, those from whom he is to receive the law. Those duties are the mere creatures of law, and are, in their very essence, changeable by the law-making power; and his rights, which are derivative only from those duties, cannot prevent their [**203]  

 [*489]  creation or change. His rights, which are the consequence of his duties, cannot intercept the authority of the Legislature to act on those duties." Besides all this, "every citizen summoned by an executive officer to aid him in the preservation of the public peace, or in the service of civil or criminal process, or in the arrest of a felon, is bound to perform the service required, although it may subject him to danger, as well as additional labor, trouble and expense." The State vs. Mayhew, 2 Gill 487.
The question next in order to be considered is, whether the USE of the property ought to be given, as demanded in the petition for the mandamus. It was in the discussion of this question, one of the counsel for the respondents, Mr. Schley, whilst animated by a zeal indignant against what he considered a violation of the great universal law which distinguishes right from wrong, "quod semper, quod ubique, quod ab omnibus creditum est," poured forth, in warm language, his denunciation of the purpose and effect of the section, as if it wrought a spoliation of what he, and those whom he represented, held sacred as their right. None who heard it could [**204]  have failed to appreciate the eloquence, nor the fervor which gave to it the charm of a forcible utterance. Its influence on the bench was, as it should have been, but momentary, and the question, in its original simplicity, re-appeared for the calm judicial disposal.
The petition for the mandamus states, that the persons designated in the Act as Commissioners, organized as a Board on the sixth of last February, and that, to enable them to discharge the duties cast upon them, they need the use of the station-houses, and other buildings specified by them. The prayer for the mandamus, which the writ must follow, is, that the court will issue "the writ of mandamus to the Mayor and City Council of Baltimore, commanding and enjoining them, the said Mayor and City Council, immediately after the receipt thereof, and without delay, to furnish and allow to the Board of Police of the city of Baltimore, for the police now under its exclusive management and control, as well the use of the Fire Alarm and Police Telegraph in said city, as of 

 [*490]  all the station-houses, watch-boxes, arms, accoutrements and other accommodations and things provided by the said Mayor and City [**205]  Council of Baltimore, for the use and service of the police created by it, as fully and to the same extent as the same, at the time of the passage of said Act, were or might be used by or for the said city police."
The right to the use demanded, is given by the express language of the 12th section of the Act, and the only question, therefore, is: Had the Legislature the constitutional power to provide, as it has, for it?
The property was purchased with the money of owners of property, and for the use and benefit of the community at large. Its dedication is to the public. It belongs, in fact, to the people, although for its more effective use and protection, the legal title to it is vested in the corporate authorities of the city. Those authorities, for reasons deemed sufficient, were brought into existence just as has been the Board of Commissioners, for the public good. Any power given to the latter, by the Act of their creation, is on the same limitation as that conferred on the Mayor and City Council by their charter; that is to say, both owing their origin to a legislative Act, the powers conferred by it, in each case, are held subject to the revision, modification, or repeal [**206]  of the body from whence they have been derived. In other words, they are political powers, held and exercised for political purposes by political or municipal bodies as distinguished from private corporations. "Public corporations are such as are created by the government for political purposes, as counties, towns and villages, and the whole interest in them belongs to the public." 2 Kent's Com., 275. "Over public property they (the States) have a disposing power," per Justice Patterson, 2 Dallas 320. Mr. Justice Story, in delivering the opinion of the court in 9 Cranch 52, says: "In respect also to public corporations, which exist only for public purposes, such as counties, towns, cities, &c., the Legislature may, under proper limitations, have a right to change, modify, enlarge or restrain them, securing, however, the property for the use of those for whom, and at whose expense, it was originally purchased." 

 [*491]  The Act of the last session has preserved the property for the use of those for whom, and at whose expense, it was purchased. The only change effected in regard to it is as to the persons [**207]  who shall have the control and management of it. The use of it is in no manner altered. A multitude of decisions could be brought forth from every section of this country and England, showing the difference between public and private corporations. In 9 Gill and Johnson, 401, it is said: "Public corporations are to be governed according to the laws of the land, and the government has the sole right, as trustee of the public interest, to inspect, regulate, control and direct the corporation, its funds and franchises. That is the essence of a public corporation." And again: "A public corporation is one that is created for political purposes, with political powers, to be exercised for purposes connected with the public good in the administration of civil government; an instrument of the government, subject to the control of the Legislature, and its members officers of the government for the administration or discharge of public duties, as in the cases of cities, towns," &c. Under the Constitution of Maryland the city of Baltimore is recognized as a public corporation, established for public purposes, and in this character it is in nowise distinguished from that [**208]  of the several counties; and, except in so far as may be forbidden by the Constitution, like them it is liable to the control of the Legislature. Were this not so, civil government would be an impossibility, because of conflicting claims to the supreme power urged by the different geographical departments into which the State is separated. The power (under the limitations alluded to) which creates, can revise, modify, annihilate; it can change, not only the limit, but the nature of the power, and also the depository of it. Mr. Justice Story, in Dartmouth College vs. Woodward, 4 Wheaton 518, says: "It is admitted, that the State Legislatures have power to enlarge, repeal and limit the authorities of public officers in their official capacities, in all cases, where the Constitutions of the States, respectively, do not prohibit them; and this, among others, for the very reason, that there is no express 

 [*492]  or implied contract, that they shall always, during their conuance in office, exercise such authorities. They are to exercise them only during the good pleasure of the Legislature." These views are fully sustained in this State by many decisions,  [**209]  and necessarily so by that of The Mayor & City Council of Baltimore vs. Robert Lemmon, unreported; The State, use of Washington County vs. Baltimore and Ohio Rail Road Co., 12 Gill and Johnson, 399; and by that pronounced, at this term, in the case of the Governors and Visitors of St. John's College, ante., 330. They are sustained in all of the following cases, with more or less distinctness. 11 Iredell 563.  3 Hill, 531. 23 Connecticut, 416. 17 Georgia, 56. 22 Georgia, 506. 13 B. Munroe 1. 12 Louisiana Annual Reports, 515.  4 Scammon 269; and to use the language of the court in 3 N.H. 532: "Towns are public corporations, created for purposes purely public, empowered to hold property, and invested with many powers and faculties, to enable them to answer the purposes of their creation. In the creation of such corporations, there must, in the nature of things, be reserved by necessary implication, a power to modify them in such manner as to meet the public exigencies. There would be great absurdity in the supposition, that corporations, created by the Legislature [**210]  for purposes purely public, could not be modified and altered, from time to time, as the public convenience or necessity might require. A power to alter and change such a corporation, and adapt it to the purposes it was intended to accomplish, is implied in its very nature." "They (the Legislature) have also under their control the disposition of its corporate property, or that which is held for municipal and corporate purposes." 29 Vt. 19.
In the demand made in the case now before the court, there is no perversion of the use of the property; but, on the contrary, it is to be continued in that for which it was purchased and is now held, and in none other.
The objection that the Legislature had no right to delegate any portion of the taxing power to the Board of Police, is fully answered by the decisions of the late Court of Appeals. 

 [*493]  In the case of Burgess vs. Pue, 2 Gill 11, the court say: "We think there was no validity in the constitutional question which was raised by the appellee's counsel in the course of his argument, relative to the competency of the Legislature to delegate the power of taxation to the taxable inhabitants,  [**211]  for the purpose of raising a fund for the diffusion of knowledge and the support of primary schools. The object was a laudable one, and there is nothing in the Constitution prohibitory of the delegation of the power of taxation, in the mode adopted, to effect the attainment of it; we may say that grants of similar powers to other bodies, for political purposes, have been coeval with the Constitution itself, and that no serious doubts have ever been entertained of their validity. It is therefore too late, at this day, to raise such an objection." See, also, the case of The State vs. Mayhew, 2 Gill 487, where the same doctrine is fully sustained.
The opinion of the learned judge, who decided this case in the Superior Court, shows the bestowal of great care, and his usual ability in its preparation. The views there taken, are in full concurrence with those herein presented. The judgment pronounced by him must be affirmed.
As it was agreed that the case at the relation of the Mayor and City Council of Baltimore, as well as that at the relation of Charles Howard and others, should be considered as submitted for the decision of this court, and inasmuch as all the [**212]  questions applicable to both, have been considered and decided, the order of the Superior Court in the former, as well as that in the latter, is to be affirmed.
Order affirmed in each case. 

125 of 196 DOCUMENTS 

FEDERAL HILL STEAM FERRY COMPANY vs. THOMAS P. MARINER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 224; 1860 Md. LEXIS 21 

April 11, 1860, Decided 

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

Trespass on the case, brought on the 14th of August 1856, by the appellee against the appellant, to recover damages for piling wood and plank across the end of West Falls Avenue, in Baltimore city, and thereby obstructing the business of the plaintiff, who kept several small boats for hire, and transported passengers and freight from the end of said avenue to various points within the harbor of said city. The allegations of the nar. are sufficiently stated in the opinion of this court. The defendant pleaded five pleas: 1st. The general issues. 2nd. That the end of said avenue is a wharf, built into the harbor below high water mark, belonging to the Mayor and City Counsel of Baltimore, who authorized the defendant to put the wood there, and denying that any plank were put there. 3rd. Denies any obstruction, and avers that the wood was so piled as to allow sufficient space for the plaintiff's passengers and freight. 4th. That the wrongs complained of were done by the defendant and one James Worthington, whom the plaintiff sued and recovered $ 50 damages therefor, before a justice of the peace, which judgment was affirmed, on appeal, by the Court [**2]  of Common Pleas, and has been paid to the plaintiff. 5th. That the defendant was chartered by the State for a steam ferry within the harbour, and, under that authority, it had established a ferry from the foot of West Falls avenue to Federal Hill, and that the plaintiff was, at the time of the wrongs complained of, carrying on a ferry between the same points, without a license, to the injury of the defendant's traffic, and that the acts complained of were done by the defendant to arrest said injury and such unlawful business.

Issues were joined on the first four pleas, and the plaintiff demurred to the fifth, which demurrer the court (MARSHALL, J.) sustained. In the course of the trial upon the issues of fact, five exceptions were taken by the defendant. It is not necessary to state these exceptions at length, inasmuch as this court reversed the judgment upon the rulings in the third and fourth exceptions, (which, with the other facts of the case necessary to an understanding of the opinion of this court, are sufficiently stated therein,) and refused a procedendo upon the ground that the recovery of damages for the same obstruction, obtained by the plaintiff in his suit against [**3]  Worthington, and satisfaction of that judgment for such damages, was a bar to the present suit.

The verdict and judgment were in favor of the plaintiff for $ 25 damages, and the defendant appealed. The principal question discussed in this court on the part of the appellant, and, to some extent, by the appellee, and which was raised by various prayers, and by the fifth plea, and the demurrer thereto, was, whether the business of the plaintiff, in carrying on a ferry between the points stated, without a license, was lawful or not? As this question was not decided by the court, the arguments upon it are omitted.  

DISPOSITION:
Judgment reversed without a procedendo.  

HEADNOTES:

In an action for damages for an obstruction to the plaintiff's business, the defendant proved that the plaintiff had previously sued a third party for damages on account of the same obstruction, and recovered a judgment for damages therefor, which judgment was paid to the plaintiff by the defendant in that suit. The docket entries of this former judgment show, that the suit was instituted before a justice of the peace, and that his judgment in favor of the plaintiff in that action was affirmed, on appeal, by the Court of Common Pleas, and satisfied after execution issued thereon. HELD:

1st. That it was not proper to admit parol evidence on the part of the plaintiff in this action, for the purpose of proving that the judgment of affirmance, in the former suit, was not for the obstruction, but for an arrest and false imprisonment.

2nd. There being nothing in the proceedings of the court, as set forth in the docket entries, tending to show any amendment, the judgment of affirmance must be construed as sustaining the judgment of the justice, and not as having been rendered upon a totally different cause of action.

3rd. The fact that the defendant gave parol proof that the former judgment was for damages on account of the same obstruction, being consistent with the judgment, does not authorize the plaintiff, under the pretence of explaining or rebutting such proof, to give evidence varying from and contradictory to the judgment as shown by the docket entries.

4th. The judgment in the former suit being a recovery for damages for the same obstruction now in controversy, and that judgment having been satisfied, no precedendo will be awarded upon the reversal of the judgment in favor of the plaintiff in this case.  

COUNSEL:
Geo. H. Williams, for the appellant, argued, that it was error in the court below to admit the evidence offered in the third and fourth exceptions, to vary, contradict, or explain the record entries of the judgments in the case of Mariner vs. Worthington, given in evidence by the defendant, and there was also error in the refusal of the defendant's sixth and seventh prayers, which put it to the jury that there could not be a double recovery for the same tort, and that there could not be another recovery for the same tort after [**4]  the payment and satisfaction of a judgment obtained therefor. 11 G. & J., 182, Garrott vs. Johnson.

I. N. Steele, for the appellee, argued, that the witness Worthington, having stated in his examination-in-chief that the judgment against him was, he believed, given because he leased the wharf, &c., and "that the same evidence was given in the suit against him that was given in this case," it was clearly competent, on cross-examination, to ask him what evidence was offered in that suit, and the plaintiff had also the right to contradict this proof by showing that other and different evidence was given in that suit, and the testimony of Reynolds, in the fourth exception, and the evidence objected to in the third exception, was therefore admissible. Nor was there any error in rejecting the sixth and seventh prayers, because these prayers sought to make the recovery against Worthington a bar to the plaintiff's recovery in this action if the suit against Worthington was brought originally for the same obstruction now sued for, although it is expressly proved that evidence was given at the trial of that cause, of the arrest and imprisonment of the plaintiff by direction of Worthington,  [**5]  and that the judge of the Court of Common Pleas, when it was proposed to amend the cause of action so as to make it a claim for damages for arrest and imprisonment, said the case might go on and he would consider the amendment as made. In this view, also, it was proper to admit the evidence in the third and fourth exception. 11 G. & J., 173, Garrott vs. Johnson. 2 Md. Ch. Dec., 178, Hughes vs. Jones.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*227]  ECCLESTON, J., delivered the opinion of this court.
This is an action on the case instituted by the appellee against the appellant, in the Court of Common Pleas for Baltimore city. The object of the suit is to recover damages for obstructions to the business of the appellee by the appellant.
The nature of the claim as presented in the nar. is, that the plaintiff, at the time of the injury, was, and for several years before had been, the owner of ten small row boats, which were kept by him for hire, at the foot of West Falls Avenue, a public highway in the city of Baltimore, and used and employed by him in hiring the same, and in transporting passengers, and carrying freight [**6]  from the foot of said avenue to various points and sundry places within and about the harbor of the said city, and were so hired, used and employed by him during the time or period aforesaid; and that the defendant, did put, place and pile a large quantity of wood and certain pieces of plank, upon and across the said avenue, near to the foot thereof and near to the said harbor, and did thereby, and by other ways and means, barricade and obstruct the said avenue at the place aforesaid; which said barricade and obstruction remained upon and across the said avenue for a long time, to wit, one month; by reason of which passengers were prevented from having access, and persons prevented from hiring and carrying freights to, and using the said boats of the plaintiff, during the period last aforesaid, and the business of the said plaintiff in hiring his said boats and in transporting passengers, and carrying freight within and about the said harbor, was, during the said last period, discontinued, destroyed and broken up, and the plaintiff damaged and injured in his said business to a large amount, to wit, five hundred dollars.
The defendant pleaded five pleas, four of which resulted in issues [**7]  of fact, and to the fifth a demurrer was filed.
The court ruled the demurrer good, and upon trial of the 

 [*228]  issues of fact, a verdict of $ 25 damages being rendered in favor of the plaintiff, the defendant appealed.
In the third bill of exceptions, among other proof, is contained evidence offered by the defendant, for the purpose of proving that this plaintiff had sued James Worthington and recovered a judgment against him for damages for the same obstruction on which this suit is based; and that the damages for which that judgment was rendered had been paid to the plaintiff by the defendant in that suit. The said Worthington was examined as a witness, in the present case, for the now defendant. Among other things, he stated, "that the same evidence was given in the former suit, with the exception of one Smith, as had been given in this, and for the same obstruction."
On cross-examination of this witness, the plaintiff's counsel asked if in the suit against him referred to, there was not evidence offered that the plaintiff had been arrested and imprisoned by the direction of the witness? To this question the defendant objected, but the court overruled the objection,  [**8]  holding the question proper to be answered. And the witness then stated, "that at the said trial there was evidence given to show that the police officers, making the arrest, had been sent there to act under his authority, and a police officer stated he supposed himself acting under his order in making the arrest." To which the now defendant excepted.
In the fourth exception it appears the plaintiff asked the witness, L. M. Reynolds, "to state what was the evidence at the former trial between Mariner and Worthington, which question was objected to by the now defendant, but the court overruled the objection and allowed the question, upon the ground that parol testimony having been given by defendant to connect the judgment in that case, with the obstruction complained of here, evidence may be given to explain or rebut the same." The witness then stated that he did not recollect the whole evidence, nor the exact words; that he had tried the case in court, but not before the magistrate. He then proceeded to give his recollection of the evidence at the trial of the case in court, from whose statement it appears to 

 [*229]  have been there proved, that the officers were sent to [**9]  the end of West Falls Avenue, to support the authority of Worthington, who was the Harbor Master, and who directed the wood to be put upon the wharf logs at the end of the wharf; that the police officers acted under the orders of Worthington; that the police officers testified that in making the arrest they supposed themselves acting under orders of Worthington, and would not have arrested Mariner by orders of a private individual. To all which the now defendant objected, upon the ground that the purpose for which it was offered was inadmissible, and because the witness professed that he could not recollect the whole of the evidence nor the exact words of the witnesses. The objection being overruled the defendant excepted to the ruling of the court in relation to the question asked by the plaintiff, and also in regard to the evidence in reply thereto.
In the fifth bill of exceptions it is said: "the plaintiff proved, by the said Reynolds, that at the trial of the case against Worthington, the court said he had mistaken his cause of action, whereupon he proposed to amend by an action of arrest and false imprisonment, when the judge said he might go on and the amendment would be [**10]  considered made.
The fifth exception then contains thirteen prayers offered by the defendant, and one asked by the plaintiff.
It will be seen that the third and fourth bills of exceptions present questions in regard to the admissibility of evidence, to show what proof was given in the cause between Mariner and Worthington. That was a suit originating before a justice of the peace, from whose judgment an appeal was taken to the Court of Common Pleas. It appears from an account, filed with the justice, the plaintiff's claim was $ 50 damages, "for obstructing Liffy street, alias West Falls Avenue." Upon this claim the justice was requested to issue, and, in compliance with that request, he issued a summons for Worthington to answer unto Mariner "in a plea of damages."
From the entries of the justice, as stated in the second exception, 

 [*230]  it appears the process was served, that the parties appeared and proceeded to trial, and judgment was given by the justice, "in favor of the plaintiff for $ 50 debt and $ 10.78 cents cost, with interest until paid." From this judgment Worthington appealed to the Court of Common Pleas. The proceedings on the appeal, as set forth in [**11]  the second exception, show that the appellate court affirmed the judgment, on which a fi. fa. was issued and finally entered "satisfied, order of appellee's att'y, f'd."
It was not denied that the suit before the justice was brought to recover damages for the same obstruction on account of which the present action was instituted. Moreover, the evidence establishes the fact that the two suits were based upon the same obstruction, that being the foundation of the justice's judgment. And, according to the written evidence furnished by the entries from the Court of Common Pleas, that judgment was affirmed. Under these circumstances it was not proper to admit parol evidence, for the purpose of proving that the judgment of affirmance was not for the obstruction, but for an arrest and false imprisonment.
It has been insisted by the appellee's counsel that he had the right to offer such proof, because evidence had been given in this case to show that, at the trial of the appeal before the Court of Common Pleas, it was suggested by the court that the plaintiff's counsel had mistaken his cause of action; whereupon the counsel "proposed to amend by an action of arrest and false imprisonment, [**12]  when the judge said he might go on and the amendment would be considered made." But there is nothing in the proceedings of the court, as set forth in the entries, even tending to show any amendment whatever. On the contrary, quite the reverse, for the judgment of the justice was affirmed. Was it proper that a judgment of affirmance should have been given, if the amendment alluded to had been made? Believing it would not, we think the judgment of affirmance should be construed as sustaining the judgment of the justice, and not as having been rendered upon a totally different cause of action.
The appellant having given parol evidence to prove that 

 [*231]  the judgment against Worthington was for damages on account of the same obstruction complained of in this suit, it has been contended that the plaintiff was authorized to offer parol proof to explain or rebut that given by the present appellant. But the difference between the two consists in the former being consistent with the nature of the judgment before the justice and the affirmance thereof, whilst the latter offer proposes to give evidence varying from, and contradictory to, those judgments, as they appear from the written [**13]  evidence of the proceedings, in relation to them, furnished by the entries from the justice and from the Court of Common Pleas.
From the views expressed, it will be seen, we think, the court below erred in the rulings in the third and fourth bills of exceptions, and, therefore, the judgment must be reversed.
The judgment obtained by Mariner against Worthington, being considered by us a recovery of damages for the same obstruction now in controversy, and that judgment having been satisfied, no precedendo will be awarded in this case. This being so, no opinion need be expressed in regard to the other questions presented by the record.
Judgment reversed without a procedendo. 

126 of 196 DOCUMENTS 

NEGRO ANN MARIA CORNISH vs. THE STATE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 208; 1860 Md. LEXIS 19 

March 21, 1860, Decided 

PRIOR HISTORY:
 [**1]  Error to the Criminal Court of Baltimore city.

The plaintiff in error (a free negro) was indicted for the larceny "of one mouseline-de-laine dress, of the value of two dollars, current money, and one muslin skirt of the value of one dollar, current money." Upon a verdict of guilty the court (STUMP, J.) sentenced the convict to "be sold at public auction, by the sheriff, for the period of two years and six months from date, as a slave, out of the State, according to the provisions of the Act of 1858, ch. 324." To correct this judgment the present writ of error was sued out by the traverser.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

The Act of 1858, ch. 324, provides, that if any free negro shall be convicted of feloniously taking and carrying away the personal goods of another, under the value of five dollars, "he shall be sentenced to be sold as a slave for a period of not less than two nor more than five years." A free negro was convicted of this offence, and sentenced to "be sold at public auction, by the sheriff, for the period of two years and six months from date, as a slave, out of the State." HELD:

That this judgment was erroneous in directing the convict to be sold "out of the State;" the court has no power to superadd any other punishment to that prescribed by the Act of Assembly. 

COUNSEL:
J. Morris Cochran for the plaintiff in error.

The only question presented by this record is whether, upon conviction of a free negro, for larceny, the court is authorized to sentence the convict to be sold as a slave out of the State. The plaintiff in error contends that no punishment for crime other than that prescribed by law can be inflicted. 1 Chitty's Crim. Law, 710, 712. 4 Bl. Comm., 377, 378. The Act of 1858, ch. 324, to "modify the punishment of free negroes, convicted of larceny and other crimes," enumerates eight distinct crimes, to each of which a different [**2]  punishment is affixed. In five of them the court is authorised to sentence the negro convicted "to be sold out of the State," and in three of them to sentence him only "to be sold as a slave," for a specified term of years. The crime of which the plaintiff in error was convicted, is one of the three to which is appended the last mentioned penalty or punishment. It is obvious, therefore, that the court erred in passing the sentence that the plaintiff in error should be sold "out of the State," as shown by this record; that by passing it the court assumed a power not given to it by the Act of Assembly under which the conviction was obtained, and which power, is, by implication from the Act referred to, withheld. Dwarris on Stat., 707. 8 Barn. & Cress., 74, Rex vs. Bolton. 14 Md. Rep., 412, Watkins vs. The State. Acts in derogation of the liberty of the subject should be strictly construed. 4 Bing., 183, Looker vs. Malcomb. Dwarris on Stat., 479. Upon the authorities cited, and particularly that of Watkins vs. The State, in which the precise point here suggested arose, it is submitted that the judgment in this case should be reversed.

Milton Whitney, States Attorney for Baltimore [**3]  city, for the State.

It will be noticed that the Act of 1858, ch. 324, does not embrace the crime of larceny, except for goods "valued at five dollars and upwards," and in the case of Watkins vs. The State, Watkins was convicted of the larceny of a watch valued at six dollars, thus bringing his case under the provisions of that Act. This case is relied on by the plaintiff in error, but it is submitted it is not a case in point. It does not appear from the record in this case under what particula Act the convict was sentenced, and if there be any doubt as to whether she was sentenced under the Act of 1858, and it be found that that Act does not gratify the law, if there be a law which the sentence of the court will meet, the law will presume that she was sentenced in accordance with it. The Act of 1835, ch. 200, will gratify the sentence of the court, the provisions of which clearly give the court that power. Nothing appearing upon the record, but that she came within this last mentioned Act, the presumption must be in favor of the power exercised by the court; the general policy of the law has been to sell negroes convicted of crime out of the State, as will appear by reference [**4]  to the several Acts on this subject. Acts of 1831, ch. 323, sec. 12, and 1835, ch. 200, sec. 3.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*210]  BARTOL, J., delivered the opinion of this court.
There is no essential difference between this case and that of Watkins vs. The State, decided at June Term 1859. (14 Md. 412.)
In Watkins' case this court reversed the judgment because it was not in conformity with the requirements of the Act of Assembly. By the Act of 1858, ch. 324, sec. 1, the punishment prescribed for the offence of which Watkins had been convicted, was, that he should be "sold at public auction as a slave," for a prescribed period, whereas the judgment of the court was that he should be sold as a slave for five years, "out of the limits of the State." Considering that judgment as being unauthorized by the law, it was reversed.

 [*211]  That decision is conclusive of the question presented by this record.
The plaintiff in error was convicted of a crime within the fifth clause of the 1st section of the same Act. That clause provides that, "if any free negro shall be convicted [**5]  hereafter, of feloniously taking and carrying away the personal goods of another person, under the value of five dollars, or," &c., &c., "he shall be sentenced to be sold as a slave for a period of not less than two, nor more than five years." The judgment pronounced by the Criminal Court, as it is set out in the record is, "that the said Ann Maria Cornish be sold at public auction, by the sheriff, for the period of two years and six months from date, as a slave, out of the State." This judgment is erroneous; the court has no power to superadd any other punishment to that prescribed by the Act of Assembly. There are some offences enumerated in the same Act for which the convict may be sentenced to be sold as a slave, "either within or without the State, according to the discretion of the court," but the offence of which the plaintiff in error was convicted is not one of them.
Judgment reversed. 

127 of 196 DOCUMENTS 

THOMAS CREAMER vs. GEORGE STEPHENSON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 211; 1860 Md. LEXIS 20 

March 21, 1860, Decided 

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

Debt brought, on the 30th of August 1856, by the appellee against the appellant, upon a bond of indemnity, given by the defendant to the plaintiff, in the penalty of $ 2000, dated the 3rd of December 1853, and in which are the following recitals and conditions:

"Whereas, the above bounden Thomas Creamer, by deed bearing even date with these presents, hath conveyed to said Stephenson a certain tract of land, situated on the Tide Water canal in Harford county, and hath covenanted to warrant and defend the same to the said Stephenson and his heirs, against all persons claiming the same or any interest therein, or any part of the purchase money thereupon, by, through, or under him, the said Thomas Creamer, or by, through, or under a certain John T. Adams, by whom said land was conveyed to said Creamer, except three several sums of money amounting in the aggregate to $ 3028.28, which said Stephenson has agreed to pay on the mortgage of said Adams to Louisa J. Wadsworth, as in said deed is mentioned and provided; and the said Thomas Creamer has especially agreed to indemnify and save harmless the said Stephenson against all the rest [**2]  and residue of said mortgage debt, and against the claim of a certain Thomas and B. C. H. Phenix, under a mortgage on said land, executed by said Adams, on or about the 12th day of October 1852, and against the claims of a certain Jacob Tome, on a judgment against said Adams, upon which an attachment has been issued and laid in the hands of said Stephenson, as garnishee; Now, the condition of this obligation is such, that if the said Thomas Creamer shall in all things, well and faithfully perform all the covenants made by him in the deed aforesaid, and indemnify and save harmless the said Stephenson against all and singular the claims aforesaid, and against all costs and reasonable charges to which he may be subjected in resisting said claims, and shall refund to said Stephenson all such sums of money as he, the said Stephenson, may be legally required to pay, on account of said claims, or upon any other liens upon the land aforesaid, or the purchase money therefor, which may have originated since the date of the said Adam's purchase thereof, from Louisa J. Wadsworth, except the three said sums of money, amounting to $ 3028.28, which said Stephenson has assumed and agreed to pay as [**3]  aforesaid, then and in such case this obligation to be null and void, otherwise to remain in full force and virtue in law."

It was agreed that the defendant should plead nil debet, and that under that issue either party may offer any evidence which would be competent under any issue, and that all errors in pleading be waived.

1st Exception. The plaintiff having stated that he proposed to offer in evidence the bond and the record of a judgment on attachment, in the circuit court for Harford county, in which judgment was recovered against him, and subsequently satisfied, the defendant, by his counsel, stated that this judgment was obtained against the present plaintiff by default, and was in no manner binding on the defendant in the present case, and that he would resist this claim upon the ground, among other things, that said judgment could have been prevented, if the plaintiff, as garnishee, had defended that attachment suit. The plaintiff then offered in evidence the bond, the execution of which was admitted, and the record in the attachment suit, the defendant reserving exceptions to certain portions of said record. The plaintiff further offered in evidence the sworn statement [**4]  of Henry W. Archer, which it was agreed should be admitted in evidence as if proved on the stand, subject, however, to all legal exceptions as to the competency of all or any portions thereof. The defendant objected to a portion of this statement, upon the ground stated in the opinion of this court, but the court (LEE, J.) overruled this objection and admitted it with the qualification also stated in the opinion of this court. To this ruling the defendant excepted.

2nd Exception. The defendant then objected to the admissibility, in evidence, of a copy of the receipt set forth in the record of the attachment suit, showing payment of the amount of the judgment by Stephenson, on the ground that the same was not the best evidence of the fact of such payment having been made, and was therefore inadmissible to prove such payment. This objection the court overruled and admitted the record as evidence of payment, and to prove that the plaintiff, Stephenson, had paid said judgment, and to this ruling the defendant excepted. (This exception was abandoned in argument in this court.)

3rd Exception. Further evidence was offered on the part of the defendant, showing that the attachment [**5]  was issued by Tome in October 1853, and that judgment, by default, was obtained thereon against Stephenson, as garnishee, on the 17th of November 1854, at the November Term of the circuit court for Harford county, and further tending to show that after May 1853, and up to the date of the judgment obtained by Tome against Stephenson, as garnishee, neither Stephenson nor the defendant, Creamer, owed Adams, the defendant in the attachment, any moneys. The defendant also offered in evidence an agreement between the plaintiff and himself, dated the 24th of September 1853, by which Creamer covenanted and agreed to sell the land in question to Stephenson upon certain terms and conditions, which need not be more particularly stated than to say, in certain contingencies, it provided for a bond of indemnity by Creamer against the claim of Phenix, but makes no mention of any claim of Tome. Other evidence was also offered, on the part of the defendant, which need not be stated more particularly than appears in the following prayers, which were then asked by the defendant:

1st. That the terms of the bond sued on, imposed no obligation upon the defendant, Creamer, to employ counsel to aid in [**6]  defending against the attachment referred to in said bond.

2nd. That the plaintiff having sued upon the bond of the 3rd of December 1853, it is not competent for him to add to or vary the obligations imposed upon the defendant by the terms of that bond, by proof of any verbal agreement or understanding between the parties had at the same time of the execution of said bond.

3rd. That the plaintiff cannot recover in this action unless the jury believe, from the evidence, that he actually paid to Tome, or his counsel, before the institution of this suit, the whole or some part of the attachment claim, referred to in the evidence.

4th. If the jury believe from the evidence, that the plaintiff and defendant entered into the written contract of the 24th of September 1853, on the day of its date, and that afterwards, in October 1853, Tome issued an attachment against Adams, and caused it to be laid in the hands of Stephenson, as garnishee, and that Stephenson, neither at that time nor afterwards, had in his hands any moneys of Adams, nor owed him any; and that afterwards, on the 3rd of December 1853, Stephenson requested and obtained from the defendant the bond of indemnity [**7]  sued on, and required to be inserted therein a special provision to indemnify him against said attachment claim of Tome, and that at the very time of requiring this clause to be inserted, and down to the 17th of November 1854, inclusive, he, Stephenson, knew he held no moneys of Adams and owed him nothing, and well knew the plaintiff in that attachment could not recover judgment against him except through his own default in failing to appear to the attachment and plead to the same, and that Stephenson failed to appear thereto and suffered judgment to go against him for want of such appearance, and failed to notify the defendant, Creamer, of said judgment, after the same had been obtained, and for eighteen months afterwards, and that neither Creamer nor his counsel had any knowledge of such judgment until about the time of the institution of this suit, and that Stephenson, on or about the 8th of September 1856, without any execution or threat of execution having been had or made against him, paid said judgment, then that these facts are evidence from which the jury may find that Stephenson did not pay said money in good faith but by collusion between himself and Tome, and if the jury [**8]  shall so find, then the plaintiff cannot recover in this action.

5th. That by the terms of the bond sued on Stephenson could not call upon Creamer for indemnity on account of the attachment claim of Tome, unless Stephenson was "legally required" to pay the same, and if the jury find from the evidence that Adams, the defendant in that attachment, was not a creditor of either Stephenson or Creamer at the time of issuing of that attachment, or afterwards, and that Stephenson was summoned, as garnishee, to appear to the attachment and failed to do so, and suffered judgment to go against him by default, and that afterwards he did not notify Creamer of the obtention of said judgment, but paid the same without any execution having been issued thereon, or threats of execution made against him, that then Stephenson paid what he was not "legally required" to pay according to the terms of said bond, and he cannot recover in this action.

The first three of those prayers were granted by consent, the fifth was rejected, and the fourth granted with this qualification: "But if the jury shall believe that the defendant, at the time of the execution of the said bond, objected to the plaintiff's [**9]  employing counsel to defend said attachment suit, and undertook himself to procure said attachment suit to be defended; and shall find that in consequence thereof the said Stephenson acting without collusion with Tome, took no further steps to defend said suit, and the defendant, Creamer, failed to employ counsel to defend the said attachment suit, and judgment, by default, was obtained against said Stephenson; that such facts relieve the said case from any inference of fraud arising out of the judgment's being obtained by default."

The court then gave the following instruction to the jury: "If the jury shall find the execution of the bond offered in evidence by the plaintiff, and that the plaintiff, Stephenson, paid the attachment debt mentioned in the record offered in evidence, after a judgment had been obtained, and that the defendant, Creamer, had undertaken to employ counsel to defend that suit, and had had time to defend the same, or to furnish Stephenson with his defence, and failed to defend the suit or furnish Stephenson with a defence, and that Stephenson paid the judgment in good faith and without any collusion or understanding with Tome, then, under the condition [**10]  of the indemnity bond offered in evidence in this case, the plaintiff is entitled to recover for such amount as he may show he has actually paid."

The defendant excepted to the refusal of his fifth prayer, to the qualification added to his fourth, and to the instruction granted by the court. The verdict and judgment were in favor of the plaintiff for $ 356.45, with interest and costs, and the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

An indemnity bond stipulated, among other matters, that the obligor would indemnify the obligee against the claim of a third party on a judgment on which an attachment had been issued and laid in the hands of the obligee, and against all costs and charges to which the obligee "may be subjected in resisting said claim," and refund all sums of money he "may be legally required to pay on account of said claim." A judgment by default was recovered in the attachment case against the obligee, which he paid before execution and then sued the obligor on this bond. HELD:

1st. That it was competent for the plaintiff to prove by parol that, at the time this bond was delivered, the obligor agreed to have the attachment case defended by his own counsel, the bond being silent as to the manner or means to be employed "in resisting," the claim, a parol agreement as to how and through whose agency the resistance was to be made, is not inconsistent with, or contradicting to, the bond.

2nd. The obligee was not bound to wait till an execution was issued before paying this judgment; it was the judgment which fixed his liability, and if he had withheld payment till execution was levied, the obligor might reasonably have complained of such unnecessary accumulation of costs.

It is not admissible to vary or contradict a written agreement by parol, but such evidence is admissible in the case of a latent ambiguity, or to prove any collateral, independent fact, about which the agreement is silent.

Though a patent ambiguity cannot be explained by extrinsic evidence, yet where a question arises as to the general intention of the parties concerning which the instrument is not decisive, proof of independent facts collateral to the instrument may be properly admitted.

Parol evidence may be given of collateral and independent facts which tend to support a deed, provided it is not offered to vary the agreement and is consistent with the deed. 

COUNSEL:
Coleman Yellott, for the appellants:

1st. The bond was the only legal evidence of the contract between the parties, and conversations held at the same time of its execution were inadmissible as evidence, because the sole effect of such evidence must have been to prove a parol agreement, inconsistent with the legal purport of the bond itself. The bond is to be construed by the court. It showed that the attachment suit was to be resisted by Stephenson, at his own cost and charge, whereas the parol agreement, sought to be proven, was to the effect that that suit was to be resisted by Creamer, and at his cost and charge. On this point, see 6 H. & J., 128, Bend vs. Susq. Bridge Co. Ibid., 411, Allegre vs. Ins. Co. Ibid., 435, Watkins vs. Stockett.  [**11]  5 G. & J., 511, Butler & Belt vs. State, use of Contee, et al. 11 G. & J., 457, Newcomer vs. Kline. 5 Gill, 288, Young vs. Frost. 2 Md. Rep., 25, McElderry vs. Shipley. Ibid., 326, Waters vs. Griffith. 4 Md. Rep., 498, Marshall vs. Haney. 6 Md. Rep., 224, Mitchell vs. Mitchell. 9 Md. Rep., 185, Beall vs. Greenwade.

2nd. By the qualification added to the fourth prayer, the court, besides engrafting upon the bond a parol agreement inconsistent therewith, which was entirely erroneous, was further in error, because the question of fraud or collusion was one solely for the decision of the jury, upon consideration of all the facts of the case, but the court undertook to select part only of the facts, and to say that these, if believed, would relieve the case from any inference of fraud. 7 Gill, 367, Richards & wife vs. Swan, et al. 1 Md. Rep., 455, Waters vs. Dashiell. 6 Md. Rep., 236, Mayor & C. C. of Balto. vs. Williams. 10 Md. Rep., 67, Wilson, adm'r of Owens, vs. Smith. Ibid., 77, Balto. & Ohio R. R. Co. vs. Thompson.

3rd. The fifth prayer was improperly rejected, because, 1st, the terms of the bond imposed upon Stephenson the duty of "resisting said claim;" 2nd, the bond did [**12]  not oblige Creamer to refund until Stephenson had been "legally required to pay" after so "resisting" said claim. 6 H. & J., 411, Allegre vs. Ins. Co. 5 G. & J., 511, Butler & Belt vs. The State. 12 G. & J., 36, Hall vs. Creswell. 1 Md. Rep., 203, Dorsey vs. Dashiell. 2 Md. Rep., 326, Waters vs. Griffith. 3 Md. Ch. Dec., 211, McKim & Kennedy vs. Mann. Act of 1715, ch. 40, secs. 3, 7. 15 Verm., 683, Judevine vs. Pennock. 1 Pet. C. C. Rep., 132, Massey vs. Schott et al.

4th. The instruction granted by the court is liable to the same objection urged under our first point. It allowed the jury to consider parol evidence inconsistent with the legal purport of the bond itself.

Levin Gale for the appellee:

1st. The plaintiff below expressly disavowed any intention to use the evidence objected to in the first exception, for the purpose of varying the contract contained in the bond, but claimed that it was admissible, among other things, for the purpose of doing away with the inference of fraud, which the defendant contended should be drawn from the fact that the judgment in the attachment suit was obtained by default. For this purpose, the evidence was perfectly competent as [**13]  well as in general explanation of the circumstances of the case. The bond did not impose any obligation whatever upon Stephenson, and, so far as his obligations were concerned, it was competent to prove, by parol or other evidence, the nature, character, and extent of these obligations. 5 G. & J., 157, McCreary vs. McCreary. 4 Wash. C. C. Rep., 290, McColloch vs. Girard. 8 Richardson, 35, Knight vs. Knotts. 7 G. & J., 331, Dorsey vs. Eagle.

2nd. The granting of the first three prayers, and the instruction given by the court, gave to the defendant all the law to which he was entitled. The court's instruction, particularly, fully and fairly submitted to the jury all the questions proper for them to consider. The fourth prayer was obnoxious to the objection of separating a limited portion of the evidence, and submitting that to the jury as the basis on which to find fraud, and was calculated to mislead and embarrass the jury, and the qualification added tended to relieve the case from that embarrassment. 10 Md. Rep., 67, Wilson vs. Smith. 13 Md. Rep., 348, Chew vs. Beall. The fifth prayer was properly rejected because the judgment obtained against Stephenson, in the attachment suit,  [**14]  was a sufficient legal requirement upon him to pay, and it was unnecessary, and would have been improper, for him to wait for an execution, which would have only added costs. 1 G. & J., 497, Mayor & C. C. of Balto. vs. Hughes.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*220]  LE GRAND, C. J., delivered the opinion of this court.
This action was brought by the appellee against the appellant on a bond, given by the appellant, for the indemnification of the appellee, under the following circumstances: Stephenson (the plaintiff below) purchased land from Creamer (the defendant). A person, of the name of Tome, having obtained judgment against a person, named Adams, from whom Creamer had previously purchased this land, an attachment, on the judgment recovered by Tome against Adams, was issued and laid in the hands of Stephenson, and also on the lands. The design of the attachment was, to affect any interest which Adams might have in the lands, or the proceeds. Stephenson and Creamer being anxious to complete the purchase, it was agreed between them that Stephenson should pay the purchase money and take a title, upon Creamer giving a bond [**15]  to indemnify him against these attachments and certain other claims.
The bond of indemnity is dated the 3rd day of December 1853. After reciting certain facts and agreements, it proceeds to declare that Creamer is to "indemnify and save harmless the said Stephenson against all and singular the claims aforesaid, and against all costs and reasonable charges to which he may be subjected in resisting said claims, and shall refund to said Stephenson all such sums of money as he, the said Stephenson, may be legally required to pay on account of said claims, or upon other liens upon the land aforesaid, or the purchase money therefor, which may have originated since the date of the said Adam's purchase thereof, from," &c., &c.
The plaintiff, to sustain his case, gave in evidence the bond of the defendant, the judgment in the attachment suit and proof of the payment of the amount by Stephenson; and then offered in evidence a statement of H. W. Archer, Esq. To the admissibility of the following portion of it the defendant excepted, viz: "At the same time Creamer, (the time when the bond was delivered to Archer for Stephenson,) inquired what amount he might be held liable for upon such bond,  [**16]  in regard to the same attachment, and was told by me, that, if Tome obtained judgment, he would have to pay the amount 

 [*221]  that Stephenson might be compelled to pay, including his costs and expenses, as provided in the bond, but that if the attachment was defeated, he would only have to pay Stephenson's expenses, which would probably be nothing more than the fees which Stephenson might have to pay his attorney; Creamer objected to Stephenson's employing counsel at his expense, and I recollect distinctly that it was understood that Creamer would have the case defended by his own counsel, which appeared to me very proper, as he alone was interested in the result; and, as I was counsel for Tome, it would have been impossible for me to have appeared or acted, for either Stephenson or Creamer, in the attachment case."
The objection of the defendant was placed upon the ground, that, by the introduction of the testimony, "it was sought thereby to prove a parol understanding, wholly different and inconsistent with the legal purport of the bond offered in evidence, and that the bond itself must constitute the only evidence of what the contract was between the parties, and that [**17]  its legal effect could not be varied by any parol agreement or explanation which might be supposed to accompany and explain it." The plaintiff expressly disclaimed any such purpose in the offer, and declared that the evidence was offered to show that the plaintiff had acted in good faith in reference to the said attachment suit, and to rebut any presumption of fraud that might be contended for, as arising out of the judgment in the attachment suit having been obtained by default, and, generally, for any other purpose in the cause which "did not vary the purport of the bond." The court overruled the objection of the defendant, and allowed the evidence to go to the jury with the qualification, "that the same should not be allowed to qualify or vary the legal purport or effect of the bond."
There can be no doubt that is not admissible to vary or contradict a written agreement by parol; but no such effort was made in this case; so far from it, such was expressly prohibited by the court and disclaimed in the offer. And although the law interdicts such variance or contradiction, it admits of the introduction of parol evidence in the case of a latent 

 [*222]  ambiguity, [**18]  (McCullough vs. Girard, 4 Wash. C. C. 289,) or to prove any collateral, independent fact, about which the agreement is silent. The case of McCreary vs. McCreary, 5 Gill & Johnson 147, fully sustains the ruling of the Superior court on this exception. That was an action of debt to recover the amount of a single bill, and the plaintiff pleaded, by way of set-off, a claim for various articles sold and delivered, and upon the trial, proved a lease of land by him to the plaintiff, in which the plaintiff covenanted to pay the defendant a certain annual sum for life, and to pay all claims and demands existing against the defendant at the date of the lease. The defendant also proved an appraisement, made at the request of the parties, of various articles of personal property, (which the appraisers certified the plaintiff was to take as his property at the valuation,) that such articles were delivered to the plaintiff at the valuation, and that the lease, appraisement and delivery were made at the same time. The plaintiff then proposed to prove a verbal agreement between him and defendant, that the value of this property should be applied by the [**19]  plaintiff to the payment of the outstanding debts of the defendant. The county court rejected the evidence, but the Court of Appeals reversed the decision, and held, that as the appraisers' certificate did not show in what manner the property valued was to be paid for, parol evidence was admissible to ascertain the fact; adopting the rule as stated in Philips' evidence, that "though an ambiguity apparent on the face of a written instrument cannot be explained by extrinsic evidence, yet, where a question arises, as to the general intention of the parties, concerning which the instrument is not decisive, it has been held that proof of independent facts, collateral to the instrument, may be properly admitted." And in Dorsey vs. Eagle, 7 Gill & Johnson 321, it is said: "It is a well settled principle of law, that parol evidence may be given of collateral and independent facts, which tend to support a deed, provided it is not offered to vary the agreement, and is consistent with the deed."
Now the language of the contract in this case is wholly 

 [*223]  silent as to the manner or means to be employed "in resisting" the claims referred to. There is nothing [**20]  inconsistent with, or contradictory to this language, in the proof of the independent fact as to how and through whose agency the resistance was to be made. We think the court was not in error.
The second exception of the defendant is abandoned. The third exception relates to the prayers offered on behalf of the defendant. Of the five instructions asked, the first three were granted, the fourth and fifth, as presented, were rejected, but the fourth, with a qualification, was granted. The second exception having been abandoned, the only point of the fourth prayer is, that from the facts enunciated in it the jury might find, that the payment made by the plaintiff was not in good faith, but in collusion with Tome. The argument urged in support of this prayer rests on this idea: that the judgment ought not to have been paid until after execution, and that having been paid without execution, the defendant is in nowise responsible to refund the amount. To this reasoning we do not assent, nor does the law give it any support. It was the judgment which fixed the liability. Had Stephenson withheld payment until execution was levied, Creamer very reasonably might have complained of such [**21]  unnecessary accumulation of costs. If there was no other reason to ratify the rejection of the defendant's fifth prayer, the abandonment of his second exception in this court would be sufficient. The prayer, among other things, leaves it to the jury to find that Adams was not a creditor of either Stephenson or Creamer. The judgment in the attachment suit established the indebtedness of Stephenson, as garnishee, and precluded all further question in regard to the matter.
We do not perceive any valid objection to the instruction given by the court. It fairly submitted the bona fides of the conduct of the plaintiff to the jury, omitting no fact important to the inquiry.
Judgment affirmed. 

128 of 196 DOCUMENTS 

WESTERN MARYLAND RAIL ROAD COMPANY, and others, vs. HENRY H. OWINGS, and others.--WESTERN MARYLAND RAIL ROAD COMPANY vs. EPHRAIM BERRYMAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 199; 1860 Md. LEXIS 17 

March 13, 1860, Decided 

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

These appeals are taken from orders of the court below, (PRICE, J.,) granting injunctions upon bills filed, the one on the 16th of February 1858, and the other on the 24th of May 1859, by the appellees against the appellants. The allegations of the bills and the purport of the injunctions are sufficiently stated in the opinion of this court. From the orders granting the injunctions the defendants, having first filed their answers, appealed.  

DISPOSITION:
Order affirmed, with costs.  

HEADNOTES:

A court of equity has jurisdiction to prevent, by injunction, a railroad company from making its railroad over the land of a private citizen where the company has not paid or tendered compensation for the use of the land, as provided in Art. 3, sec. 46, of the Constitution of the State.

In such case, the allegation in the bill that the company is proceeding without any legal authority and license, and has not paid or tendered compensation for the use of the land, is sufficient to authorize the granting of an injunction, without reference to the question whether the damage complained of is irreparable or not.  

COUNSEL:
Coleman Yellott, for the appellants, after arguing that the allegations of the bills, in other respects, were not sufficient to warrant the granting of the injunctions, further insisted:

That the fact, that the alleged trespass was committed by a corporation, does not give the complainants any superior equity. Their right to the remedy of an injunction depends upon the character of the damage about to be sustained, and not whether it was to be inflicted by a corporation or an individual. A careful examination of the cases cited by the appellees will show that they do not sustain the position taken by their counsel. Full effect can [**2]  be given to the constitutional provision (Art. 3, sec. 46) that "the Legislature shall enact no law authorizing private property to be taken for public use without just compensation," without adopting the construction contended for by the appellees' counsel. If any chartered company enter upon the lands, without having paid or tendered "just compensation, as agreed upon between the parties or awarded by a jury," the company would be trespassers, but whether such trespass would be restrained by injunction would depend upon its nature, just as if it was about to be committed by an individual. This view seems to have been adopted by the court in 7 Md. Rep., 516, Steuart vs. The Mayor & City Council of Baltimore, where it is said: "The persons so entering would be responsible, in damages, to the owner of the property."

Of the cases referred to by the appellees, it will be found that in 1 Eng. Railway Cases, 158, the injunction was refused; that in 4 Johns. Ch. Rep., 53, 54, the corporation were about to destroy the stable, greenhouse, fence, and landmarks, of the complainants; that in 31 Eng. Law & Eq. Rep., 249, 258, the decision turned upon the construction of a certain Act of Parliament,  [**3]  and the injunction was refused; and that the case in 2 Dow., 521, was one from Scotland, and turned upon the construction of certain Acts of Parliament, and was an action for damages.

The bills in the present cases merely aver that no compensation has been paid or tendered by the defendant, the Western Maryland Railroad company. They do not aver that a jury had, or had not, been summoned to assess the damages. It may have been that a jury had met according to law, and had decided that the complainants were entitled to no damages. Such a supposition is neither an improbable one, nor at all inconsistent with the averments made in the bills. It frequently happens that the owner of land is entitled to no compensation, for the reason, that his property is benefitted and increased in value by the laying of a railroad track through it.

It is also to be observed, that, after the filing of the bill in Berryman's case, but before the filing of that in Owing's case, the Act of 1858, ch. 420, was passed, and by the 4th section of that Act, the Western Maryland Railroad company were authorized to enter upon and use the lands necessary for their purposes, even before paying or tendering [**4]  payment of damages, provided they gave bond of indemnity to meet such damages as might be afterwards recovered. Such was the existing law at the time the bill in Owing's case was filed. According to this law, every averment of the bill, in that case, may be assumed to be true (in regard to non-payment, or tender of consideration) and yet the company may not have been trespassers; the bill not averring that no bond of indemnity had been given. It may be said, in reply, that this Act is void, because in violation of the provisions of our Constitution. My answer is, that the court below could not decide upon the constitutionality of an Act of Assembly, upon an ex-parte decision upon an application for an order for an injunction. In deciding upon such application, the court must assume that the Act is constitutional, and the same rule will govern the appellate court, in deciding the appeal from such an order. 1 Am. Railway cases, 156, 162, Dessing vs. York & Cumberland Railway company.

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

That a railroad company, in violation of the Constitution and of its charter, is taking actual possession of the land of a private person, and [**5]  constructing their road upon it, without his consent, or the payment, or tender, of compensation, legally ascertained, constitutes a proper case for the interference of equity by injunction. 1 Md. Ch. Dec., 248, Harness vs. Ches. & Ohio Canal Co. 7 Md. Rep., 500, Steuart vs. Mayor & C. C. of Balto. 1 Bald., 231, Bonaparte vs. Camden & Amboy R. R. Co. 7 Smedes & Marshall, 568, Stewart vs. Raymond R. R. Co. 2 Dow, P. C., 521, Shand vs. Henderson. 4 Johns. Ch. Rep., 53, Varick vs. Corporation of New York. 2 Story's Eq., sec. 927. 1 Eng. Railway Cases, 154, Dunn Nav. Co. vs. North Midland Railway Co. 31 Eng. Law & Eq. Rep., 252, Pinchin vs. London & Blackwall Railway Co.

The whole argument on behalf of the appellants depends upon the proposition, that in cases, such as are set out in these bills, as in an ordinary case of trespass, some special and irreparable mischief must be shown to justify the interference of equity. But this is supported by no authority, whilst, on the other hand, there is abundant authority to support the position of the appellees. Chancellor Kent, after asserting the constitutional right of the owner to receive compensation before his land is taken, says: "The [**6]  government is bound, in such cases, to provide some tribunal for the assessment of the compensation or indemnity before which each party may meet and discuss their claims on equal terms; and if the government proceed, without taking these steps, their officers and agents may and ought to be restrained by injunction." 2 Kent, 339, note, and Henderson vs. Mayor, &c., of New Orleans, 5 Louisiana Rep., 416, cited by him, is directly in point here. He also rests his own decision in 2 Johns. Ch. Rep., 162, Gardner vs. Village of Newburgh, on this general principle. And see also the opinion of Sharkey, C. J., in Thompson vs. Grand Gulf R. R. Co., 3 How., (Miss.,) 249. We confidently rely, also, upon the authorities above cited to this point. Indeed, the point seems too clear for argument. As was said by the court of Errors and Appeals of Mississippi in Stewart vs. Raymond R. R. Co., 7 Smedes & Marshall, 575, "If the company has no right to the easement before the payment of the damages, the proposition that Stewart has a right to restrain the passage of the cars until such compensation, would seem to follow as an inevitable consequence." In that case two bills were filed, one by the company,  [**7]  the other for an injunction by Stewart, the land owner; the latter was sustained. Mohawk & Hudson R. R. Co. vs. Artcher, 6 Paige, 83, 88, and Bird vs. Wilmington & Manchester R. R. Co., 4 Amer. Law Register, 222, in the Court of Appeals of South Carolina, are additional and strong authorities for the complainants.

There is nothing, it is submitted, in the criticism, that there is no direct allegation in these bills, that no inquisitions had been taken. If inquisitions had been had, it was for the railroad company to set them up. It is a concessum that no inquisitions exist. But the fact of inquisitions would be no defence; there must be compliance with their terms. The bills set out the entire grievances forbidden, as well by the Constitution as the act of incorporation; they allege that the complainants' private property is being taken for public use and the purposes of the company, without just compensation having been first paid or tendered. They further allege that these acts are wrongful and without the complainants' consent, or any lawful authority whatsoever. This necessarily negatives every thing which could justify the company under the Constitution and their charter,  [**8]  in any conceivable circumstances. The considerations last advanced are an answer to the point made by the appellants in Owing's case, upon the Act of 1858, ch. 420. It is distinctly alleged and shown that the company are proceeding in contravention of their charter, as well as of the Constitution, so that there is no room for the application of the case in Maine, reported in 1 Amer. Railway Cases, 152. But it is clear that that case is not law. The authority of Chancellor Kent is directly against it. 2 Kent, 339, 340, and notes. And in Maryland the doctrine has been constantly conceded and acted upon, that a corporation proceeding to take property, under an unconstitutional law, may be enjoined. See Steuart vs. Mayor & C. C. of Balto., 7 Md. Rep., 500, 511. Alexander vs. Mayor & C. C. of Balto., 5 Gill, 383. Harness vs. Ches. & Ohio Canal Co., 1 Md. Ch. Dec., 248.  

JUDGES:
The causes were argued before LE GRAND, C. J., ECCLESTON, TUCK and BARTOL, J.  

OPINIONBY:
TUCK 

OPINION:

 [*203]  TUCK, J., delivered the opinion of this court:
An injunction was granted by the Circuit court of Baltimore county, sitting in equity, restraining the appellants from making a railroad over the lands of the appellees.  [**9]  
The bill states certain acts done and threatened, which, it is charged, will cause irreparable damage; that the defendants were proceeding without any legal authority or license; and that the company had not paid or tendered compensation for the use of the land.

 [*204]  We do not perceive how the court could have refused the injunction in the face of this latter averment in the bill. The clause of the Constitution applicable to the point (Art. 3, sec. 46) is too plain to admit of any doubt. The nature of the damage complained of, whether irreparable or not, has nothing to do with the question, when thus presented. If the acts are productive of such effects as would otherwise entitle a party to relief, he cannot prevent them, if the company is authorized by the charter to condemn the property, and, for the same reason, the license of the owner is not necessary. Supposing that the Act of incorporation does give this power--but, as the charter is not before us, we cannot speak judicially--the company had no right to proceed without complying with the requirement of the Constitution, unless there was something to relieve it from the obligation thereby imposed. It is claimed in argument [**10]  that the Act of 1858, ch. 420, had such effect, which is denied by the appellees, but it is not before us, and we decline pronouncing upon its validity as a constitutional exercise of legislative power. Scaggs vs. Balto. & Wash. R. R. Co., 10 Md. 268.
We have no doubt of the jurisdiction of a court of equity in such cases as this. It has been frequently exercised, as shown by the authorities cited in argument, and there are many others to the effect, that corporations may be restrained from an abuse of their powers. The principle on which the court acts was stated by Lord Chancellor Cranworth, in Pinchin vs. London & Blackwall Railway Co., 31 Eng. Law & Eq. Rep. 252, to be: "That it will not suffer powerful corporate bodies, with whom it is very difficult to deal, to take, under their Acts of Parliament, proceedings which are of an illegal character, or which are of doubtful legality, if, by so doing, they place those against whom they are proceeding, in a condition of peril, from which it might be difficult for them to extricate themselves;" which course, he says, had been repeatedly adopted by Lord Cottenham and other judges. Adams Eq., 486, 2 Story's Eq., sec. 927, Bonaparte vs. Camden & Amboy R. R. Co., 1 Bald. 231, [**11]  are also authorities in point.
Order affirmed, with costs.

 [*205]  In the case of The Western Maryland Railroad Company vs. Berryman, the facts are substantially the same as those stated in Owings' case, and, for the same reasons, the order must be affirmed, with costs.
Order affirmed, with costs. 

129 of 196 DOCUMENTS 

GEO. P. KANE vs. THE MAYOR & CITY COUNCIL OF BALTIMORE, and JAMES S. SUTER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 240; 1860 Md. LEXIS 23 

March 5, 1860, Decided 

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

By the Act of 1853, ch. 376, entitled "An Act for supplying the City of Baltimore with pure water," the Mayor and City Council of Baltimore were authorized to contract, and agree with the owners, to purchase and "hold in feesimple, or for a term of years, any land, real estate, spring, brook, water and water-course, which they may conceive expedient and necessary for the purpose of conveying water into the said city, for the use of the said city, and for the health and convenience of the inhabitants thereof," and in case they cannot agree with the owners, or of incapacity to contract, then the said Mayor and City Council are to have authority to summon a jury in the usual way to ascertain the damages to be paid by them "for the land, spring, brook, water-rights, or other property they may deem necessary to purchase and hold for the purpose," and that the inquisition of the jury shall be returned to the Circuit court of the county and confirmed at its next session, if no sufficient cause to the contrary be shown, and shall "describe the property taken, or the bounds of the land condemned, and the quantity or duration [**2]  of the interest in the same, valued to the Mayor and City Council of Baltimore, and such valuation when paid or tendered to the owner or owners of said property, or his, her, or their legal representatives, shall entitle the said Mayor and City Council of Baltimore to the use, estate and interest in the same, thus valued, as fully as if it had been conveyed by the owner or owners of the same."

Samuel D. Tonge was the owner of a tract of land through which flowed a stream called "Jones' Falls," and on which land and stream was a valuable merchant flourmill, known as "Rockdale Mill." The city authorities, under the above Act, caused a part of this land, constituting the bed of the stream, to be condemned. The inquisition after describing the land (and among the calls and bounds of the description, the "high water line of Jones' Falls," is several times mentioned,) states that "said piece or parcel of land, with all water rights whatsoever thereto attached, together with the lease-hold and fee-simple estate therein, is required by the said Mayor and City Council of Baltimore, for the conveying water into said city," and then assesses $ 32,000 damages to Tonge for "the taking, use [**3]  and occupation aforesaid." This inquisition was confirmed on the 2nd of March 1857, by the Circuit court for Baltimore county. After this confirmation, the city authorities, having received notice from parties interested in the land and damages, and being warned not to pay the same to Tonge, filed their bill of interpleader asking that the parties interested might litigate their rights to the same, and in the meantime that the money might be paid into court. Pending this litigation, Tonge applied for the benefit of the insolvent laws, and his permanent trustee applied to the court for the money, and the proceedings on this bill of interpleader resulted in a decree passed on the 24th of February 1858, awarding to the city of Baltimore the entire fee-simple estate in the land condemned by the inquisition, and directing the money to be paid to the trustee in insolvency, to be by him distributed in that character to whomsoever might be entitled to the same.

The trustee of Tonge, then, under an order of the Circuit court for Baltimore county, sitting in insolvency, sold at public auction, on the 12th of May 1858, all the tract of land mill and improvements so owned by Tonge, subject [**4]  to such rights as the city authorities had acquired by the condemnation aforesaid, and at this sale Geo. P. Kane, the appellant, became the purchaser thereof, for $ 8500, and was put in possession of the property, and on the 20th of November 1858, filed his bill against the appellees praying for an injunction to restrain them from injuring and destroying the dam to his mill, and from interfering with him in such use of the water of Jones' Falls for the running of his mill "as does not interfere with the use of the same by Mayor and City Council of Baltimore for supplying the said city with pure water." The injunction was granted as prayed, and after answer filed, a motion to dissolve was entered and testimony taken. The allegations of the bill and answer, and the purport of the testimony, are sufficiently stated in the opinion of this court. At the hearing of this motion, the court below (LEE, J.) passed an order dissolving the injunction, from which the complainant appealed.  

DISPOSITION:
Order reversed with costs, and injunction continued.  

HEADNOTES:

Under Art. 3, sec. 46, of the Constitution, the Legislature cannot take, or confer on any municipal or other corporation the power to take, private property for any other than a public use.

The Act of 1853, ch. 376, authorises the city of Baltimore to purchase, or acquire title to property by condemnation, not for all purposes, but for "the purpose of conveying water into said city, for the use of the said city, and for the health and convenience of the inhabitants thereof."

Under this Act the city may acquire, by condemnation of the bed of a stream, or water-course, a right to the use of the water in perpetuity, but the use must be the one specified in the Act.

Such a condemnation confers on the city the use and occupation of the stream for the purposes mentioned in the Act, but leaves in the owner all such use of it as does not injuriously interfere therewith.

The owner has the right to use the water in the manner it has been customary to use it at his mill built on the stream so condemned, so far as that use may not interfere with the use of the same by the city authorities for supplying the city with pure water. 

COUNSEL:
Geo. W. Dobbin, for the appellant argued:

1st. That the condemnation by the city, under the Act of 1853, ch. 376, is limited to such use and occupation [**5]  of Jones' Falls as may be necessary to supply the city with pure water. Redfield on Railways, 114, 115, 116. 11 Barb., 26, The People vs. White. 11 Wend., 151, Albany Street Case. 5 Paige, 147, Varick vs. Smith. 4 Hill, 143, Taylor vs. Porter. 2 Sandf., 98, Embury vs. Conner. Harp. Law Rep., 189, Dunn vs. City Council of Charleston.

2nd. That the proof in the cause shows conclusively, that there was and is no necessity, whatever, for any purpose of supplying the city with pure water, to destroy the Rockdale mill dam, by means whereof the mill was operated at the time of and before the condemnation.

3rd. That the condemnation by the city, whilst it took from Tonge all the use and occupation of the stream, which is necessary for supplying pure water to the city, left in him all such use of it as did not injuriously interfere therewith, and that the appellant acquired by his purchase from the trustee in insolvency of Tonge, all the title to such use which Tonge had. 1 Sumner, 501, United States vs. Appleton. 12 Mass., 160, Story vs. Odin. Angell on Water Courses, sec., 159. 1 Md. Rep., 540, White vs. Flannigain. 7 Md. Rep., 352, McTavish vs. Carroll. 2 Md. Rep., 417, Ely vs.  [**6]  Stewart, et al. 5 H. & J., 82, Kilgour vs. Ashcom.

4th. That equity has jurisdiction to restrain, in this case, by the writ of injunction. 1 Md. Rep., 543, White vs. Flannigain. 7 Md. Rep., 413, Shipley vs. Ritter. 2 Md. Ch. Dec., 412, Lamborn vs. Covington Co.

5th. That the inquisition found, is so vague and uncertain, in the description of the land intended to be condemned for the use and occupation of the city, that the land cannot, with requisite certainty, be located by the terms of that description, and that the inquisition and condemnation founded thereon, are therefore void. 6 Gill, 154, Wilson vs. Inloes. 1 H. & G., 438, Thomas vs, Turvey. 10 G. & J., 10, Neel vs. Hughes. 2 Gill, 29, Balto. & Susq. Rail Road Co. vs. Compton.

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

1st. That according to the true construction of the Act of 1853, ch. 376, the Mayor and City Council of Baltimore are authorized, to acquire, by agreement or process of condemnation, any property which they may conceive expedient and necessary to promote the purpose mentioned in the Act, and to hold the same in fee-simple, for a term of years, or merely as an easement, as to [**7]  them may seem best; and in case of a condemnation, the confirmation of the inquisition, and the payment, or tender, of the valuation thereby assessed to the owner of the property taken, entitle the corporation to the use, estate and interest in the same, as fully as if it had been conveyed by the owner.

2nd. Supposing the above construction to be correct, the Legislature, in passing the Act, did not exceed the limits of their legitimate powers. 1st. The only restriction imposed by the Constitution, (Art. 3, sec. 46,) upon the exercise of the right of eminent domain, is that a just compensation must be paid or tendered, in the first instance, to the owner of the property taken. The express mention of this limitation, excludes the supposition of the existence of any other. 2nd. In a State where there is a written constitution, the judiciary cannot invalidate an Act of the Legislature independently of any considerations drawn from the organic law, on the vague ground that it violates the dictates of natural justice, or is contrary to the fundamental principles of republican government, and the teachings of political ethics. 21 Penn. State Rep., 147, Sharpless vs. Mayor & C. C. of [**8]  Philadelphia. 3rd. The Legislature is the sole judge of the exigency which justifies the taking of private property for a public use, of the amount to be taken, and the quantity of estate to be had therein, and a fee-simple may be acquired by condemnation. 10 Law Reporter, 441, 581, 490. 3 Paige, 45, Beekman vs. Saratoga Rail Road Co. 7 Greenlf., 273, Spring vs. Russell. 9 Barb., 350, Harris vs. Thompson. 19 Barb., 168, Hartwell, et al., vs. Armstrong, et al. 15 Barb., 627, Rexford vs. Knight, and same case affirmed on appeal in 1 Kernan, 308. 3 Selden, 314, Heyward vs. Mayor & C. C. of New York. 24 Barb., 658, Morris Canal Co., vs. Townshend. 9 Smedes & Marshall, 430, Arthur vs. Commercial Bank of Vicksburg. 9 G. & J., 509, Tide Water Canal Co., vs. Archer. The question of the degree of necessity is always for the Legislature to decide. 5 G. & J., 429, Glenn vs. Mayor & C. C. of Balto. 4 Wheat., 423, McCulloch vs. The State of Maryland. 4th. Courts are very reluctant to set aside an Act of the Legislature; every presumption will be made in its favor, and in a doubtful case it will be declared valid. 6 Florida Rep., 610, Cotton, et al., vs. Commissioners of Leon County. 21 Penn. State [**9]  Rep., 164. 9 Gill, 304, Baugher et al., vs. Nelson.

3rd. But the question as to whether or not the estate taken was necessary to accomplish the purpose contemplated by the act, is not now an open one. It has been conclusively settled, 1st, by the confirmation of the inquisition of the jury by the Circuit court for Baltimore county. 1 Md. Rep., 567, Hamilton vs. Annapolis & Elk Ridge Rail Road Co.; 2nd, by the decree of the Circuit court for Baltimore city, adjudging the fee-simple in the property condemned to the Mayor and City Council; 3rd, Tonge, or his trustee in insolvency, having received the condemnation money, he, and all persons claiming under him, are estopped from saying the city acquired a larger estate than was necessary for the purpose intended. 6 Hill, 47, Baker vs. Braman. 3 Comstock, 511, Embury vs. Conner.

4th. That the powers and discretion conferred and vested by this Act, have not been transcended or abused by the city authorities. 1st. The Act itself must not be too strictly construed; the rules of construction, applicable to English railway companies, have not been domesticated by the courts of this State. 2nd. Where the power of determining upon the [**10]  necessity of a measure or thing, is given to a municipal corporation, the courts will not interfere with its judgment in a particular instance, at least, unless it can be clearly shown that the corporation has exceeded the limits of its authority, or grossly abused the discretion vested in it. 1 Gill, 264, Harrison vs. Mayor & C. C. of Balto. 5 G. & J., 429, Glenn vs. Mayor & C. C. of Balto. 3rd. Necessary does not mean physically impossible--like most words, it admits of all degrees of comparison, and is qualified by other words, in connection with which it may be used. It is frequently employed as synonymous with "expedient," "conducive to," "promotive of," &c. Wherever the means resorted to have a tendency to produce a certain end, in the propriety of the English tongue it may be said, that those means are necessary to accomplish that end. 4 Wheat., 316, McCulloch vs. State of Maryland. 1 Kent, 253. 6 Florida Rep., 629. 4th. The evidence shows that absolute control on the part of the city, over the water contained in the Rockdale mill dam is necessary for properly carrying out the purpose had in view.

5th. Admitting that the use of the water by the appellant, does not in the [**11]  least obstruct or affect the city's supply, it does not follow that he would be entitled to such use. If there is any surplus water, the corporation may rent it out; at any rate, a third person cannot claim to use it without the city's permission. 9 Barb., 350, Harris vs. Thompson. 5 Paige, 146, Varick vs. Smith. 1 Md. Rep., 553, Hamilton vs. Annapolis & Elk Ridge Rail Road Co.

6th. That the description in the inquisition of the land condemned is sufficiently certain.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*247]  LE GRAND, C. J., delivered the opinion of this court.
This is an appeal from an order of the judge of the Superior court of Baltimore city. The case made by the bill may be thus stated. A person of the name of Samuel D. Tonge had a leasehold interest in a piece of land in Baltimore county, through which flows a stream called "Jones' Falls." On this land and the stream a valuable merchant flour mill stood. Under the Act of 1853, chapter 376, entitled, "An Act to supply the City of Baltimore with pure water," the city caused that part of the land constituting the bed of the stream to be condemned, and the [**12]  amount of the condemnation money was paid to those to whom it was decided to belong. Tonge having taken the benefit of the insolvent laws, his trustee exposed for sale the interest which still remained to his estate after the condemnation, and the appellant became the purchaser thereof for the sum of $ 8500. The bill alleges that immediately after the purchase he was put in possession of the property, and up to the period of the commission of the acts complained of, he was in the undisturbed and peaceable enjoyment of the same, using it for the manufacture of flour, for the grinding and delivery of which he is under heavy contracts. It is also alleged that James S. Suter, water-engineer to the Mayor and City Council of Baltimore, claiming to act under and by virtue of the aforesaid Act of Assembly, and the ordinance of said corporation for supplying the city with pure water, entered upon the dam belonging to the mill, then in the possession and use of the complainant, and forcibly and violently, and against his will and consent, opened and destroyed the sluicegate in the dam, and thereby let off and discharged the water from the mill-dam, so that the mill can no longer be used, as [**13]  before, for the manufacture of flour; and further, that since the sluice was opened and destroyed, the engineer has commenced and is now prosecuting the actual destruction of the whole of the dam, cutting away the wood-work and blowing up the abutments, so that when its destruction shall be completed it will be incapable of being rebuilt, as before, the present abutments being natural rocks of immense size, which 

 [*248]  cannot be equally well replaced by any artificial structure. The bill states that a suit has been instituted against the defendants, in which will be tried and adjudicated the rights of the respective parties. It avers, that the only use which the complainant makes of the water is, to cause it to pass over his water-wheel instead of passing over the breast of the dam, and that such use is made without the smallest impairment of its quantity, or pollution of its quality, and in proof that such use of the water of Jones' Falls is not injurious to the rights of the Mayor and City Council, the complainant avers, that the same use is made of said water by all the mills on the said stream, both above and below his mill, with the knowledge and consent of the [**14]  Mayor and City Council, their engineer and agents, and no objection has been made, except in his case. The bill states the insolvency of Suter, and suggests, that it may be probable, that as the Mayor and City Council of Baltimore is a corporation confined, in the exercise of its corporate powers, within specified limits, it may not be liable for acts done outside of those limits. To this is added, that as the trespass is continuing in its nature and goes to the destruction of the dam as such, the defendants ought to be restrained from further acts of trespass until the suit at law shall have been determined, and be compelled to refrain from interfering with such use by the complainant of the water of Jones' Falls, for running his mill, as does not interfere with the use of the same by the Mayor and City Council of Baltimore, for the supplying of the city with pure water. An injunction was accordingly ordered. The answers of the defendants exhibit no facts in response contradictory to those alleged in the bill, but claim the legal right to do what has been done, and what is contemplated to to be done, by virtue of the Act of Assembly, the ordinance of the city of Baltimore, and [**15]  the condemnation. Considerable proof was taken as to the boundaries of the land condemned, and the various water powers and their present uses on Jones' Falls. There is not sufficient evidence in the record, going to show, that the use by the complainant of the water interferes in any manner with the introduction of pure 

 [*249]  water into the city. The new water works are not now completed, and, according to the present plan of their construction, the water to be conveyed into the city is to be withdrawn from the stream at a point considerably higher up than the location of the complainant's mill.
The claim of the city depends upon the construction of the 46th section of the 3rd Article of the Constitution of the State, the Act of Assembly of 1853, chapter 376, and the condemnation under the inquisition. On the part of the city, it is contended, that the condemnation of the land was in absolute fee-simple, and that on ratification of the finding of the jury and payment of the money, the city is entitled to use it, and the water flowing over it, in such manner and for such purposes as to it may seem proper and judicious. To this extent the pretension must go, and be sustained,  [**16]  or it cannot avail in this case, as it is presented to us.
The clause in the Constitution is in these words:
"The Legislature shall enact no law authorising private property to be taken for public use without just compensation as agreed upon between the parties, or awarded by a jury, being first paid, or tendered, to the party entitled to such compensation."
The Act of 1853, chapter 376, authorises the city, by purchase, or, in case of inability to purchase with consent of the owner, to acquire title by condemnation of a jury, and the tender of, or payment of the valuation; but this authority is not given to the city for all purposes, but for "the purpose of conveying water into the said city, for the use of said city, and for the health and convenience of the inhabitants thereof." Under this privilege the city can acquire a right to the use of the water in perpetuity, but the use to which it is to be applied must be the one specified. In our opinion it is not competent for the Legislature to confer on the city of Baltimore, or other corporation, the power to take private property for any use but a public one; and the particular public use, in [**17]  this case, is described fully in the Act of Assembly, and is observed in the finding of the jury, "the conveying water into said city."

 [*250]  The Legislature could not confer on the city a larger power than it possessed. The right of eminent domain, which under the Act of 1853, was, in part, conferred upon the city, cannot be more extensive than as it existed before the grant. The State has not, and therefore cannot confer, a power to take private property for any but a public use. In our opinion it has not done so in the present instance.
We think the complainant has the right to use the water in the manner it has been customary to use it at his mill, so far as that use may not interfere with the use of the same by the Mayor and City Council for supplying the city with pure water.
In the argument of this cause, some stress has been laid upon the decree passed by the Circuit court, which appears in the record. That decree was passed in the interpleader suit instituted by the Mayor and City Council, for the purpose of determining the respective rights of the parties in interest, to the money awarded by the inquisition. The decree in its terms declares that the Mayor [**18]  and City Council of Baltimore "is entitled to a fee-simple estate in the property in the condemnation mentioned."
In our opinion, the decree did not alter or enlarge the rights of the city, acquired under the condemnation. That conferred upon the city, in perpetuity, the use and occupation of the stream, for the purpose mentioned in the Act, but left in Tonge "all such use of it as did not injuriously interfere therewith." This latter right, so far as it is consistent with the full and complete accomplishment of the purpose mentioned, could not be embraced within the condemnation. From these views, it will be apparent, that we are of opinion, the order dissolving the injunction was erroneous and ought to be reversed, and an order passed continuing the injunction.
These views are fully sustained by the following cases: Albany Street Case, 11 Wendell 149; Dunn vs. City of Charleston, Harper's Law Rep., 189; The People vs. White, 11 Barbour, S. C. Rep. 26, and Varick vs. Smith, 5 Paige 137, 146, 147.

 [*251]  Believing the principles adopted in these cases to be appropriately applicable to the one before us, we do not deem [**19]  it important to inquire how far it may be true, as has been supposed, that there are cases in New York in conflict with those to which we have referred.
Order reversed with costs, and injunction continued. 

DISSENTBY:
TUCK 

DISSENT:

TUCK, J., delivered the following dissenting opinion:
I propose, very briefly, to state wherein I dissent from the opinion of the court in this case.
Under the Constitution and laws, the Mayor and City Council of Baltimore have power to condemn, in fee-simple, land or water, if there is a necessity for so doing, in order to carry out the purposes of the Act of 1853. This was admitted by the appellant's counsel. That Act makes the city authorities judges of the expediency and necessity in the particular instance in which they may seek to assert their rights, and when they have made a condemnation, and it has been ratified by the proper court, the correctness of their judgment on that question cannot be reviewed by us. I deem it unnecessary to refer to the cases on the point, further than to say that, I think it fully sustained by some of those cited in argument.  

130 of 196 DOCUMENTS 

BALTIMORE and HAVRE-DE-GRACE TURNPIKE COMPANY vs. THE NORTHERN CENTRAL RAILWAY COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 193; 1860 Md. LEXIS 16 

February 28, 1860, Decided 

PRIOR HISTORY:
 [**1]  Error to the Superior Court of Baltimore city.

It appears from the record in this case that by the Act of 1853, ch. 191, the appellee was authorised to make a lateral road from its main stem to tide water, and for that purpose to exercise all the powers given in its original charter, (Act of 1827, ch. 72,) and its supplements. In the exercise of these powers, the appellee finding it necessary, to cross the Turnpike of the appellant, had a warrant issued, under the provisions of the 15th section of the Act of 1827, ch. 72, for the condemnation of part of the appellant's turnpike in perpetuity, over which to construct such lateral road, and by virtue of this warrant, the sheriff summoned a jury for such condemnation. Thereupon, and before the warrant was fully executed, the appellant, a company duly incorporated by the Act of 1813, ch. 167, filed its petition in the court below for a certiorari to the sheriff, ordering him forthwith to return and certify this warrant and all his proceedings thereunder, to that court, to be read, adjudged and determined as to law and justice shall appertain. The writ was issued, and the sheriff having returned the same, and with it the warrant of [**2]  condemnation, and what he had done thereunder, the appellee moved to quash the writ. This motion the court (LEE, J.) granted and remanded the warrant and proceedings to the sheriff to proceed thereunder, according to law. Thereupon, the appellant sued out the present writ of error to review this order of cassetur.  

DISPOSITION:
Order affirmed with costs.  

HEADNOTES:

A railroad company was proceeding, under its charter, to condemn part of a turnpike which the railroad was to cross; pending the proceedings, they were brought before the Superior court by a writ of certiorari, issued at the instance of the turnpike company, and the writ, having been returned, was quashed. The charter of the railroad company provides for the confirmation of the inquisitions by the county courts, if no cause be shown to the contrary, and no appeal from the judgment of confirmation is provided for. Upon appeal from the order quashing the certiorari, HELD:

That the writ was properly quashed by the Superior court, for want of jurisdiction over the subject-matter at that stage of the proceedings; the want of power in the railroad company to condemn the property, (if they had no such power,) could have been shown as cause against the confirmation of the inquisition.

Whether an appeal lies in cases of certiorari, may depend on the nature of the proceedings, and the object for which that remedy may have been invoked.

Where the court, on return of the writ of certiorari, is called upon to exercise a quasi appellate power in examining the proceedings of an inferior jurisdiction which has authority to act in the premises, the judgment is final and no appeal lies to this court.

But where the writ is sued out to test the power and jurisdiction of the inferior authority to act at all in the matter, the court to which the writ is returned acts in its ordinary common law capacity, and an appeal will lie.

Where the circuit court is clothed with a special jurisdiction, and no appeal to this court is provided for, the judgment is final, whether pronounced in the exercise of original jurisdiction, or in the nature of an appeal from some inferior authority.  

COUNSEL:
Geo. H. Williams and John Nelson, for the appellant:

The appellee, neither by its charter, nor any supplement, had any power given to it to condemn a franchise, and the jurisdiction, therefore, of the justice to issue the warrant, and of the sheriff to proceed under it, was usurped, and certiorari was the true remedy for the appellant. It is a proper remedy in any case in which an inferior authority is exceeding or usurping jurisdiction. The court in issuing it in such a case, is acting in its ordinary common law capacity, and an appeal from its action on the writ, lies in all such cases. The case of Crockett vs. Parke, 7 Gill, 238, was a case of a tenant holding over, and in which, under the Acts of Assembly in relation to that subject, an appeal lay to the county court, and its judgment on such appeal was final. But here the foundation [**3]  of the writ is, that the inferior authority attempted to usurp jurisdiction--to do that which it had no authority to do--and is precisely similar to the case of Swann vs. Mayor & City Council of Cumberland, 8 Gill, 150, where it was held, that an appeal to this court would lie from the action of the court below on the certiorari. The motion to quash or dismiss this writ of error, cannot therefore prevail.

J. Mason Campbell for the appellee:

This was no case for a certiorari, and the court below was right in quashing it. The Act of 1827, ch. 72, sec. 15, (the charter of the appellee,) directs that an inquisition taken on a condemnation warrant shall be returned to the county court, where it shall be confirmed, if no cause is shown to the contrary. Full jurisdiction, therefore, is given to the county court to examine every posssible question, from the one that lies at the threshold of the proceeding--the power to issue the warrant--down to its close, and whether the same affect substance or form. There was no necessity, therefore, for a certiorari to accomplish what was provided for by means of the summary proceedings authorized by the court whose function it was to receive,  [**4]  examine, and, if right, approve and record the inquisition. The case of Swann vs. The Mayor & City Council of Cumberland, 8 Gill, 150, allowed a certiorari in the case of an excess of power in some proceedings of the corporate authorities of Cumberland, but, as will be seen by reference to the Act of 1815, ch. 136, under which the proceedings took place, there was no special jurisdiction vested anywhere to review those proceedings. The common law remedy, therefore, was the only one to which resort could be had. In this case, however, there is provision made for the review of the proceedings under the warrant. The county court in so doing is acting under a special authority and is clothed with a special jurisdiction, and no appeal is provided to this court from their judgment therein. The appellant could not have taken an appeal from the judgment of confirmation, nor could we have appealed from a refusal to confirm, (8 G. & J., 443, Condon's case,) and yet they seek to try under this writ of error, the very questions which would have been finally decided by the circuit court upon the confirmation or rejection of the inquisition. The case is evidently similar to that of Crockett vs.  [**5]  Parke, 7 Gill, 237, and the writ of error must be dismissed, or quashed, or, at least, there was no error in the action of the court below in quashing the certiorari.  

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

OPINIONBY:
TUCK 

OPINION:

 [*197]  TUCK, J., delivered the opinion of this court.
Whether an appeal lies in cases of certiorari may depend on the nature of the proceedings, and the object for which that remedy may have been invoked.
Where, as in the case of Crockett vs. Parke, 7 Gill 237, the court on the return of the writ is called upon to exercise a quasi appellate power in examining the proceedings of an inferior jurisdiction, which has authority to act in the premises, the judgment is final, and no appeal lies to this court. But where, as in Swann vs. Mayor & C. C. of Cumberland, 8 Gill 150, the writ is sued out to test the power and jurisdiction of the inferior authority to act at all in the matter, the court to which the process is returned acts in its ordinary common law capacity. The proceeding is not limited or special, in the sense in which these terms are generally employed, nor appellate,  [**6]  but according to the course of the common law, and an appeal will lie. This we take to be the distinction between these cases, and if they cannot be so reconciled, the latter must be regarded as overruling the former. Crockett vs. Parke originated in a proceeding for a forcible entry and detainer in which justices of the peace are clothed with jurisdiction to be exercised in the manner prescribed by law. In the other case the corporate authorities of Cumberland sought to levy taxes for improvements under an ordinance which they had no power to pass, and which, therefore, conferred no authority on the commissioners to improve the street in the manner attempted by them. In the first case the appeal was dismissed; in the other it was entertained, the judgment below reversed, and the proceedings of the authorities of Cumberland quashed. This case, therefore, would be an authority for our considering the questions presented by the record, were it not for a well settled doctrine of this court, that where the circuit court is 

 [*198]  clothed with a special jurisdiction, and no appeal to this court is provided for, the judgment is final, whether pronounced in the exercise of original [**7]  jurisdiction, or in the nature of an appeal from some inferior authority. Condon's case, 8 Gill & Johns. 443. Carter vs. Dennison, 7 Gill 157. 8 Md. Rep., 5, Lammott vs. Maulsby.
The charter of the appellee (1827, ch. 72, sec. 15) provides for the confirmation of inquisitions by the county courts, if no sufficient cause be shown to the contrary. The words employed, as we think, embrace the questions suggested and argued in this cause, including, as well, the right of the appellee to condemn the franchise of the appellant, for no better cause could be assigned against the confirmation than want of power to condemn the particular property proposed to be taken. We could not revise a judgment confirming the inquisition without interfering with the exclusive jurisdiction of that court. The Act of 1815, ch. 136, under which the authorities of Cumberland claimed the power they sought to exercise, does not require a confirmation by any court; the appellant, Swann, therefore, was entitled to test the power by the process of certiorari, as a common law remedy. The principle here stated was recognized in the case of Hamilton vs. Annapolis & Elk Ridge Rail Road Co., 1 Md. 553. [**8]  One of the positions there taken against the company was, that it had no authority, under the charter, to hold a second inquisition for the condemnation of land for the uses of the railroad, but the court held that the county court was the proper place to have resisted the inquisition; a tribunal having exclusive and final jurisdiction over that matter, and from whose decision there was no appeal. We are of opinion, therefore, that the Superior court properly quashed the certiorari for the want of jurisdiction over the subject-matter at that stage of the proceedings.
Order affirmed with costs. 

131 of 196 DOCUMENTS 

CHARLES FARQUHARSON vs. OTHO H. EICHELBERGER & JACOB TRUST, Garnishees of LEWIS A. MUNCKS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 63; 1860 Md. LEXIS 12 

February 27, 1860, Decided 

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

Attachment on judgment issued at the instance of the appellant, on the 23rd of November 1855, and on the next day laid in the hands of Eichelberger and Trust, as garnishees of Muncks, the judgment debtor. Plea nulla bona.

Exception.--It was admitted that Muncks, on the day of its date, executed the deed of trust, hereinafter mentioned, by which he conveyed all his property, debts and effects to the garnishees, who accepted the trust, took possession of the property and assets and immediately sold the same for cash, realizing thereby the net sum of $ 3222.99; that they also proceeded to collect the debts, and after deducting expenses and commissions, they have received from all sources a total sum of $ 9133.25, of which they have paid to the creditors and persons named in the schedule annexed to the deed, $ 4643.30, leaving in their hands a balance of $ 4489.95; that creditors of Muncks, having claims amounting to $ 8600, in addition to these mentioned in the schedule, have accepted the deed and signed a release of their claims against him; that besides these and the claim of the plaintiff, there are creditors who claim to have [**2]  due them in the aggregate about $ 1500, who have failed to accept the terms of the deed. It was also admitted that the day after the deed was executed, notice was given to the creditors of Muncks that it had been executed and that a preference was given by it to the creditors who should release within sixty days, by advertisement in the Baltimore American and Sun, and copies of such vertisement sent to the creditors living out of the city, and that the plaintiff is a citizen of Baltimore. It was also admitted that at the date of this deed Muncks was indebted to the plaintiff, for which debt the latter, in September 1855, recovered the judgment for $ 555, with interest and costs, on which this attachment issued, and that at the date of the deed Muncks was also indebted to other persons besides the plaintiff, in various amounts, which he was unable to pay.

The deed referred to is dated the 16th of December 1854. It recites that, "Whereas, the said Lewis A. Muncks is indebted to divers persons and firms in various sums of money which he is unable now to pay, but being willing and desirous to provide for and ultimately to secure the payment of all said debts and sums of money, so [**3]  far as his present means will extend, has, with that view, determined to execute these presents." It then, in its granting part, conveys to said Eichelberger and Trust, "and the survivor of them, and the executors and administrators of such survivor, all and singular the goods, wares, merchandize, stock in trade, chattels, property and estate of every kind and description, belonging to the said Lewis A. Muncks, and all debts, sum and sums of money, books of account, claims and other things due, owing and belonging to the said Lewis A. Muncks, and all his estate and interest therein; to have and to hold all the said estate and property, stock in trade, chattels and effects, debts, claims and sums of money hereby mentioned to be conveyed," unto the said trustees, "and the survivor of them, and the executors and administrators of such survivor," in trust, that the said trustees, "and the survivor of them, and the executors and administrators of such survivor, shall use due diligence to get into their possession the estate and property, hereby assigned and conveyed, and to collect and receive the debts and sums of money hereby assigned; and to that end" the grantor appoints the said trustees,  [**4]  "and the survivor of them, and the executors and administrators of such survivor," his attorneys irrevocable, in his name or otherwise, to adjust, settle and liquidate all accounts relating to the premises, "to collect and receive all the debts and sums of money hereby assigned, execute receipts for the same, and "to compound for any bad or dubious debt or debts, and one or more attorney or attorneys, agent or agents, under them, or either of them, for all or any of the purposes aforesaid, from time to time, to appoint, and again at his or their pleasure to displace," and upon the further trust, that the said trustees, "or the survivors of them, and the executors and administrators of such survivor, do and shall, as soon as conveniently may be, sell and dispose of by public auction, or at private sale, so much and such parts of the stock in trade, property and estate aforesaid, as are in their nature saleable, for the most money that the same will produce, in ready money, or on such terms of credit as the said trustees may approve," and to apply the proceeds and the moneys collected from the debts and claims hereby assigned, to pay, 1st, the expenses incurred in the preparation, acknowledgment [**5]  and recording of this deed, and the discharge of the trust, with all necessary counsel fees and all other proper costs and charges, including the hire and employment of the necessary clerks, accountants and other assistants, to close up the business of the trust, and a commission of eight per cent. to the trustees, on all moneys that may come into their hands by virtue of the trust; 2nd, "to the payment of any taxes now due on the aforesaid stock in trade, and of whatever rent may be due, or become due, on the store or warehouse on Baltimore street, rented by" the grantor, "until the aforesaid stock in trade shall be sold and disposed of by the said trustees, according to this agreement, as also to the payment of the sum of $ 80.38," a balance of one year's service due a clerk in the employ of the grantor; 3rd, "to the payment and discharge in full of the several and respective debts," specified in a schedule annexed to the deed, and to the payment of certain other claims specified in the deed. It then provides that the residue of the trust moneys shall be held by the trustees, "and the survivor of them, and the executors and administrators of such survivor in trust, to be applied [**6]  to the payment of the sum of $ 3000 loaned" by J. Matthias to the grantor, "and also to the payment and satisfaction, equally with the said Matthias, and in full or pro rata, as the said assets may permit, of all the creditors of" the grantor, other than the said Matthias, "whether in other respects preferred or not, who shall, within sixty days from the date of this deed, signify their assent to the terms hereof and execute and deliver to the" grantor "a full and final release and discharge of and from all claims and demands against him to the time of executing these presents, and after the payment of said creditors in full, if there should remain a surplus, then in trust for the remaining creditors of the" grantor "equally, and in case of any surplus, after paying all the creditors of the" grantor, "and, only in such case, then the surplus, if any, shall be in trust for the said" grantor, "his executors, administrators or assigns." The deed then provides "that the said trustees shall not be chargeable for any more than what they shall actually receive by virtue of these presents, nor accountable for any loss or damage which shall or may happen in and about the management or disposal [**7]  of the said trust estate, unless the same shall be occasioned by their wilful neglect or default."

This deed was, on the day of its date, duly executed and acknowledged by the grantor, and was also signed by the trustees, as evidence of their acceptance of the trust, and they also, at the same time, made oath that the consideration stated in it was "true and bona fide, as therein set forth." It was endorsed as "an assignment of chattels in trust," and on the same day recorded among the chattel records of Baltimore city.

The plaintiff then asked the court to instruct the jury that said deed of trust was void:

1st. Because it authorizes and empowers the trustees therein named, as soon as conveniently may be, to sell and dispose of, by public auction, or at private sale, so much and such parts of the stock in trade, property and estate by said deed conveyed, as are in their nature saleable, for the most money that the same will produce in ready money, or on such terms of credit as the said trustees may approve.

2nd. Because it authorises the trustees to sell the property by retail, or in parcels, as they may deem eligible.

3rd. Because, by the terms of the deed,  [**8]  the trustees are not accountable for any loss or damage which shall or may happen in and about the management or disposal of the trust estate, unless the same shall be occasioned by their wilful neglect or default.

4th. Because no notice was by the deed required to be given to creditors to file their releases, although the filing of such releases within sixty days is, by the deed, made essential to the right of creditors to come in among the preferred creditors.

5th. Because the deed provides for the payment, as a preferred debt, of whatever rent was due at the date thereof, or should thereafter become due, on the store or warehouse on Baltimore street, rented by the grantor, until the stock in trade conveyed by the deed should be sold and disposed of by the trustees.

6th. Because the said deed hinders, delays and defrauds creditors.

The court (LEE, J.) refused to give this instruction, and to this refusal the plaintiff excepted, and the verdict and judgment being against him, appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A deed of trust, for the benefit of creditors and exacting releases, in its premises conveys to two trustees, "and the survivor of them, and the executors and administrators of such survivor, all and singular the goods, wares, merchandise, stock in trade, chattels property and estate, of every kind and description, belonging to the" grantor. The habendum is, "to have and to hold all the said estate and property, stock in trade, chattels and effects," unto the said trustees, "and the survivor of them, and the executors and administrators of such survivor, in trust," &c. HELD:

That this deed conveys all the estate, real and personal, of the grantor, and a fee-simple interest in his lands, if he had any.

When the grant made by the premises is in conflict with that contained in the habendum of a deed, the limitation contained in the latter must be rejected, and the estates given in the former must prevail.

In a deed of trust conveying property to pay debts, the omission of the words, "and his heirs," does not confine the grant to personalty, but where the intent to convey all the grantor's property is manifest, a fee-simple in realty also passes by implication, under the deed.

The recording of a deed of trust for the benefit of creditors and exacting releases, is, in the absence of fraud, sufficient notice to the creditors.

It is no valid objection to an assignment for the benefit of creditors and exacting releases, that it provides that the trustees shall, as soon as conveniently may be, sell and dispose of by public auction, or at private sale, so much and such parts of the stock in trade, property and estate," conveyed, "as are in their nature saleable, for the most money that the same will produce, in ready money, or on such terms of credit as the said trustee may approve."

Nor is it a valid objection to such an assignment that it provides for the payment, as a preferred debt, "of whatever rent may be due, or become due on the store or warehouse rented by the grantor, until the stock in trade conveyed by the deed shall be sold and disposed of by the trustees, as above stated."

It is no objection to such an assignment that it provides that the trustees shall not be "accountable for any loss or damage which may happen in and about the management or disposal of the trust estate, unless the same shall be occasioned by their wilful neglect or default." 

COUNSEL:
Frederick W. Brune, for the appellant, argued that this deed was void:

1st. Because the power of sale given to the trustees is not a clear direction [**9]  to sell the entire trust subject, but only so much and such parts thereof as are in their nature saleable; thus leaving a portion of the trust subject undisposed of, which would belong to the grantor as a resulting trust.

2nd. Because if the power of sale should be construed to be a direction to sell and dispose of the whole trust subject, except the debts and claims, it is a direction to sell at private sale, as well as by public auction, and in parcels or by retail, and upon such terms of credit as the trustee shall approve.

3rd. Because this power of sale is extended and conferred upon the executor or administrator of the surviving trustee, and is not required to be exercised until said parties can conveniently do so; and by these and other provisions, such as that directing the payment, out of the trust property, of the rent which should accrue upon the warehouse of the grantor until the stock in trade should be disposed of, a delay in making the sales is authorised by the deed beyond what is necessary for the purposes of the trust, and a gradual disposition of the trust property, at private sale, upon such terms as the trustees may approve, expressly permitted.

4th.  [**10]  Because the deed was intended to convey, and only conveys the personal property of the grantor, and does necessarily and without any reservation whatever to himself, plainly and affirmatively appearing on the face of the deed, convey absolutely all his property, real and personal, and a fee-simple in his lands, if he had any, but only a life estate therein, and at the same time grants preferences and requires releases from his creditors, under the penalty of a postponement of their right to participate in the property conveyed.

In support of these positions, reference is made to 3 Md. Rep., 11, 38, 39, Green vs. Trieber; Ibid., 40, 48, 51, 52, Sangston vs. Gaither. 8 Md. Rep., 426, Malcolm vs. Hodges. 7 Md. Rep., 391, 393, American Exchange Bank vs. Inloes, and same case in 11 Md. Rep., 182. 11 Md. Rep., 380, Rosenberg vs. Moore. 14 Md. Rep., 28, 29, 30, Barnitz vs. Rice. 9 Barb., 256 to 258, Woodburn vs. Mosher. 9 G. & J., 77, Hope vs. Hutchins. 18 Pick., 539, Godfrey vs. Humphrey. 20 Pick., 256 to 258, Bullard vs. Goffe. 7 Taunt., 79, Doe vs. Rout. 1 Md. Rep., 344, McChesney vs. Bruce. 3 Md. Rep., 446, Cole vs. Ensor. 6 H. & J., 228, Beall vs. Holmes.

R. R. Battee and Levin [**11]  Gale for the appellees.

1st. The deed provides that the trustees shall, as soon as conveniently may be, dispose of the property, for the most that it will bring in ready money or on such terms of credit as they shall approve; and further that the trustees shall pay the rent of the store theretofore occupied by the grantor until the stock of goods shall be disposed of in pursuance of the deed. From these two provisions the appellant seeks to draw the conclusion that the deed is void: 1st because it allows a sale on credit; and 2nd, because it authorises a sale of the property by retail or in parcels. Without granting the second reason, the appellees insist, that these provisions only give to the trustees a reasonable and sound discretion in the exercise of their duties, which it was proper they should have. 11 Md. Rep., 184, American Exchange Bank vs. Inloes; 13 Md. Rep., 179, Maennel vs. Murdoch; 13 Md. Rep., 538, 566, Berry vs. Matthews.

2nd. Another objection is, that by the terms of the deed, the trustees are not liable for loss or damage to the estate unless occasioned by their wilful default. To meet this objection, the appellees refer to and rely upon 13 Md. Rep., 175,  [**12]  180, Maennel vs. Murdock; 4 Gill, 133, McCall vs. Hinkley; 8 Gill, 473, Kettlewell vs. Stewart.

3rd. A third objection is, that the deed gives a preference to such creditors as shall release within sixty days, but makes no provision for notice to the creditors. To this objection the appellees answer, that all the deeds requiring releases which have been before this court are similar in terms, in reference to this provision, and that not one of them contains a clause requiring notice to be given to creditors. The recording of the deed, which is necessary to give it validity, is notice to all the world, and especially to creditors and others interested in the property. 8 Gill, 473, Kettlewell vs. Stewart; 4 Gill, 132, McCall vs. Hinkley; 11 Md. Rep., 250, Williams vs. Banks; 13 Md. Rep., 493, Cooke's lessee vs. Kell.

4th. Another objection, which was not urged in the court below, but now presented for the first time, upon the authority of Barnitz vs. Rice and Rosenberg vs. Moore, is, that the deed does not upon its face convey all the property of the grantor, real as well as personal, and but a life estate in his land, if he had any. To this the appellees reply that the terms [**13]  of this deed are unlike those in the cases referred to, and that it does embrace all the grantor's property of every description. The terms "estate of every kind and description" are the most comprehensive that could be used, and are clearly sufficient to pass real estate, and in such a deed as this it is not necessary that the word "heirs" should be used in order to pass a fee-simple in land. 9 Gill, 262, Spessard, et al., vs. Rohrer, et. al. In the case of Malcolm vs. Hodges, 8 Md. Rep., 419, the same words were held sufficient to pass all the grantor's property, real as well as personal.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*71]  LE GRAND, C. J., delivered the opinion of this court.
This is an attachment. The debt, and a sufficiency of funds in the hands of the garnishees to pay it, are not denied. The defence is, that on the 16th day of December 1854, the defendant, Lewis A. Muncks, executed a deed to the garnishees of his property, for the payment of his debts. In reply, the plaintiff contends that this deed is void, and asked the court below to so instruct the jury, which the court refused to do. Upon the validity of [**14]  the deed depends the decision of this case.
In its premises, or recital, it declares, that the said Lewis A. Muncks "hath granted, bargained and sold, assigned, conveyed, transferred and made over, and by these presents doth grant, bargain and sell, assign, transfer, convey and make over, unto the said Otho W. Eichelberger and Jacob Trust, and the survivor of them, and the executors and administrators of such survivor, all and singular the goods, wares, merchandise, stock in trade, chattels, property and estate of every kind and description belonging to the said Lewis A. Muncks, and all debts, sum and sums of money, books of account, claims, and other things due, owing and belonging to the said Lewis A. Muncks, and all his estate and interest therein." In the habendum of the instrument it is said, that the grantees are "to have and to hold all the said estate and property, stock in trade, chattels and effects, debts, claims and sums of money hereby mentioned to be conveyed, transferred and assigned, unto the said parties hereto of the second part, and the survivor of them, and the executors and administrators of such survivor, in trust and confidence," &c.

 [*72]   [**15]  The reasons assigned in argument why the deed should be considered void, are somewhat different from those urged at the trial below. It is urged before this court, that the deed was, and is, void, because it was intended to convey, and only conveys, the personal property of the grantor, and does not necessarily convey all his property, real and personal, and not a fee-simple interest in his lands, if he had any. This objection was not embraced in the instruction refused by the court, but had it been we do not think it should have availed.
In construing deeds of trust in favor of creditors, this court has, on more occasions than one, said, that the deed, on its face, must convey all the property of the grantor, and that the deed must be interpreted by its own language. Rosenberg & Blondheim vs. Moore, 11 Md. 376. The question then is, does this deed convey all the estate, real and personal, of the grantor? We are of opinion it does do so. In the premises the grant is, of his "estate of every kind and description."
In the case of Budd vs. Brooke, et al., 3 Gill 198, the the court holds the following language, which is conclusive [**16]  of question: "The technical meaning of the word 'premises,' in a deed of conveyance, is everything which precedes the habendum, and it is in the premises of a deed that the thing is really granted." Speaking of the case then before them, the court proceeds to say: "According to our construction of the grant, made by the premises, it is in direct conflict with that contained in the habendum Both cannot prevail. One must overrule the other. Which takes precedence, is the question? In our opinion, the limitations contained in the habendum must be rejected, and the estates given in the premises must prevail. In 2 Lomax's Dig., 188, it is stated, that 'where there are two clauses in a deed, of which the latter is contradictory to the former, then the former shall stand.' And at page 215, of the same book, it is said, that 'where the habendum is repugnant and contradictory to the premises, is is void, and the grantee shall take the estate given in the premises.'"

 [*73]  The objection that there are no words of inheritance in the deed, is fully answered by the case of Spessard and others vs. Rohrer and others, 9 Gill 261, in which it was decided [**17]  that, in a deed of trust, conveying property for the payment of the debts of the grantor, the omission of the words, "and his heirs," did not have the effect of confining the grant to personalty, but where the intent to convey all the property of the grantor was manifest, a fee-simple in realty also passed, by implication, under the deed.
All the other exceptions to the deed, with the exception of the one which declares against its validity because it does not require notice to be given to the creditors, are answered by the case of Maennel et al., vs. Murdock et al., garn. of Falconer & Haskell, 13 Md. 163. In regard to notice, the recording is, in the absence of fraud, sufficient. Williams vs. Banks, 11 Md. 198. Cooke's lessee vs. Kell, 13 Md. 469. Perceiving nothing erroneous in the ruling of the court we affirm its judgment.
Judgment affirmed. 

132 of 196 DOCUMENTS 

HENRY BELL vs. JAMES F. PURVIS and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 22; 1860 Md. LEXIS 7 

February 24, 1860, Decided 

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

This appeal is taken from an order of the court below, (KREBS, J.,) granting an injunction upon a bill filed by the appellees against the appellant. The facts under which the injunction was granted, are stated in the opinion of this court.  

DISPOSITION:
Order reversed and cause remanded.  

HEADNOTES:

Where an answer comes in before the injunction is ordered, and so denies the equity of the bill as to authorize a dissolution of the injunction on motion to dissolve, the injunction ought not to be granted.  

COUNSEL:
Thos. S. Alexander for the appellant.

The injunction was not granted till after answer filed, and that answer denies fully all the averments in the bill. The general rule is, that any judgment of a court at any stage of the cause must be upon the record as it then stands. It must be assumed, therefore, that this injunction was granted on consideration of the bill and answer. It is believed that, in point of fact, the court looked only to the averments of the bill. But the answer, for the reason stated, must be looked to, and as it swears away the whole equity of the bill, the order granting the injunction, after such an answer filed, is erroneous and must be reversed.

No counsel appeared for the appellees.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*23]  ECCLESTON, J., delivered the [**2]  opinion of this court.
This bill, praying for an injunction, was filed in the Circuit Court for Baltimore city, on the 13th of April 1859, by the appellees against the appellant. A subpoena was issued, returnable the second Monday of May following.
The defendant appeared the 15th of April and filed his answer on the 6th of May. Twelve days after, the court passed an order granting an injunction; from which order the present appeal was taken.
The answer denies the equity of the bill; and if the injunction had been granted, and such an answer had been subsequently filed, it would have authorized a dissolution of the injunction, upon a motion to dissolve. If this be true, then, inasmuch as the answer came in before the injunction was ordered, it should not have been granted. Hall vs. McPherson, 3 Bland's Ch. Rep., 529. 3 Danl. Ch. Pr. 1813, 1814, (Ed. 1846.)
Order reversed and cause remanded. 

133 of 196 DOCUMENTS 

RICHARD THOMPSON vs. THOMAS FRIST, JOHN W. FOWLER and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 24; 1860 Md. LEXIS 8 

February 24, 1860, Decided 

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

The appellant (Thompson) in the latter part of 1856, obtained several small judgments against Thomas Frist, upon the separate and individual debts of Frist, and on these judgments writs, of fi. fa. were issued and levied upon the partnership effects of the firm of Frist & Fowler composed of said Frist and John W. Fowler.

The bill in this cause was then filed by Fowler, against Frist, Thompson and the officers who levied the execution, praying for an injunction to restrain further proceedings on the execution, for the appointment of a receiver to take charge of the partnership property, for a dissolution of the partnership, and that its effects may be applied to the payment of its debts and liabilities.

All the defendants appeared voluntarily in the case, and it was agreed between all the parties that a receiver should be appointed, "and that the goods and effects of Frist and Fowler be sold, the proceeds to be brought into court and distributed among those thereunto entitled." A receiver was accordingly appointed, who sold the partnership effects, and after notice to the creditors of the firm to file their claims, the [**2]  fund in the hands of the receiver was distributed by an account stated by a special auditor. By this account the whole fund was applied to the payment of the claims of partnership creditors. To this account Thompson excepted because it did not allow his claims against Frist under his judgments and levy.

From the proceedings and proof taken before the auditor in regard to the appellant's claim, it appears that Frist carried on the business of coach-making, at first in his own name, and for his own account, and bought largely from Thompson articles used in his business, for which he gave his notes and was indebted to Thompson at the time when Frist and Fowler formed their co-partnership, and that Frist took his stock in trade into the co-partnership as part of his capital. Afterwards Thompson warranted Frist for the amounts so due on his notes and recovered the judgments upon which fi. fas. were issued and levied as above stated.

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

"In view of the object of the bill filed in this case, and the agreement filed therein, 'that a receiver be appointed and the goods and effects of Frist & Fowler be sold, and the [**3]  proceeds be brought into court and distributed amongst those entitled thereto', I must regard this fund as partnership effects in a court of equity, with the parties claiming to be entitled thereto, also, before the court and submitting their respective claims, to be decided according to those principles and rules that regulate courts of equity in such cases. Assuming that the interest of a partner in the partnership effects may be the subject of execution and sold for the payment of the individual creditor of the partner, without enquiring as to the precise course which should be pursued under the execution by such creditor to obtain satisfaction of his debt, in case no proceedings in equity are resorted to by the other partner, I am clearly of opinion that under proper proceedings in equity, on his part, such relief would be afforded to him, that the creditor would be in no better condition in reference to the partnership effects than the partner whose interest is taken under the execution. 1 Stockton's Ch. Rep., 62, Renton vs. Chaplain, et al. 31 Miss., 111, Sanders vs. Young. If this view be correct, the individual creditor can claim only to have applied to the payment of his debt,  [**4]  the money and effects to which the partner against whom he proceeds will be entitled upon a settlement of the partnership accounts at the time of the execution levied. Such creditor, therefore, cannot acquire, by levying his execution upon the partnership effects, any specific lien thereon for the payment of his debt, which he could enforce by sale or otherwise, in opposition to the right of the other partner to have such effects, with the other property of the firm, administered in equity in the settlement of the partnership affairs. Now, it is perfectly well settled that, when partnership funds are in a court of equity, as these are, to be applied and distributed according to the rights of parties interested in them, they must be applied, in the first instance, to the payment of the partnership creditors. It is true, as has been contended by the solicitor of the separate creditor, in this case, that the partnership creditors have no actual direct lien upon the partnership effects by virtue of which they are entitled to insist that such effects shall be appropriated to the payment of their claims, but they have what is termed in the decisions a derivative or indirect lien, which is [**5]  made operative for their benefit through the instrumentality of the partners. If either proceeds to have the partnership administered in a court of equity, the right which he has to have it applied to the payment of the partnership creditors enures to their benefit, and secures to them payment out of the joint effects. This is precisely what the partner Fowler is doing by these proceedings. He has filed a bill for the dissolution of the partnership, and for the distribution of the funds in the settlement of liabilities, and, under the agreement above referred to, they are brought into court for that purpose, the dissolution of the partnership being acquiesced in. If, in the further proceedings in this matter, it should appear that Frist is entitled to any moneys or effects from the partnership concern, they would, in my opinion, be applicable to the payment of these executions against his interest in the said partnership. I shall therefore pass an order in conformity with these views."

The court then passed an order overruling the exceptions filed by Thompson to the account of the special auditor, and ratifying said account, from which order Thompson appealed.  

DISPOSITION:
Order affirmed.  [**6]  

HEADNOTES:

Where partnership funds are in a court of equity for distribution, an individual creditor of one of the partners, who has obtained judgment and levied execution upon the partnership effects, can have applied to his debt only the money or effects to which the partner against whom he proceeds is entitled upon a settlement of the partnership accounts at the time of the execution levied.

Such a creditor cannot acquire, by levying his execution upon the partnership effects, any specific lien thereon, for the payment of his debt, which he could enforce by sale, or otherwise, in opposition to the right of the other partner to have such effects with the other property of the firm, administered in equity, in the settlement of the partnership affairs.

Where partnership funds are in a court of equity, to be applied and distributed according to the rights of parties interested in them, they must be applied, in the first instance, to the payment of the partnership creditors.

Though partnership creditors have no actual direct lien upon the partnership effects by which they can have them applied to the payment of their claims, yet they have a derivative or indirect lien which is made operative for their benefit through the instrumentality of the partners.

If either partner proceeds to have the partnership estate administered in a court of equity, the right which he has to have it applied to the payment of the partnership creditors enures to their benefit, and secures to them payment out of the joint effects.  

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

1st. That partnership creditors have no lien upon the partnership property, and no preference, in their own right, to payment out of the partnership effects over private creditors of the partners. 2 Md. Rep., 16, Glenn vs. Gill. 13 Md. Rep., 114, Griffith vs. Buck.

2nd. That the preference given to partnership creditors upon partnership property, over private creditors, is because of an equity derived through the partners, and being only an equity, must depend for its enforcement upon equitable principles.

3rd. That by reason of the fact that the stock carried by Frist into the partnership concern, was bought by him from Thompson and not paid for, the equity of Fowler, otherwise good, is not in this case available.

4th. That Thompson had a right at law to levy on Frist's interest in the goods of the concern, and that by doing so he secured a legal lien, and that equity cannot stop its enforcement by injunction. 2 H. & McH., 463, Wallace vs. Patterson. 1 H. & G., 322, M'Elderry vs. Flannagan. 15 Johns., 180, Messereau vs. Norton. 2 Johns. Ch. Rep., 548, Moody vs. Payne. 8 G. & J., 324, Union Bank vs. Poultney. 3 Bac.  [**7]  Abr., 391, Title, Execution C., 4.

5th. That when Thompson consented to let the sales be made by a receiver, "the proceeds to be brought into court for distribution among those entitled thereto," he did not waive his legal lien, and his equity being equal, under the circumstances of this case, to that of the partnership creditors, he is entitled to be paid in full.

I. N. Steele for the appellees.

The fund in the hands of the receiver being inadequate to the payment of the partnership creditors, the question is whether the appellant has any lien or right of preference in payment for his claims against Frist individually, which will defeat or postpone the ordinary right of the partner Fowler, and the partnership creditors, to have the partnership assets first applied to the payment of the partnership debts? The appellees insist he has no such right, because the fund in the hands of the receiver being partnership assets brought into a court of equity for distribution, was primarily liable for the payment of the partnership debts, and the lien of the appellant, if any, was acquired by him by his judgments and executions on the separate debts of one partner, was a lien only [**8]  on what might remain and be coming to that partner after the settlement of the partnership affairs. Story on Part., sec. 361 and notes, and secs. 261 to 264. Collyer on Part., secs. 824 to 831. 3 Kent, 77, and note, (7th Ed.) 2 Md. Rep., 1, Glenn vs. Gill. 1 Stockton's Ch. Rep., 62, Renton vs. Chaplain, et al. 31 Miss., 111, Sanders vs. Young. 16 Ohio, 142, Place vs. Sweetzer, et al. 16 Johns., 106 and notes.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*28]  ECCLESTON, J., delivered the opinion of this court.
Our examination of this case has satisfied us that the order appealed from is fully sustained by the reasons assigned in the opinion of the Judge of the Circuit Court; and, therefore, for those reasons the order will be affirmed, with costs.
Order affirmed. 

134 of 196 DOCUMENTS 

WESLEY RICKETTS and JOHN WHITTINGTON vs. JAMES MONTGOMERY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 46; 1860 Md. LEXIS 10 

February 24, 1860, Decided 

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

The bill in this case was filed on the 14th of April 1854, by the appellee against the appellants, and Wm. E. Murphy, and James Hooper, to vacate and annul a sale of the steamer Jewess, made by Whittington & Hooper, on the 1st of March 1854.

Montgomery and Murphy (the latter residing in Louisiana) were each half-owners of the steamer, and differences having arisen between them, as to the employment of the vessel and payment of costs for alterations and repairs upon her, Murphy employed Hooper to procure a sale of her, and a settlement of the accounts, payment of liabilities, and an equitable distribution of the proceeds. On the 9th of January 1854, Montgomery conveyed his interest in the steamer to Whittington, and on the same day Montgomery and Whittington entered into an agreement by which Whittington was to unite with Hooper in the sale of the vessel, the sale, however, not to be made before the 28th of February following, and if, in the meanwhile, Montgomery should purchase from Hooper his half of the vessel, no sale was to be made, and Whittington was to reconvey the steamer to Montgomery, and if the [**2]  sale should be made, the proceeds were to be applied to pay expenses, commissions and debts of the vessel, and the residue to Montgomery and Hooper, in equal proportions. On the 16th of February 1854, Whittington and Hooper entered into a covenant, each to the other, in the penalty of $ 1000, to sell the vessel at public auction on the 1st of March then ensuing, at one o'clock P. M., at the Exchange. On the day of sale, Ricketts, who was the partner of Whittington, became the purchaser of the vessel at the bid of $ 12,500, and on the 31st of the same month, Whittington and Hooper conveyed her to the firm of Ricketts & Whittington, by whom she was subsequently sold, and after passing through the hands of various purchasers, was finally lost at sea.

The bill charges fraud on the part of Whittington, in forcing the sale at an unfavorable time, in purchasing at his own sale for less than the value of the vessel, and various other devices, on his part, to defraud the complainant. All of these charges are denied by the answers.

A large mass of testimony was taken on both sides, in reference to the value of the vessel, the allegations of the bill and answers, the facts and circumstances,  [**3]  preceding, attending, and following the sale. The purport of this proof is sufficiently stated in the opinion of this court.

The court below (LEE, J.) passed a decree vacating the sale as to the half of the vessel owned by the complainant, and that Ricketts and Whittington account with him for such half at the rate of $ 30,000 for the whole vessel, subject to certain allowances and deductions for debts and repairs, and referring the cause to a special auditor to state the account. From this decree Ricketts and Whittington appealed.  

DISPOSITION:
Decree affirmed and cause remanded.  

HEADNOTES:

As a general rule, a trustee or person acting in a fiduciary character cannot purchase, on his own account, or acquire an interest in property, which his duty or trust requires him to sell on account of another.

An obligation by which a trustee binds himself, in a penalty, to a third party, to sell the trust property absolutely on a certain day, is a contract in violation of his duty; he ought not by his own voluntary act to create an interest against his duty.

An application by the cestui que trust, to be allowed to participate in the purchase, which was refused, is not such an acquiescence in the sale to the trustee as to make it valid; if an acquiescence at all, it is but a conditional one, the condition of which was not agreed to.

Where the property is lost or so disposed of, in consequence of the conduct of the trustee, that it cannot be returned or put in a condition to be re-sold, the cestui que trust is entitled to the full value of the property at the time of sale by the trustee.

The trustee should be charged with the utmost value of the property when there is no possible means by which the court can reinstate the cestui que trust in his interest, yet when the actual value can be clearly ascertained, that must be the indemnity. 

COUNSEL:
Levin Gale and St. Geo. W. Teackle, for the appellants, argued:

1st. That Whittington committed no fraud in fact.

2nd. That Whittington did not purchase at his own sale, but became subsequently interested in the purchase.

3rd. That if Whittington was, within the meaning of the rule, a purchaser at his own sale, yet it was at the solicitation of Montgomery who now complains of it, and that this sale was afterwards acquiesced in and ratified by Montgomery.

4th. That the testimony shows, that if any fraud in law or in fact, was perpetrated, it was commenced, carried on and enacted by Montgomery [**4]  himself, and he has no right to ask any redress for the same.

5th. That if any fraud, either in law or in fact, was committed in any of the transactions in reference to the sale or disposition of the steamer, such frauds were committed against the rights and interests of Murphy or Hooper, and that Montgomery was either the author of, or a participant in, such frauds, and that the sale having been ratified by Murphy and Hooper, Montgomery cannot interfere with or avoid the sale.

6th. That the decree, if in other respects good, is erroneous, inasmuch as it places an estimate upon the vessel, as the basis of the accountability of the appellants, far too high, and wholly unwarranted by the evidence.

Geo. H. Williams, for the appellee, argued:

1st. That the fiduciary character of Whittington being incontrovertibly established, he could not, in any event, be himself a purchaser, nor interested in any way in the purchase, and the appellee was entitled, as of course, to come in and set aside the purchase without showing even actual in-jury. 12 Md. Rep., 416, 417, Keighler, et al., vs. The Savage Manf. Co. 2 Gill, 99, Brooke vs. Berry. Ibid., 169, Bell vs. Webb.

2nd.  [**5]  The evidence clearly shows that Whittington was interested in the purchase at the time it was made. By the bill of sale of the vessel, made within less than a month after the sale took place, from Whittington and Hooper to Ricketts & Whittington, Whittington is estopped from denying that he was one of the purchasers at the sale.

3rd. That there was no acquiescence in or ratification of the sale on the part of Montgomery, but on the contrary, the day afterwards, his counsel notified Whittington that Montgomery would treat the sale as a nullity, and prohibited any attempt to make a title to any one for the steamer.

4th. That the steamer having been sold and title made in defiance of this prohibition, and the ship placed out of the reach of the court, and finally lost, the appellee is entitled to a decree for one half of her full value as a marketable article, subject to an accounting as to any advances made by Whittington for the payment of her debts; that for the purposes of this cause and for the measure of relief to be afforded the appellee, the true question is, what could she have been sold for? and what did she sell for? And that as against a fraudulent trustee, the highest [**6]  amount of value will be decreed. 1 H. & G., 70, Ringgold vs. Ringgold. 15 Ves., 439, Lupton vs. White.

5th. That the bond to Hooper of the 16th of February 1854, whereby Whittington disabled himself from being a faithful trustee, was the grossest fraud, and entitles the appellee to the highest amount of damages.

6th. That the estimate put upon the steamer by the decree, so far from being too high, was, in fact, too low, and the only party, therefore, really entitled to complain of the decree is the appellee who has had the value of his steamer estimated, by the court below, at the lowest amount as testified to by any of the witnesses.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*49]  ECCLESTON, J., delivered the opinion of this court.
It was conceded, in argument, by the appellants' counsel, that in regard to the sale of the steamer Jewess, made on the 1st of March 1854, John Whittington was acting under an authority from James Montgomery, which constituted the former an agent or trustee of the latter.

 [*50]  It is well settled, as a general rule, that a trustee or person acting in a fiduciary character, cannot purchase,  [**7]  on his own account, or acquire an interest in property, which his duty or trust requires him to sell on account of another. Although this has not been denied, we deem it proper to refer to the case of Michoud, et al., vs. Girod, et al., 4 How. S. C. Rep. 554, where numerous authorities on the subject are cited, and the rigor of the rule is very fully set forth. And it will be seen on page 556, how carefully the rights of the cestui que trust are to be protected, even when it has been understood between him and his trustee that the fiduciary relation shall be considered as dissolved, and a sale is then made to the trustee. On this point the court say: "We scarcely need add, that a purchase by a trustee of his cestui que trust, sui juris, provided it is deliberately agreed or understood between them that the relation shall be considered as dissolved, 'and there is a clear contract, ascertained to be such, after a jealous and scrupulous examination of all the circumstances, and it is clear that the cestui que trust intended that the trustee should buy, and there is no fraud, no concealment, and no advantage taken by the trustee of information acquired by him as trustee,  [**8]  ' will be sustained by a court of equity. But it is difficult to make out such a case, where the exception is taken, especially when there is any inadequacy of price, or any inequality in the bargain." After referring to many authorities, the court then says: "And therefore, if a trustee, though strictly honest, should buy for himself an estate from his cestui que trust, and then should sell it for more, according to the rules of a court of equity, from general policy, and not from any peculiar imputation of fraud, he would be held still to remain a trustee to all intents and purposes, and not be permitted to sell to or for himself."
In addition to the above case, see 12 Md. 415, 416, 417, Keighler, et al., vs. Savage Manufacturing Co.
Notwithstanding Wesley Ricketts, alone, made the bid at which the Jewess was struck off, the circumstances disclosed in evidence have induced us to believe that Whittington, the trustee of Montgomery, and partner of Ricketts, was interested 

 [*51]  in the purchase; and that Ricketts knew Whittington was a trustee for the sale of Montgomery's share of the steamer.
Believing, as we do, that Whittington was really, if not ostensibly,  [**9]  a participant in the purchase of the Jewess, at the sale on the 1st of March 1854, then, in view of the principles enunciated in 4 How. and 12 Md. Rep., the evidence in the cause is not deemed sufficient to show such a prior assent to, or subsequent acquiescence in, the sale, as should render it valid, and prevent Montgomery from having any right to insist upon its being set aside.
The obligation entered into between Hooper and Whittington, binding each to the other in the penalty of $ 1000, that the sale should be made, absolutely, on the 1st day of March 1854, at 1 o'clock, P. M., if not sooner disposed of, was a contract in violation of Whittington's duty as a trustee. Such an obligation was calculated to prompt him to sell, for the purpose of avoiding the penalty, when, if untrammelled by the contract, he might believe the rights and interests of his cestui que trust demanded a postponement. Thus, by his own act, the trustee's interests would be in conflict with his duty. How, at the time of the contract, could he have known but what the circumstances, on the proposed day of sale, might be such as would work gross injustice to the cestui que trust, if the sale [**10]  should then be made. In Gaither vs. Myrick, 9 Md. 118, the language of Lord Ellenborough is quoted from 1 Camp. 527, where he says: "No man should be allowed to have an interest against his duty." He certainly should not, by his own act, voluntarily create such an interest.
It appears that on the day of sale, at the request of Montgomery, J. M. Kane went with him to the place of sale, for the purpose of asking for a postponement. Whittington was asked to postpone the sale; he replied that he could postpone it no more, that both Mr. Hooper and himself were under bonds to each other of $ 1000, and that it should be postponed no more, that they had postponed it several times, and now they had entered into that arrangement it should positively be sold that day. It was then proposed to Whittington that he should buy the steamer for Montgomery, to which Whittington 

 [*52]  replied that he would not do any such thing, that he would have nothing to do with buying her; that Mr. Ricketts might buy her, and that he (Whittington) had promised to loan Rickets $ 10,000. Ricketts was then asked to buy her for Montgomery, and he also refused.
During the same [**11]  afternoon, subsequently to the sale, application was made by Montgomery to be allowed to participate in the purchase, but he was not permitted to do so. This application has been relied upon, in argument, as a sufficient acquiescence, on the part of Montgomery, in the sale. If it was any acquiescence, it amounted to nothing more than a conditional one, the condition being that he should be permitted to share in the purchase, which was not agreed to. If he believed, as may well be supposed he did, that the steamer had been sold for less than her value, he might willingly acquiesce in the sale, provided he could participate in the purchase, and still he might be very unwilling to acquiesce when other persons were to enjoy the benefit of it to his exclusion.
On the 2d of March 1854, Montgomery's counsel gave Whittington the following notice:
"Sir: Make no title to any one for the steamer Jewess. Mr. Montgomery will treat the sale as a nullity, and any effort to turn it into a reality will be resisted. Of course anything done by you adverse to his wishes must be at your peril."
The bill was filed on the 14th of April 1854, and in May following the steamer was sold by Ricketts and [**12]  Whittington. Subsequently she was lost at sea. A decree for a re-sale would therefore afford no relief to the complainant, and the court below did right in passing a decree in his favor for his proportion of the value of the vessel.
The decree estimates her whole value at $ 30,000, subject to certain deductions for repairs and debts.
The grounds on which this estimate is based have been fully examined, and, by a majority of the judges sitting in this cause, the proof is deemed sufficient to justify the estimate in such a case. The authorities on this subject sustain the proposition that, in cases similar to the present, when the property is lost or so disposed of, in consequence of the conduct of a trustee, 

 [*53]  that it cannot be returned or put in a condition to be re-sold, the cestui qui trust is entitled to the full value of the property at the time of the sale by the trustee.
In Ringgold vs. Ringgold, 1 H. & G. 11, it is recognized as a correct principle, that the trustee should be charged with the utmost value of the property, when there is no possible means by which the court can reinstate the complainants in their interest. The court say:  [**13]  "This is the principle adopted in the case of a mixture or confusion of property, and the ground of it is, that although the trustee may be injured by its application, yet the cestui que trusts are certain of indemnity; and it would be but just, that if, in the impossibility growing out of the conduct of the trustee of ascertaining the actual value, injury should probably result, it should rather fall on him whose conduct had been delinquent, than on the innocent cestui qui trusts. Yet, when the value of the property can be clearly ascertained, that must be the indemnity."
It cannot, with any propriety, be said in this case, that the value of the steamer can be clearly ascertained; when the proof on the subject is so very conflicting. It is shown, however, that, not long after the 1st of March 1854, she was actually sold for the price of $ 30,000, by Whittington & Ricketts. It is also in proof that on the 15th of February previous, Mr. Peters bid for her the sum of $ 27,500.
There are exceptions, in the record, to portions of the evidence, some of which are not very specific; and as the cause was elaborately and ably argued, without reference to those filed on the [**14]  part of the appellants, we supposed them to have been abandoned. Those filed by the appellee need not be noticed, further, than to say, that whether sustained or overruled they would not vary the decision announced in this opinion.
The decree of the court below will be affirmed, and the cause remanded for the purpose of having that decree carried into effect.
Decree affirmed and cause remanded. 

135 of 196 DOCUMENTS 

THE SPRING GARDEN MUTUAL INSURANCE COMPANY vs. RANDALL EVANS, use of J. P. RILEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 54; 1860 Md. LEXIS 11 

February 24, 1860, Decided 

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

Covenant brought on the 8th of September 1849, by the appellee against the appellant upon a fire insurance policy issued by the appellant to Evans upon a stock of goods and shop fixtures in a store in Winchester, Virginia. Plea non infregit.

This is the second appeal in the case. The former appeal is reported in 9 Md. Rep., 1, she loss by fire occurred on the 20th of March 1849, and on the next day Evans assigned the policy to Riley. The policy contains the usual clause relating to preliminary proof. The plaintiff alleged that such proof was furnished, and served notice upon the defendant to produce the papers relating thereto, which had been left with the company in Philadelphia shortly after the fire. At the trial under the procedendo, several exceptions were taken, parts of which only need be stated.

1st Exception.--For the purpose of introducing secondary evidence of the papers referred to in the above notice the plaintiff called Geo. W. Hammond, who proved that on the second day after the fire, he was in Winchester, and being about to proceed to Baltimore, he received a package of papers from Riley, who requested [**2]  him to deliver them to the defendant's agent, in Baltimore, who issued the policy. Witness did so, but the Baltimore agent declined to take any action in the matter and requested witness to take them to the defendant in Philadelphia. Witness then proceeded to Philadelphia and handed the papers to a person to whom he was introduced as the president of the company at its office there, and by whom he was told the matter should be laid before the board of directors and the result communicated to Riley. Witness said he did not read any of the papers and does not recollect any of their contents, but they were in the handwriting of Mr. Carson of Winchester, who was an agent for an insurance company. The plaintiff then for the purpose of refreshing the memory of this witness, offered to place in his hands, to be read by him, the following paper, dated Winchester, written, signed and sworn to, before a justice of the peace, by the witness, on the 18th of August 1849, the day of its date:

"At the request of James P. Riley, I make the following statement, to the best of my knowledge, recollection and belief, of the facts and occurrences spoken of. On the     of March last, I went to Baltimore [**3]  from this place, and the property of Randall Evans having been destroyed by fire two days before, I took with me at the request of the said J. P. Riley, certain papers connected with the assurance of the said Randall Evans in the Spring Garden Company of Philadelphia, to lay before the Baltimore agent of said company. These papers consisted of the policy of insurance, the assignment of said policy to the said James P. Riley, the affidavit before a magistrate of said Evans, to the effect that his loss by said fire exceeded the sum of $ 1500, the amount insured, and certificate of the acting magistrate to the good character of said Evans, and his opinion that said loss did so exceed said amount, and also a letter from said Riley to Mr. Lovegrove, the said agent. On the day after my arrival in Baltimore, I called at the office of said agent and was informed by his clerk that he was absent and would not return till late. I called the following day, saw Mr. Lovegrove, the agent, presented the letter from Mr. Riley and laid before him the aforesaid papers. He carefully inspected them, said they were in order, but remarked that as the Baltimore agency was (or would soon be) withdrawn, he [**4]  would prefer, as I was going to Philadelphia, my laying the papers before the mother institution there, to which I assented. His clerk then by his directions, sealed all the papers (together with the letter from said Riley to said agent) in an envelope, directed to the president of the institution in Philadelphia. Shortly after my arrival in Philadelphia, I presented this package at the office of the Spring Garden Company, to a person I suppose to be a clerk, who opened it and requested me to wait a short time, when the president (I think) would be in. The person referred to soon arrived with whom I had some conversation respecting the fire, &c. He examined the papers, said they were in form, and named a day when their board would meet and when the matter would be considered, and when the said James P. Riley, the assignee of said Randall Evans, would be informed of the result."

The defendant objected to the placing of this paper in the hands of the witness, to be read by him, but the court (LEE, J.) overruled this objection and permitted the same to be placed in the hands of the witness, and to be read by him, for the purpose of refreshing his memory. To this ruling the defendant [**5]  excepted.

2nd. Exception. The witness having then read and identified the paper, and the body of it, as in his handwriting, and having stated that he now recollects having made this affidavit when the facts of the transaction were fresh and recent, the plaintiff proposed to ask him whether or not upon reading the same he can state from recollection the contents of the papers left by him in Philadelphia? The defendant objected to this question, but the court allowed it to be put, and to this ruling the defendant excepted.

3rd. Exception. The witness having answered the question mentioned in the preceding exception, by saying that he had no recollection of the contents of said papers, the plaintiff then proposed to ask him this question: On reading the affidavit, can you, or can you not, say, that what you then stated therein, you then knew to be true? The defendant objected to this question, but the court allowed it to be put, and to this ruling the defendant excepted.

4th. Exception. The witness then, in reply to the question mentioned in the preceding exception, said that what he stated in said affidavit he then knew to be true, and now believes to be true. To this [**6]  answer the defendant objected, but the court permitted it to go the jury as evidence, and to this ruling the defendant excepted.

5th. Exception. The plaintiff then offered to read to the jury in evidence said affidavit. To the reading thereof, as evidence, the defendant objected, but the court allowed the same to be so read, and to this ruling the defendant excepted.

7th. Exception. After the evidence had been closed, several prayers were offered by the defendant, only one of which, the 3rd, need be stated, viz:

That there is no evidence in this cause that such preliminary proof of loss as is required by the 9th condition of the policy was furnished by the defendant before the institution of this suit.

To the rejection of this, with other prayers, the defendant excepted. The verdict and judgment were in favor of the plaintiff, and the defendant appealed.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

An affidavit was recognised by the witness as in his handwriting, but it was made at the recommendation of one of the parties, and not until nearly five months after the transactions of which it speaks occurred. HELD: That the witness could not be permitted to testify to his belief of the correctness of the facts set forth in it.

To allow a witness to refresh his memory by looking at a memorandum, it must have been made at the moment, or recently after the fact, but if made weeks or months thereafter, he will not be permitted to do so, nor if made at the recommendation of one of the parties.  

COUNSEL:
Chas. H. Pitts for the appellant.

The several exceptions in relation to the testimony of the witness, Hammond, show that in his examination-in-chief, when first called to the stand, he stated that he did not read any of the papers and did not recollect any of their contents. For the [**7]  purpose of refreshing his memory, the affidavit was placed in his hands and he was allowed to read it. He identified the paper as in his handwriting, and then said he now recollects having made such an affidavit when the facts of the transaction were fresh and recent. He was then asked whether, on reading this affidavit, he can state from recollection the contents of the papers? To this he replied that he had no recollection of the contents of the papers. He was then asked, "on reading the affidavit, can you, or can you not, say, that what you then stated therein you then knew to be true?" To this he replied, that what he stated in the affidavit he then knew to be true, and now believes to be true. The affidavit was then suffered to be read to the jury as independent testimony.

Now, apart from all other objections to these several rulings of the court below, it is sufficient to say that this affidavit was made at the request of Riley, the assignee of the policy, on the 18th of August 1849, nearly five months after the fire, and after the transactions which it professes to recount occurred. The rule of evidence in such cases is well settled, that the memorandum must be made at [**8]  the time of the transaction or recently thereafter, otherwise it is not admissible as evidence, and cannot be placed in the hands of the witness for the purpose of refreshing his memory. This is stated in 1 Greenlf. on Ev., sec. 438, and clearly decided in the case of O'Neale vs. Walton, 1 Richardson, 234. In the case of Good vs. Martin, 14 Md. Rep., 398, the memorandum was made either on the day of the transactions or within a week thereafter. Here, however, it was not made until nearly five months thereafter, and to admit this memorandum would be to relax the rules of evidence to a most dangerous extent; for if there is once a departure from the rule, that the writing must be contemporaneous with the transaction, and five months be allowed a witness within which to write down his recollections of the facts, it might, with equal propriety, be extended to six, ten or twelve, or even years afterwards.

On the former appeal in this case, it was decided that the refusal to produce the papers upon notice did not authorize any presumption or inference against the defendant, but simply enabled the plaintiff to give secondary evidence of their contents. If the above position, in regard [**9]  to the testimony of Hammond, be correct, and the evidence is inadmissible, it follows that no evidence of the contents of these papers was before the jury, and, consequently, no preliminary proof of the loss, as required by the policy, is in the case. The appellant's third prayer was, therefore, improperly rejected, and the judgment must be reversed without a precedendo, for the furnishing of such preliminary proof is a condition upon which the right of action upon the policy accrued, and on the former appeal it was decided, upon the same evidence now before the court in the present record, that there had been no waiver by the defendant of such proof.

Jno. P. Poe for the appellee.

On the former trial the plaintiff traced certain documents, or preliminary proof of the loss, into the possession of the defendant, and having served a notice to produce, claimed that it was competent for the jury to infer the contents to be as claimed by the plaintiff, but this court refused to allow such inferences in that state of case. On the second trial the plaintiff undertook to give secondary or inferior evidence of the contents of these documents. The defendant claims that the party offering [**10]  secondary evidence of the contents of documents in its possession, after notice to produce, is held to all the stringent rules of evidence. The plaintiff, however, insists that, in such a case, these rules of evidence ought to be relaxed; that the withholding of the papers was a suspicious circumstance, from which the jury may infer that, if produced, they would operate against the party refusing to produce them; that in such a case the secondary evidence need not be so strong as in ordinary cases of lost instruments, and that if the secondary evidence be vague or uncertain, every presumption shall be against the party withholding the higher evidence after a notice to produce.

The exceptions taken at the present trial, turn, principally, on the sufficiency of the secondary evidence of the contents of these papers. The first five exceptions are but successive phrases of the one substantial proposition, viz: cannot a cotemporaneous affidavit of facts within the knowledge of the deponent be read in evidence to the jury when verified by the witness who made it, as a cotemporaneous statement which he then knew to be true, and when the witness cannot revive his recollection after looking [**11]  at the document thus verified? If it were an entry made in the course of business, and the witness is dead, or fails to remember, all the writers agree that it can be read, but we cannot perceive, in the interminable confusion of the American authorities, a sensible difference between such an entry and a memorandum made, bona fide, by a disinterested party, as a faithful statement of matters passing through his hands which he then distinctly remembered, but in the long flight of years cannot recall, though he can authenticate, by his oath, the memorandum to be one which he knew to be true at the time. Indeed, we should think the document, thus verified, to be much better evidence than the dim recollections which may revive by its perusal.

If the witness, Hammond, had a recollection of the contents of the papers after reading his affidavit, that recollection thus refreshed would clearly be evidence, because this affidavit is ante litam motam, and is sufficiently cotemporaneous with the delivery of the documents by the witness. 1 Greenlf. on Ev., secs. 438, 436. But where the failure of the witness's memory deprives us of the benefit of his refreshed recollection, we still possess [**12]  his verification of the document itself as a then faithful record, now recollected to have been correct at the time. Surely this is better and more credible evidence than a recollection feebly refreshed. But this court has recently, in the case of Good vs. Martin, 14 Md. Rep., 398, had this subject under consideration and adopted the rule, sanctioned both by reason and justice, that where the witness neither recognises the memorandum as having been seen by him before, nor awakens his memory to the recollection of anything contained in it, but, nevertheless, knowing the writing to be genuine, his mind is so convinced that he is, on that ground, enabled to swear positively to the fact, the testimony will be received. To that authority and the cases there cited, we confidently refer, as settling the question now before the court. Among the cases thus referred, the court's particular attention is called to 3 Rhode Island, 132, State vs. Colwell, and 3 Foster, 471, Watson vs. Walker.

If we are right in the position, that the evidence of Hammond, and his affidavit, was properly admitted, there was no error in the rejection of the defendant's third prayer, because there was proof from [**13]  which the jury could infer, that the 9th condition of the policy, as preliminary proof, had been complied with. Where there is any evidence, even if slight, yet tending to pave the issue, a prayer that there is no evidence must be rejected. 9 Gill, 331, Belt vs. Marriott.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*61]  LE GRAND, C. J., delivered the opinion of this court.
This case was before this court at June term 1856, and the decision then given must control the one now to be made, the record not having been materially altered as to its facts. We regret this because, there is nothing appearing in the evidence from which we can infer there had been any concealment or fraud on the part of the insured or his assignee. But this case, like all others, is to be made out by legal evidence, and this, in our opinion, has not been done.
At the former trial it was held by this court, that there was no waiver of preliminary proof, and that the refusal of the defendant, after notice to do so, to produce the papers left at its office with its president, in Philadelphia, did not authorize any inference against the party refusing; that its [**14]  only legal effect was, to allow the opposite party to prove their contents. 9 Md. 17.
We consider it unnecessary to pronounce upon each of the exceptions, because the recovery of the plaintiff depends on the affidavit of George W. Hammond, of the 18th day of August 1849, and the testimony of Hammond in regard to it. If the testimony was inadmissible, then, the third prayer of the defendant was improperly rejected.
Much has been written and decided as to the use which may be made of memorandums in relation to the matter inquired of at the trial, and great difference of opinion expressed. In the case of Martin vs. Good, 14 Md. 398, decided at the June term 1859, this court adopted the rule, as it had been relaxed from its former strictness by some of the courts of this country.
In that case a paper containing the terms of a settlement 

 [*62]  between partners, was placed in the hands of a witness to refresh his memory. The witness recognized the paper as in his handwriting, but did not remember where or when he wrote it, though he thought it was on the day of the settlement, and it must have been within a week thereafter. His memory was [**15]  not refreshed, by reading the paper, so as to enable him to recollect the amount of accounts taken, or the particular debts assumed by each partner, but from the fact of its being in his handwriting, he had no doubt it did contain the true terms of the agreement made in his presence, and each and all the terms of the contract, as stated in the paper. This testimony was admitted, the court holding, that where the writing is neither recognized by the witness as one which he remembers to have seen before, nor awakens his memory to the recollection of anything contained in it, but, nevertheless, knowing the writing to be genuine, his mind is so convinced that he is, on that ground, enabled to swear positively to the fact, the testimony will be received.
In the case now before us, the fire took place on the 20th March 1849, and the affidavit of the witness was made on the 18th day of August of the same year, nearly five months thereafter. The paper is in the handwriting of the witness, recognized by him as such; and the question is, whether after such a lapse of time, the witness may be permitted to testify to his belief of the correctness of the facts set forth in it? We think not. In [**16]  the case of O'Neale vs. Walton, 1 Richardson, S. C. Rep., 234, the court review and explain the case of State vs. Rawls, 2 Nott. & McCord. 331, and decide that, in order to allow a witness to refresh his memory by looking at the memorandum, it must have been made at the moment, or recently after the fact, but if made weeks or months thereafter, he will not be permitted, nor, if made at the recommendation (which is the case here) of one of the parties. We adopt this interpretation, and, in doing so, must reverse the judgment. In 9 Md. 1, 18, it was said, "there was no obligation on the defendant to show any defect in the preliminary proof until the plaintiff had first made out a prima 

 [*63]  facie case of compliance with the requirements of the policy." It may be, that this can be done, and, therefore, the plaintiff will be allowed, at any time, during this term, to move for a procedendo.
Judgment reversed. 

136 of 196 DOCUMENTS 

W. R. BRAILSFORD vs. JOHN WILLIAMS and JOHN A. HODGEWERF.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 150; 1860 Md. LEXIS 14 

February 24, 1860, Decided 

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

This suit was brought on the 1st of January 1857, by the appellees, trading under the firm of John Williams & Son, as endorsees and holders, against the appellant as drawer, of a bill of exchange for $ 1800.92, at thirty days, dated Charleston, S. C., June 22nd, 1854, in favor of Williams, Butler & Co., upon S. D. Tonge & Co., Baltimore Maryland, and by said Williams, Butler & Co., endorsed to the plaintiffs. It was accepted by the drawees, and at its maturity was protested for non-payment, the protest stating in regard to notice, "and on the same day I addressed written notices to the drawer and endorsers of said bill of exchange, informing them it had not been paid, payment therefor having been demanded and refused, and that they would be held responsible for the payment thereof. Which notices I left at the place of business of John H. Williams & Son." The defendant pleaded non assumpsit.

1st. Exception. The plaintiffs offered in evidence the draft and protest, the handwriting of all the parties to the draft having been admitted. They then offered to prove by S. D. Tonge, the acceptor of the draft, that on the day of the [**2]  protest he wrote a letter, the copy of which is in his letter book, and offered the same in evidence, as follows:

"Baltimore, July 25th, 1854.

Mr. W. R. BRAILSFORD, Charleston.

D'r Sir,--We regret very much to inform you that we have been compelled, owing to the prolonged pressure of the times, and the embarrassment of our friend whose name was on our paper to some extent, to suspend payment. Our acceptance of your draft for $ 1500, due this day, is the second note maturing since this dilemma was forced upon us, and it is with very great pain, that, from our inability to meet it, the same should go back upon you, ----- it here; but found it impossible to do so. Messrs. Jno. Williams & Sons, who hold this paper, have taken it out of bank, and have had it privately protested to hold the parties, so that the matter will not be public. From them it will be returned to Messrs. Williams & Son.

"Under any reasonable state of circumstances we have abundant resources to meet our liabilities, but these resources are in our factory property, and not in money, which seems now the most wanted and only available thing.

"We shall ask an extension of our creditors for twelve [**3]  months, adding interest, but are afraid that this draft, and our draft on you, due 19th Aug., for $ 562.38, may be inconvenient to you, and if it is in our power we will do whatever can be done that you may not be embarrassed. Most of the parties here who hold our paper can give us the time without much inconvenience.

"We had intended paying part of this draft, asking a receipt on account of it, but upon reflection we concluded it would be more important to you to apply all the means we have towards the placing you in funds for your acceptance above named, of $ 562.38, and as it is also held by same parties. Please let us hear from you as to how you would best like to have them arranged.

Yours, respectfully,

S. D. TONGE & Co."

In reference to the blank, in the first paragraph of the above letter, the record states: "This is from a press-copy and no impression is made of the words that should fill this blank."

The defendant objected to the admissibility in evidence of the above copy of the letter, which objection the court (LEE, J.) overruled, and to this ruling the defendant excepted.

2nd. Exception. The plaintiffs then proved by Tonge, the witness, that [**4]  he wrote this letter to the defendant upon the day of the maturity of the bill of exchange, but cannot recollect that it was mailed by him, nor does he know whether it was mailed at all; that the custom in his office is to write the letters of the house and leave them in his desk for his clerk to deposit in the post-office; that he had correspondence with him and conversation in reference to the non-payment of the drafts, and that Brailsford never complained to him that he had no notice of protest and non-payment. The defendant then asked the following instructions to the jury:

1st. That there is no legal evidence of notice to the defendant, of demand upon and non-payment of the draft in this case, shown by the protest offered in evidence by the plaintiffs.

2nd. That there is no sufficient evidence of notice of demand and non-payment given by the plaintiffs to the defendant, which will entitle them to recover in this action.

3rd. That the jury must find, from the evidence, that the plaintiffs forwarded the notice of demand and non-payment to Williams & Butler, the endorsers, at Charleston, upon the day following the maturity and protest of said draft, and that by the [**5]  day succeeding the receipt of said notice, the said Williams & Butler communicated to the defendant the notice of demand upon, and non-payment by, the acceptor.

4th. That the burthen of proof is upon the plaintiffs to show that notice was given to the defendant of the demand upon and non-payment of said draft by the acceptor, and that said notice was duly transmitted from the endorsees or their authorized agent to the endorsers at Charleston, by mail, or by a mode as expeditious, and that they communicated the same to the defendant within one day after the arrival of such notice in Charleston, or that the notice was forwarded to the defendant by the plaintiffs or their agent by the mail of the day next succeeding the protest of said draft.

5th. That the plaintiffs are not entitled to recover upon the pleadings in this case.

The court granted the first prayer and rejected all the others. To this rejection of his prayers the defendant excepted, and the the verdict and judgment being against him, appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

In an action by the endorsee against the drawer of a bill of exchange, notice of the dishonor of the bill, in due time, from the acceptor to the drawer, is sufficient to bind the latter.

Notice, by any person who is a party to the bill, or who would, on its being returned to him, and after payment, be entitled to require reimbursement, enures to the benefit of all antecedent parties, but a stranger to the bill cannot give the notice.

A letter-press copy of a letter from the acceptor to the drawer, conveying intelligence of the dishonor of the bill, is admissible in evidence and sufficient, notwithstanding a blank therein, the omitted part not appearing to have any connection with the fact of non-payment and notice, except as an excuse for the writer's failure to pay it.

In regard to the mailing of a letter, containing notice of dishonor, a witness (the acceptor) proved that he wrote the letter on the day of the maturity of the bill, but cannot recollect that it was mailed on that day, nor does he know whether it was mailed at all; that the custom in his office is, to write the letters of the house and leave them on his desk for his clerk to deposit in the post office. HELD:

That this was not sufficient evidence of the mailing of the letter; compliance with the custom was not fully proven; the clerk whose duty it was to put the letters in the post office should have been called or his absence accounted for.

The same rules which apply to banks in regard to the custom of mailing letters, and the proof of such custom, apply also to commercial houses.  

COUNSEL:
Jas. Malcolm, for the appellant, argued:

1st. That the court below erred in admitting the witness, Tonge, the acceptor [**6]  of the draft, to testify in regard to the letter written by him to the appellant, the drawer of the draft, in relation to its dishonor, and also in permitting the copy of said letter, without notice to produce the original, and mutilated, as it appears, by the blank left in it, to have been, to be read to the jury as evidence. 1st. Because Tonge was not the agent of the endorsee, the holder, to inform the acceptor of the dishonor of the draft; and 2nd, because, having written without authority, his letter was not evidence. 8 Wheat., 326, Nicholls vs. Webb. 11 Wheat., 431, Mills vs. Bank of U. S. 6 Md. Rep., 10 Atwell vs. Miller. Smith's Mercantile Law, 304, 305.

2nd. That the notice must come from the holder, or his agent, and not from a mere stranger, and though this rule is qualified to the extent that the notice will be sufficient if it comes from a party to the bill, yet this qualification is limited in this particular, viz., the notice must come from some party to the bill, who can, by receiving payment from the party notified, give him an immediate remedy on the bill. The acceptor does not hold the bill and cannot give such remedy, and notice from him is, therefore, insufficient.  [**7]  2 Camp., 177, Stewart vs. Kennett. Story on Bills, sec. 304, note 3. Byles on Bills, 163, in 16 Law Lib. 3 Wend., 179, Chanvine vs. Fowler. 14 Mass., 116, Stanton vs. Blossom. 15 Mees. & Wells, 234, Harrison vs. Ruscoe. 3 Adol. & Ellis, 193, Chapman vs. Keane.

3rd. That even if the copy of the letter from Tonge is evidence, there is no proof of its ever having been mailed. The witness proves that he had no recollection that the letter was mailed by him, or that it was mailed at all. And, although he proves it was the custom of his clerk to mail letters from his office, there is no proof, by the clerk, that he mailed the letter referred to, the clerk not having been examined. 3 G. & J., 474, Flack vs. Green.

4th. That the court erred in rejecting the prayers of the defendant, because there was no legal notice given to him of demand and non-payment by the acceptor; the burthen of proof was on the plaintiffs, to show that notice was given in due course of mail to the defendant, or if given to the endorsees by them, that notice of it was given by the endorsers to the defendant the day after the receipt of such notice. 1 Gill, 127, Whiteford vs. Burckmyer & Adams. Story on Bills,  [**8]  secs. 382, 383. Byles on Bills, 214, 219, 353, 354. 9 Grattan, 31, Friend vs. Wilkinson & Hunt.

St. Geo. W. Teackle, for the appellees, argued:

1st. That any party to a bill may give the notice, and it has been expressly decided that an acceptor may do it. The rule, as stated by Judge Story, is this: "The notice will be sufficient, although not given by the holder, or his agent, if it comes from some person who holds the bill when it is dishonored, or who is a party to the bill, or who would, on the same being returned to him, and after paying it, be entitled to require reimbursement thereof." Story on Bills, sec. 404. Chitty on Bills, 527, and cases there cited.

2nd. The press-copy of the letter from this acceptor was admissible in evidence. The rule of evidence that excludes a copy is because there is better evidence behind, but in this case there could be no better evidence than a press-copy--it is in fact a duplicate-original.

3rd. The defendant's second prayer was properly refused. If it refers to the protest, the defendant had the benefit of it by the granting of his first prayer. If it refers to the proof of mailing the letter, it could not be granted, for [**9]  the court could not say there was no sufficient evidence of notice, if there was any evidence tending to show that fact. The custom of the commercial house in which the letter was written was evidence from which the jury might infer that the letter was duly mailed. 7 Gill, 216, Bell vs. Hagerstown Bank. Again, the fact, as testified to by Tonge, that he had correspondence and conversations with the defendant in reference to the non-payment of this draft, and that the defendant never complained that he had no notice of its dishonor, is evidence from which the jury might infer he had received such notice, and especially that he had received the letter informing him of the protest. There can be no valid objection to the letter by reason of the blank in it; for it certainly gave him notice that the draft had not been paid, and had been protested.

4th. The third and fourth prayers of the defendant, if objectionable on no other ground, were certainly properly rejected for the reason that they require the jury to find notice by mail, as the only mode in which notice could be given. This is not law, for there are other modes of giving notice than by mail.  

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

OPINIONBY:
TUCK 

OPINION:

 [*156]  TUCK, J., delivered the opinion of this court.
This is an action of assumpsit by the endorsee against the drawer of a bill of exchange. The questions for consideration relate to the notice of dishonor of the bill; and these are: 1st, whether such notice, if in due time, from the acceptor to the drawer, binds the latter in an action against him? 2nd, whether the letter in this case is not sufficient, notwithstanding the imperfections of the copy? 3rd, whether there is evidence that the letter was mailed?
Treating the first of these propositions with reference to the purposes for which the law requires notice to parties to bills of exchange, there would seem to be no reason to doubt the sufficiency of notice from the acceptor. A prudent man would need no more authoritative information than a letter from the party, primarily liable, that, being due and payment demanded, the bill had been dishonored. It was once held that no party could give a valid notice, unless he was the holder at time. Tindal vs. Brown, 1 Term Rep. 167. But this doctrine after having been followed in other cases (Ex-parte, Barclay, 7 Ves. 597; [**11]  Stewart vs. Kennett, 2 Camp. 177) was expressly overruled in the case of Chapman vs. Keane, 3 Adol. & Ellis 193, (30 Eng. C. L. Rep. 69,) in which most of the previous decisions were reviewed. Nothing can be more emphatic than the language of Lord Denman, in pronouncing judgment. After referring to Tindal 

 [*157]  vs. Brown, and Ex-parte Barclay, he says: "Notwithstanding these high authorities, it is clear, from Jameson vs. Swinton, 2 Camp. 373; Wilson vs. Swabey, 1 Stark., N. P. C. 34; and also from the learned treatises on bills of exchange, that the contrary doctrine has prevailed in the profession, and we must presume a contrary practice in the commercial world. It is universally considered that the party entitled, as holder, to sue upon the bill, may avail himself of notice given in due time by any party to it. *** We are now compelled to determine whether the case of Tindal vs. Brown, as to this point, be good law. We think that it is not." This case has been so generally accepted by the profession, that we may consider the doctrine there announced as the established law. Chitty on  [**12]   Bills, 527. Story on Bills, sec. 304. Byles on Bills, 225. 15 Mees. & Welsby 231.
But it is contended here, that the notice must come from some party to the bill, who can, by receiving payment from the party notified, give him an immediate remedy on the bill, and that, as the acceptor does not hold the bill, and cannot give such remedy, the doctrine of the above case does not apply. It is true that it was so decided in Stewart vs. Kennett, 2 Camp. 177, and the same, perhaps, may be inferred from other cases; but, we cannot doubt that all such were virtually overruled by Chapman vs. Keane; as well as by other decisions. In Jameson vs. Swinton, 2 Camp. 373, where the notice was not given by the holder of the bill, but by his immediate endorser, who had received notice, the court said: "The drawer or endorser is liable to all subsequent endorsers, if he had due notice of the dishonor of the bill from any person who is a party to it. Such a notice must serve all the purposes for which the giving of notice is required. The drawer or endorser is authoritatively informed that the bill is dishonored; he is enabled to [**13]  take it up, if he pleases, and may immediately proceed against the acceptor or prior endorsers." There is, besides, express authority on the very question before us. In Shaw vs. Croft, M. S., 1793, cited in Chitty on Bills, 527, Lord Kenyon held, that notice by the acceptor to the drawer was sufficient; and the 

 [*158]  same point was ruled by Lord Ellenborough in Rosher vs. Kieran, 4 Camp. 87, where the drawer was notified by a letter from the acceptor, stating, "that he had not been able to pay it, and that it was then in the hands of the plaintiffs." We are not aware that these cases have been expressly overruled, or even questioned, except in 3 Wendell 173, Chanvine vs. Fowler, where the bill had not been accepted, and of course the point could not arise, and, on which it may be observed, that the learned judge, in quoting Chitty on Bills, has undoubtedly misstated his doctrine, by using and for or, (see page 179.) Park, B., also, in Harrison vs. Ruscoe, 15 Mees. & Welsby 231, where the question was not presented in the case before him, said, that the rule as to notice excluded notice given by [**14]  an acceptor, who never could sue himself on taking up the bill. He disposes of the cases where the point was presented and expressly decided, by adopting a suggestion in Bayley on Bills, ch. 7, sec. 2, that perhaps the acceptor had a special authority to do so. But the reports of these decisions furnish no pretence for any such supposition. They are express rulings on the very point, without any qualification, and appear to have been recognized by the elementary writers. From an examination of the question, we are of opinion, that this branch of the law-merchant is correctly stated in Chitty on Bills, 527, where it is said: "It suffices if notice be given, after the bill is dishonored, by any person who is a party to the bill, or who would, on the same being returned to him, and after paying it, be entitled to require reimbursement, and such notice will in general enure to the benefit of all the antecedent parties, and render a further notice from any of those parties unnecessary, because it makes no difference who gives the information, since the object of the notice is that the parties may have recourse to the acceptor." This, however, must be taken with the qualification, [**15]  elsewhere stated, that a stranger to the bill cannot give the notice. 2 Camp. 177. Any party may do so, by which is meant, any person whose name appears on the bill. Flack vs. Green, 3 G. & J. 474. It has been also decided (14 Mass. 116) that a drawee who has not accepted cannot notify the parties.

 [*159]  Upon the second inquiry, we are of opinion, that the letter from the acceptor to the drawer conveyed sufficient intelligence of the dishonor of the bill. The blank is clearly not the result of a design to keep back part of the letter, but owing to some defect in the letter-press copy. The part omitted does not appear to have any connection with the fact of non-payment and notice, except in excuse for the writer's failure to pay the bill. Whether we attempt to supply words for the blank, or treat the copy in evidence as a true transcript of an imperfect letter, received by the defendant with the blank in it, its effect must be the same. It was impossible for the drawer not to have known from it that the bill was unpaid, and that it had been protested by the holder for the purpose of holding the parties liable.
We think,  [**16]  however, that the evidence offered for the purpose of showing that the letter had been mailed, was not legally sufficient. The fact was to be found by the jury from the custom prevailing in the counting-room of the writer; but compliance with the custom had not been fully proved. The person whose duty it was to deposit letters in the postoffice should have been called, or his absence accounted for. A similar question arose in Bell vs. Hagerstown Bank, 7 Gill 216, where the law was fully discussed. We perceive no sufficient ground for applying different rules to banks and commercial houses. The object here is, to arrive at a particular fact, not by express proof, that the very thing was done, but by a train of circumstances from which the inference of the fact was to be drawn, and we think there ought to be no defect in the chain of evidence. The case of Flack vs. Green, 3 G. & J. 474, cannot serve the appellant, as is explained in Bell vs. Hagerstown Bank.
It follows, as the result of these views, that the letter was properly admitted in evidence; but, as there was not sufficient proof of its having been sent to the office, the second [**17]  prayer, which embraces that point, was improperly refused. The ruling of the court below on the third, fourth and fifth prayers, was also correct. The third and fourth required a 

 [*160]  mode of transmitting notice which, according to the proof, was not necessary, and, as to the fifth, there was no question on the pleadings to authorize such an instruction.
Judgment reversed and procedendo ordered. 

137 of 196 DOCUMENTS 

APPEAL OF LAURENCE THOMSON, and others, in the case of WINN & Ross vs. ALBERT & WIFE, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 268; 1860 Md. LEXIS 26 

February 24, 1860, Decided 

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

This appeal was taken on the 2nd of December 1857, by the appellants, from an order of the court below, passed on the 7th of November 1857, ratifying the auditor's account J., in the case of Winn & Ross vs. Albert & wife, et al., and directing the proceeds to be distributed according to that account, and overruling all exceptions in the cause, and all other other accounts of the auditor inconsistent with this order.

The prior proceedings and decisions in the case of Winn & Ross vs. Albert & wife, et al., will be found in the reports of the various appeals in 2 Md. Ch. Dec., 42; 7 Gill, 446; 2 Md. Ch. Dec., 169; and 5 Md. Rep., 66. The appellants are the creditors named in the schedule annexed to the deed of trust for the benefit of creditors, executed by Samuel Jones, Jr., to Wm. Winn and Jas. Ross, on the 26th of October 1846, and, by the terms of that deed, their claims amounting in the aggregate to the sum of $ 4801.33, were to be paid in full by the trustees, out of the proceeds of sale of the property thereby conveyed, as a first preference. This preference was claimed by the appellants, both under the deed and upon other [**2]  grounds, and was denied by the order appealed from.

The facts of the case and the grounds upon which the appellants assert their preference, are sufficiently stated in the reports of the cases before referred to, in the opinion of this court, and in the following opinion of the court below (KREBS, J.) delivered upon passing the order appealed from:

"These claimants, who are creditors of Samuel Jones, insist that they are entitled to be paid in full, and in preference to all other creditors of the said Jones, the amount of their respective claims, out of the insolvent estate of the said Jones, in the hands of the permanent trustees, for the benefit of his creditors, which was brought by them into the late court of Chancery, under the order of that court passed in the above cause, and which it undertook to distribute. They found their claim upon the provisions of the deed of trust, from the said Jones to the said Winn & Ross, a copy of which is filed in this cause, in which he conveys to them all his property, excepting a certain parcel, and directs them, after the payment of costs and charges attending the execution of the trust, &c., next to pay these creditors the amounts [**3]  of their respective claims. I find, upon an examination of the proceedings that had taken place in this cause before it came into this court that this deed has been declared void by the highest judicial tribunal of this State, upon an appeal from an order of Chancellor Johnson, continuing the injunction which he had granted, which order was affirmed by the appellate court. Winn & Ross, who were the trustees named in this deed thus declared void, being, as the proceedings show, in court also in the character of permanent trustees, for the benefit of the creditors of the said Jones, and submitting to administer the insolvent estate in their hands, under its jurisdiction, the chancellor proceeded to direct them to account, &c., which they have done. This action of the court in this very case before it on appeal, appears to me to present an insuperable bar to the allowance of the claims of these claimants, as preferred debts, under the terms of this deed. To do so, this court, in the further proceedings in this cause, in reference to the distribution of this fund, which these claimants have instituted, must regard this deed as valid, and still subsisting, whereas it has, in this same case,  [**4]  been declared void. Now these claimants are undoubtedly bound by this decision. It has been made in a cause in which the trustees to whom the deed for the payment of their debts was made, were parties complainants, and themselves claimants parties defendants. They were so made defendants by the supplemental bill filed by the said Winn & Ross, as permanent trustees of the said Jones, which was filed, as their petition for leave to file the same shows, because if the deed of trust should 'be inoperative for any cause, the property thereby intended to be passed, had vested in them as permanent trustees;' and it was therefore proper that they should be before the court in that capacity, and because they were 'advised that certain creditors of the said Jones, ought likewise to be made parties to this suit, in order that the matters in issue therein may be properly litigated.' The creditors referred to were those who had been preferred in this deed, viz: these very claimants; and amongst these matters in issue, was the question as to the validity of this deed. These defendants in their answer to the said supplemental bill, insist upon the validity of said deed, and pray a decree for the [**5]  payment of their respective claims, 'according to the priorities stipulated for them by its terms.' After all these proceedings, the motion to dissolve the injunction was heard, and it was upon the appeal from the chancellor's order thereon that the question, in regard to the validity of this deed of trust, was examined by the Court of Appeals, and the deed declared void. I cannot avoid the conclusive force of the point, that the other creditors of Jones, interested in resisting the preference claimed by these claimants, may make, viz: that the law of this case in regard to deeds of trust of this character has been settled by the Court of Appeals; and that this deed having been declared void by that court, these claimants can set up no right under it.

"But, assuming that the question in regard to the validity of this deed is yet open, and that these claimants have still the right to insist that it is valid, the next inquiry is, can they successfully maintain their position against the objection made by the exceptants, that it is void under the provisions of our insolvent laws? The questions presented upon this objection, arise under the 1st section of the Act of 1834, ch. 293,  [**6]  and are 1st, had Jones at the time of the execution of this deed 'no reasonable expectation of being exempted from liability, or execution for, or on account of his debts, without applying for the benefit of the insolvent laws?' and secondly, if so, had these creditors, presenting these preferred claims, 'notice of the condition of the insolvency as aforesaid of the said debtor?' In the late case in the Court of Appeals of this State, of Brooks, Trustee, &c., vs.  Thomas & Jerome, 8 Md. Rep., 367, the court says: 'A knowledge that a party is negotiating or compromising with his creditors, accompanied with the actual information that he was generally considered insolvent in his neighborhood, is, in contemplation of the Act of 1834, notice of the condition of insolvency of the debtor,' to be regarded 'as an actual notice.' It is to be observed that this deed, by which this preference to these creditors is created, is executed not immediately to them, but to trustees, for their benefit. Now, if the notice to these trustees of the condition of insolvency of Jones is sufficient to gratify the requirements of the Act of 1834, in regard to such notice, the proof that the said Winn & Ross had [**7]  notice of his condition of insolvency, is furnished by the express statements to that effect, in the several bills of complaint filed in this case, to which they are parties, both in the character of trustees under the said deed, and permanent trustees for the benefit of his creditors. If, however, it be not sufficient that this condition of insolvency was known to Winn & Ross, the trustees, but if it be indispensable that these creditors who were to have been beneficially interested under the deed, should have had notice of it, I am of opinion that there is abundant proof in the pleadings and proceedings in this case to show, that they had full knowledge of his condition of insolvency before, and at the time when, the deed was executed. This was not done until after the meeting of his creditors, referred to in the proceedings. These creditors, in their answer to the supplemental bill of Winn, Ross and others, speak of this meeting of creditors, of 'its resolutions and action,' and insist that the deed was executed in pursuance of the views of the creditors of said Jones, 'who numerously attended a called meeting of the creditors at large of the said Jones,' at which meeting, from [**8]  the manner in which these creditors in their answer detail its proceedings, it is to be inferred they were present. They there had 'knowledge that Jones was negotiating or compromising with his creditors,' and this knowledge must have been 'accompanied with the actual information to them, that 'he was generally considered insolvent,' in this community, at the time when this meeting was held, and before the deed was executed; they lived here, conducted business here, were his creditors specially interested in his affairs, and must be presumed to have had knowledge of the proceedings previously instituted by his creditors against him, for the purpose of preventing his giving preference to some of his creditors, for the very reason alleged in the bill filed by the creditors, that 'he was insolvent and unable to pay his debts, and had no reasonable expectation of protecting himself from the executions of his creditors, save only by an application for the benefit of the insolvent laws.' It appears to me then, that these creditors had the knowledge and information in regard to the dealings and arrangements of Jones with his creditors, and the opinion entertained in this community as to the [**9]  insolvent condition of his affairs at the time this deed was granted, which the Court of Appeals, in the case of Brooks, et al., vs. Jerome, et al., regard as an actual notice of the debtor's condition of insolvency, and that, therefore, this deed is not valid under the circumstances to give them a preference. There are other reasons, however, that would prevent this court from sustaining the preference that these creditors claim. They claim this right, either because--

"1. This deed provides for the payment of their claims in preference to those of the other creditors, or because--

"2. There is a usage amongst merchants in this city, which makes claims against a debtor for moneys supplied to him for the purposes of his business, without consideration, and by way of temporary loan, preferred claims against his insolvent estate.

"I am quite satisfied that if this preference is rested solely upon the provisions of this deed, directing the payment of these debts, in preference to those of other creditors, that it cannot be sustained; and that for the reason, that Jones, at the time he executed it, was, in the view of a court of equity, utterly disabled from giving a preference [**10]  to any creditor, by a transfer of property to, or in trust for him, or in any other manner.

"On the 14th of September 1846, a bill was filed in the Court of Chancery, by certain of the creditors of the said Jones, against him, in which they charged that he was hopelessly insolvent; that he had no reasonable expectation of being exempt from liability or execution for or on account of his said debts, without applying for the benefit of the insolvent laws; and that he designed and threatened to give preference to certain of his creditors, over the rest of his creditors, &c.; and in which they finally pray 'the writ of injunction against him, prohibiting him from conveying any portion of his property or effects to the favorite creditors specified in the bill, or to any other of the creditors of the said Jones, or to any one in trust for them, to secure or pay the debts due from said Jones to them, respectively, in preference to the rest of his creditors.' And thereupon the writ of injunction was issued against him as prayed by the said bill, and in its very terms forbids his securing any of his creditors. This injunction was in full force when this deed of trust was executed by Jones,  [**11]  and so far as it attempts to secure these creditors in preference to the rest of his creditors, it certainly violates that injunction. Chancellor Johnson, in his opinion delivered in this case, sustaining the injunction granted by him to restrain the execution of the decree obtained by Albert and wife, in Baltimore County court, takes precisely this view of the effect of the injunction previously granted by Chancellor Bland. In maintaining the allegations of the bill upon which that injunction was granted, he says that it charged that Jones, 'with that view and expectation, and designing to give a preference to certain of his creditors over the rest, was about to convey to Albert and wife, &c., and to others of his creditors, then unknown to the complainants,' and in stating the prayer of this bill, he says, that it 'prayed that the said Jones be enjoined from conveying to the said Albert and wife, or any other of his creditors, or to any one else in trust for them, to secure or pay the debts due from the said Jones to them, respectively, in preference to the rest of his creditors.' And Chancellor Johnson continued the injunction, for the reason, chiefly, that Jones' action in these [**12]  proceedings, in Baltimore County court, was equivalent to giving a preference to Albert and wife, which the injunction forbid. And the Court of Appeals, in its opinion upon the appeal from the Chancellor's order, says 'that by the proceedings of the 14th of September 1846,' (that is to say, the bill on which Chancellor Bland granted the injunction,) 'the Court of Chancery had drawn to itself the whole subject of Jones' insolvency, and his intent to prefer certain creditors, more particularly Albert and wife;' and 'that this injunction from chancery had interposed all the powers of that court between the parties and any avowed or contemplated intention of Jones, to secure them, or any other of his creditors,' (7 Gill, 484, 483,) and that the court sustained the chancellor's order, for the reason, also, that the proceedings in Baltimore County court violated the injunction prohibiting preferences on the part of Jones.

"The decree obtained by Albert and wife, in Baltimore County court, being rendered ineffectual for the purpose of satisfying their claim, because its execution was thus restrained by the injunction issued by Chancellor Johnson, they filed their claim, as these creditors [**13]  have done, to a preference in the payment of their debt, out of this very fund now in this court; but the chancellor rejected their claim, and the Court of Appeals affirmed his action, upon the ground that the answer of Jones filed in the proceedings in Baltimore county court, upon which they relied as a promise in writing to give them a lien upon a specific part of his estate, even if it could be regarded as having that effect, could not be used by them for that purpose, because, as the court says, 'at the date of Jones' answer, which is relied upon as securing to the appellants the preference now claimed, he was under an injunction restraining him from giving a preference in any form, or in any way;'--'under such circumstances, it is difficult to perceive how the admission of the contract in the answer can give or aid in giving the preference. Surely this admission can have no greater effect than if made by recital in a deed. And such recital could create no lien, because it would have been void by the express prohibition of the injunction.' 5 Md. Rep., 80. These claims then, if they are rested upon the provisions of this deed, executed after this injunction, for their right to a [**14]  lien, and preference in payment out of this fund, must share the fate of the claim of Albert and wife; because Jones was just as effectually restrained by the injunction from preferring these creditors, as he was from preferring Albert and wife.

"Now, in regard to the usage which has been invoked to sustain these claims as a preferred lien upon the insolvent estate of Jones, will it accomplish the object? It is manifest, from a careful examination of the bill filed by Winn & Ross, which speaks in behalf of these claims, as well as from the answers of these creditors to that bill, that their right to the preference that they claim, is rested upon the supposed existence and effect of this usage amongst merchants in this community, in regard to claims of the meritorious character which these are supposed to possess. In this particular, however, they cannot well be regarded as occupying a higher rank than the claim of Albert and wife, which has been rejected. That was for funds in the hands of Jones, in a fiduciary capacity, which he should have kept sacred from all intermixture with, or application to, his business operations.

"If it be possible for any class of business men,  [**15]  in this community, to establish amongst themselves a usage which could limit and restrict the plain import and provisions of our insolvent laws, with a view to enable an insolvent debtor to prefer some particular class of his creditors, I find no proof in this case of any such usage, at least none that can affect the parties who are excepting to the allowance of these claims. For the reasons above stated, I must pass an order sustaining the exceptions of J. Hopkins, Bro. & Co., ratifying the auditor's account, and thus reject the claims of these creditors." 

DISPOSITION:
Order affirmed, with costs.  

HEADNOTES:

Where the Court of Appeals has declared a deed of trust for the benefit of creditors "to be void, that decision is the law of the case, and must govern in all further proceedings in the same cause, notwithstanding a different decision upon a similar deed, may have been subsequently made by the court in another case.

Proof of a usage among merchants in Baltimore sanctioning preferences for claims for money lent for short periods, without security or interest, in cases of conventional arrangements between a merchant in embarrassed circumstances and his creditors, does not establish a general usage, which, per se, creates such a lien on the estate of an insolvent, as should be enforced by the court against the consent of his other creditors, and in opposition to the principles of the insolvent system.

The design of the 2nd sec. of the Act of 1825, ch. 117, in reference to appeals from decrees in equity where accounts have been stated and exceptions filed thereto, was, that the record should present to the appellate court, the same question on which the court below had decided.

Where exceptants appeal from an order overruling their exceptions to an account, because it did not allow a preference to their claims and ratifying the account, the onus is on them to show error in such order, and they can, in the appellate court, insist upon their own exceptions only, and the order cannot be reversed, unless there was error in overruling such exceptions.  

COUNSEL:
Chas. F. Mayer, for the appellants:

1st. The case of these appellants is on the bills of the 13th of January 1847, and 30th of April 1847, which sustain and press their preferences, given by the deed of trust, and no recurrence is authorized to the bill of injunction of the 14th of September 1846, certainly no dependence on it exists; and, even if there were a legitimate combination of it with the other bills, the injunction issued on it could not have weight, as the complainants in it are complainants in these two final bills, which waive the injunction, and assert that its object is attained [**16]  and office exhausted. Besides, the fact of that injunction is a consideration relative only to the complainants in the bill for the injunction, which they controlled; and relative to their option to avail of it, and not to be used by others to debar action or nullify acts. The case is before the court as on bill and answer under these bills of January and April; the answers of the appellants being thus assumed as true, and all in favor of the appellants that the bills state; and they make out the claim to preferred payment. The Chancellor's decree of the 17th of January 1849, is to govern the account in requiring it to conform to the deed of trust that grants our preference. The proof, also, makes out these claims to be preferences, and places them on the high ground sanctioned by the court in Crawfords vs. Taylor, 6 G. & J., 332, and Alexander vs. Ghiselin, 5 Gill, 138. See, also, 1 Md. Ch. Dec., 59, Sullivan vs. Tuck. 4 H. & J., 132, McMechen et al., vs. Maggs. 11 Md. Rep., 452, Triebert vs. Burgess.

2nd. The decision of the Court of Appeals in Kettlewell vs. Stewart, 8 Gill, 472, is to govern in this case, which now, for the fiust time, brings up the consideration of our right [**17]  as preferred creditors, and the validity of the deed of trust, under the statute of Elizabeth. That decision is to rule, and not the obiter dicta in 7 Gill, 446, and it sustains, unquestionably, this deed of trust. The only inquiry strictly for the court, in 7 Gill, was whether the bill of Albert and wife, on their claim against Jones, and for the ultimate object of an execution against Jones' property, was a proceeding that operated a preference and violated the injunction granted on the bill of the 14th of September 1846, and was an interference with the pre-attaching and paramount jurisdiction of the Court of Chancery, under that injunction bill. An inquiry, such as the decision collaterally, though prominently, pursues into the validity of the deed of trust, in reference to creditor rights under the statute of Elizabeth, was altogether irrelevant and obiter matter; and all thus incidentally, and therefore inoperatively, introduced, stands directly contradicted and repudiated by the decision in Kettlewell vs. Stewart.

3rd. Under the bills and pleadings, no objection lies to our preferred claims under any point, of "undue and improper preference" in regard to the insolvent laws.  [**18]  If it were applicable, yet there is no testimony to support the objection; on the contrary, the testimony is the reverse by the criterion of such "preference," fixed by the Act of 1834, ch. 293. 9 Gill, 232, Powles vs. Dilley. Ibid., 180, Malcolm vs. Hall. 7 Gill, 378, Gardner vs. Lewis. 1 Gill, 412, Cole vs. Albers & Runge. 6 Md. Rep., 88, Preston, et al., vs. Leighton. 7 Md. Rep., 177, Falconer vs. Clark. 8 Md. Rep., 367, Brooks, trustee, vs. Thomas, et al.

4th. The preferences can be impaired in the state of the case only, at furthest, so far as concerns and benefits the interests of the actual exceptants to our claims, and to the extent only to the proportion which the total of their claims bears to the aggregate of all the claims embraced in the accounts. 3 G. & J., 12, McCormick vs. Gibson.

5th. But, even to that degree, the preferences are not to be affected; because, as regards the exceptants, J. Hopkins, Brothers & Co., and Hopkins, Brothers & Co., the complainants in the bills of January and April, they are committed to the preferences, by acceding to the deed of trust and actually releasing, under it, the grantor Jones, as they aver in their bills. 7 Md. Rep.,  [**19]  272, Lanahan vs. Latrobe. 11 G. & J., 314, Moale vs. Buchanan. 4 Md. Rep., 306, Jones vs. Horsey.

G. L. Dulany, and Thos. S. Alexander, for the appellees:

1st. That the deed from Jones to Winn and Ross, of the 26th of October 1846, under which the appellants claim their preferences, was declared to be void by the decision of the Court of Appeals, on the appeal of Albert & wife vs. Winn & Ross, reported in 7 Gill, 446. That decision must be considered as the law of this case. The fact that the Court of Appeals afterwards changed their views in regard to the validity of such deeds, cannot affect this case, in which these appellants were parties, and in which the opinion was delivered declaring this very deed void.

2nd. The preference expressed in this deed was given in violation of the injunction of the Court of Chancery, issued to prevent Jones from giving preferences to particular creditors, and is, therefore, void and inoperative.

3rd. By an order passed on the 5th of March 1852, the account G is ratified. In that account it is assumed that the appellants are not entitled to the preferences now claimed, and the order, ratifying that account, must, in reference [**20]  to this claim for a preference, be treated as res adjudicata, and by it the appellants are estopped from asserting such preference. 6 Wheat., 109, Hopkins vs. Lee. 1 How., 134, Bank of U. S. vs. Beverly, et al. 11 Bligh, 185, 186, East India Co. vs. Campion.

4th. But, if the question is now open, it is insisted, that, at the time of making this deed, Jones was in a condition of insolvency contemplated by the Act of 1834, ch. 293, and this deed, as creating preferences in favor of particular creditors, is void.

5th. Nor can the claim of the appellants be sustained, upon the ground of a usage among merchants in the city of Baltimore, that money supplied to a merchant for the purposes of his business without consideration, and by way of temporary loan, is a preferred claim. The reasoning on this point, in the opinion of the court below, is conclusive.

6th. The order cannot be reversed, because a part only of the creditors excepted to account K. The appellants excepted to account J, because it did not allow their preference. This account was ratified, and the order of ratification overrules all exceptions in the cause, and all other accounts of the auditor inconsistent with [**21]  the order of ratification. From this order the appellants have taken this appeal, and, in order to reverse it, they must show they were entitled to the preferences set up in their exceptions.  

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

OPINIONBY:
ECCLESTON; BARTOL 

OPINION:

 [*280]  ECCLESTON, J., delivered the opinion of this court.
By a report filed on the 28th of November 1854, the special auditor, having shown how he ascertained the balance of estate for general distribution amongst all the creditors of Samuel Jones, Jr., proceeds with his report as follows: "He has then stated account J, between the estate of Samuel Jones, Jr., and the trustees, in which the balance, shown in hand by account H, is appropriated to the payment of dividends on all claims allowed. He has assumed, for the purposes of this account, that claims No. 29, No. 77, No. 78 and No. 115, are not entitled to the preferences insisted on by the exceptions of the claimants, filed on the eighth of March 1852. And lastly, at the instance of the solicitor for those claimants, he has stated an account K, between the estate and the trustees, in which he has allowed the full amount of claims No. 29, 77, and [**22]  78, reduced by the dividend allowed thereon by account G, and the full amount of claim No. 115, reduced by the dividend allowed thereon by account H, and the balance has been distributed amongst the remaining creditors."
On the 14th of December 1854, the following exception was filed.
"Laurence Thomson and Henry G. Jacobsen, partners, as Laurence Thomson & Co., Francis Forman, John Landstreet and Son, Charles R. Pearce, surviving partner of Birkhead & Pearce (said Birkhead having departed this life) except to the special auditor's accounts reported to this court, of the 28th of November 1854, save only the account K, so far as those accounts deny to your exceptants, as creditors of Samuel Jones, Jr., the preference granted to them for their respective claims (as described in the deed) under the deed of trust from said Jones to Winn and Ross, and they insist that said account K should be adopted, and finally confirmed by 

 [*281]  this court in behalf of the several claims of these exceptants respectively as creditors aforesaid, as acceding to them respectively the preferences aforesaid."
The day after, the court ordered, "That (except as to the preferences allowed to claims Nos. 29, 77, 78 [**23]  and 115, which preferences are hereby reserved for further consideration and order) the within account be and is hereby ratified and confirmed, and the trustees are directed to apply the fund accordingly, with a due proportion of interest received."
On the 25th of November 1855, J. Hopkins, Bro. & Co., and Hopkins, Bro. & Co., excepted to the auditor's account K, because of the preferences allowed therein to the four claims above mentioned. Similar exceptions to the same account, were filed by other creditors, on the 19th of October 1857.
After argument by counsel in relation to the auditor's report of the 28th of November 1854, the exceptions thereto, and the other proceedings, the court passed an order on the 7th of November 1857, in and by which "It is ordered, that the auditor's account J, filed as part of said report, be and the same is hereby ratified and confirmed, and the proceeds be distributed accordingly, and that all exceptions in the cause, and all other accounts of the auditor, inconsistent with this order, be and the same are hereby overruled."
From this order the present appeal has been taken by the parties, whose claims are Nos. 29, 77, 78 and 115.
In the exception [**24]  filed by these parties, on the 14th of December 1854, they base their right, to insist upon the payment of their claims in full, upon the deed of trust. Their objections to the accounts reported by the auditor are, "So far as those accounts deny to your exceptants, as creditors of Samuel Jones, Jr., the preference granted to them for their respective claims (as described in the deed) under the deed of trust from said Jones to Winn and Ross." And they insist that account K, "as acceding to them, respectively, the preferences aforesaid," should be ratified by the court.
The claim thus based upon the deed is the first point or question considered by the judge below. He mentions the 

 [*282]  fact that this deed had been declared void by the highest judicial tribunal of the State, upon the appeal from the order of the chancellor, continuing the injunction which he had granted; which order was affirmed by the Court of Appeals. He then refers to the proceedings subsequently occurring in the cause, and concludes that, as the Court of Appeals had declared the deed void, that should be regarded as the law of this case, and these claimants can set up no right under the deed. To this view [**25]  of the subject we yield our assent.
The deed being void, upon the ground stated, it is not necessary to decide whether it should be considered void under the provisions of our insolvent laws. And the proceeds of the estate of Samuel Jones, Jr., are therefore to be distributed amongst his creditors as being in the hands of his trustees in insolvency, without any regard to the deed of trust declared to be void.
Admitting the deed to be void, the appellants' counsel insists that independently of the deed, they are entitled to the preference claimed by them; because their claims are for money lent without security, for short periods and without interest; which claims, under and by virtue of a general usage among merchants in Baltimore, should be reimbursed or provided for, in preference and priority to other debts, where the debtor may prove unable to pay his debts in full.
It may be true that such usage has been acquiesced in, to the extent of sanctioning preferences of this kind, when conventional arrangements or settlements have been made, between a merchant, in embarrassed circumstances, and his creditors generally. But we have not been convinced that there is a general usage, which,  [**26]  per se, creates such a lien or preference upon the estate of an insolvent debtor, as should be enforced by the court, against the consent of his other creditors; and in opposition to the principles of the insolvent system.
Not being satisfied that there is a general usage of this description, we cannot sustain the appellants' claims, upon the ground of usage.
The counsel for the appellants has contended that, if 

 [*283]  their preferences can be impaired or reduced at all, they can only be impaired or reduced, so far as concerns and benefits the interests of those creditors, who have filed exceptions to account K, and to the extent, only, of the proportion which the total of the claims of such exceptants bears to the aggregate of all the claims embraced in the accounts. He insists that the exceptions, if sustained, cannot operate beneficially for those creditors who filed no exceptions. In support of this position, reference is made to the case of McCormick vs. Gibson, et al., 3 G. & J. 12. It was there held that the plea of limitations, by one of several defendants, would not enure to the benefit of other co-defendants, who had not put in such a plea.  [**27]  But the ruling in that case is not applicable to the question before us.
In relation to appeals from a court of equity, the 2nd section of the Act of 1825, ch. 117, provides, in reference to accounts stated and reported to such court, that "the appellant shall not be permitted to urge or insist upon any exception to any account so reported, unless it shall appear by the record that such exception was taken or made in the court from whose decree such appeal shall be made." And it is further provided that, "the Court of Appeals shall not reverse any decree on any exception which shall not appear to be taken or made as aforesaid, in the court from whose decree the appeal may be made."
The design of the Act was, that the record should present to the appellate tribunal, for revision, the same question on which the court below had decided.
It appears, from the present record, that account J was stated and reported by the auditor as the proper one to be reported by him, according to his judgment. In doing which he assumed that claims Nos. 29, 77, 78 and 115 were not entitled to the preferences insisted on by the claimants; who are the present appellants. The report of the auditor also [**28]  shows, that, at the instance of the solicitor for those claimants, he stated account K, in which the preferences claimed were allowed.
The appellants excepted to account J, because in it their 

 [*284]  preferences were not allowed. The court ratified and confirmed that account; and overruled "all exceptions in the cause, and all other accounts of the auditor," inconsistent with the order of ratification. From this the appeal has been taken.
The appellants' exception to account J, distinctly presented to the court below, the question, whether they were entitled to the preferences claimed by them? By ratifying that account, in opposition to the exception, the court certainly decided the question adversely to the claimants.
These claimants having appealed from the decision of this question, the onus of showing that the court decided erroneously, is upon them; and, in the state of case before us, the Act of 1825 only authorises them to urge or insist upon their exception. Whether there was error or not in the order of ratification, does not depend on whether exceptions to account K were filed by all, by some only, or by none of Jones' creditors. Exceptions to that account could [**29]  not more distinctly have presented the question, whether the appellants were entitled to the preferences insisted upon, than it was presented by account J, and the appellants' exception thereto.
If no exceptions had been filed by the appellees, or by any creditor of Jones, this court could not reverse the decision below, unless convinced that the court had erroneously decided the question presented by the appellants' exception to account J. And not having discovered any such error, the order appealed from will be affirmed.
It is unnecessary to decide whether, on this appeal, the chancellor's order of the 5th of March 1852, can now be revised, because, if it is open for revision, the same reasoning which has brought us to the conclusion that the order of the 7th of November 1857, ought to be affirmed, would prevent us from reversing the other.
Order affirmed, with costs.
A motion was made by the appellants for a rehearing, and, as one of the grounds not brought to the consideration of the 

 [*285]  court, and upon which they founded this motion, they respectfully submit that under the circumstances of this case, and those under which the court's revisory and overruling [**30]  opinion was pronounced in Kettlewell vs. Stewart, as to deeds of trust for creditors, such as the deed in question in this cause, that opinion superseded the opinion on the deed here, that but a few months before had been rendered, and made the decision in Kettlewell vs. Stewart, the law of this case; and that the decree to account, passed the 17th of January 1849, which declared the deed of trust to be a valid rule for the account, was revived, or left to operate, by the opinion in Kettlewell vs. Stewart having supervened, and become the law of Maryland long before any accounting took place in which there was any application of the deed of trust to the rights of any of the creditors.
The Court, per Bartol, J.--The court has considered this application, with every disposition to gratify the appellants; but the rule "that the decision of the law of a case must govern the court in all further proceedings in the same cause," has been so firmly established by the decision of the former and present Court of Appeals, that we should not feel authorized to depart from the opinion and decree heretofore filed on this appeal.
Motion overruled.
(Decided [**31]  March 16th, 1860.) 

138 of 196 DOCUMENTS 

AUGUSTUS BOULDIN, and others, vs. THE MAYOR & CITY COUNCIL OF BALTIMORE, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 18; 1860 Md. LEXIS 6 

February 7, 1860, Decided 

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

This appeal was taken from an order of the court below, (KREBS, J.,) dissolving an injunction which had been granted upon a bill filed, on the 16th of July 1857, by the appellants against the appellee. The facts of the case, so far as necessary to explain the decision now made, are stated in the opinion of this court.  

DISPOSITION:
Order reversed, injunction continued, and cause remanded.  

HEADNOTES:

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

At the hearing of a motion to dissolve upon bill, answer and proof, under the Act of 1835, ch. 380, the answer of a corporation, under its corporate seal, without oath, is not equivalent to the answer of an individual under oath, and is not such a denial of the equity of the bill as will authorise a dissolution of the injunction.

When a case is before the court upon motion to dissolve, and affidavits have been taken under the Act of 1835, the defendant is not authorised, by that Act, to rely upon the affidavits for the purpose of denying or disproving the equity stated in the bill, where his answer is not a sufficient denial of such equity.

The answer of a corporation, under its corporate seal, without oath, has the same force and effect, as evidence, as the answer of an individual, not under oath, would have in like cases, and no other or greater.

The Acts of 1852, ch. 133, and 1853, ch. 344, relating to the effect of answers, as evidence, do not, nor does either of them, apply to an answer, at the hearing of a motion to dissolve an injunction previous to a final hearing of the cause.  

COUNSEL:
R. J. Bouldin and Chas. F. Mayer for the appellants.

Geo. M. Gill for the appellees.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*19]  ECCLESTON, J., delivered the opinion of this court.
This bill was filed, by the appellants, in the Circuit Court for Baltimore city, on the 16th of July 1857, against the appellees, The Mayor & City Council of Baltimore & others; in which it is alleged the complainants are owners of certain lots of ground, binding on Bell-Air road or Bell-Air avenue, in the city of Baltimore; which lots were advertised to be sold, for the payment of assessments made thereon, under proceedings in relation to grading and paving part of Bell-Air avenue. The bill alleges that these [**2]  proceedings are illegal and void, and prays for an injunction to prohibit the sale of the lots.
Several grounds on which the complainants charge the said proceedings to be illegal and void, are set forth in the bill, but for the purposes of this case the notice of one will be sufficient, which is, that the application to pave was not signed by the proprietors or owners of a majority of the feet of ground binding and fronting on that part of Bell-Air avenue, proposed to be paved.
In the case of Holland vs. The Mayor & C. C. of Balto., et al., 11 Md. 186, this court established the doctrine that unless the owners of a majority of the feet fronting on a street to be paved, assent in writing to the paving, the proceedings of the city authorities, directing the paving to be done, are null and void, and a court of equity has, upon application of the non-assenting owners, jurisdiction to prevent, by injunction, the sale of their property to pay for such paving.
In the case before us the court granted the injunction. The answer then came in, and the defendants entered a motion to dissolve. At the instance of the complainants, the court passed an order authorizing [**3]  the parties "to take testimony in 

 [*20]  reference to the allegations of the bill," before a commissioner appointed for that purpose.
The complainants objected, in the court below, to the motion to dissolve, because the answer was without oath.
They also excepted to the answer for several reasons, which need not now be considered.
The evidence taken under the commission having been returned, the court dissolved the injunction, and the complainants appealed from the order of dissolution.
The appeal is taken from an order dissolving an injunction, upon a motion to dissolve, in a case heard upon bill, answer and proof, taken under the Act of 1835, ch. 380.
The Mayor and City Council and the other defendants, answered jointly, without oath, the seal of the corporation being thereto attached.
It thus becomes necessary to decide whether, at the hearing of such a motion, the answer of a corporation, under its corporate seal without oath, is to be regarded as equivalent to the answer of an individual under oath. Because, if not, the equity of the bill is not so denied as will authorize a dissolution of the injunction.
In Hamilton vs. Whitridge, 11 Md. 128, upon [**4]  an appeal by the defendant from an order continuing an injunction, passed on a motion to dissolve, the case was heard upon bill, answer and affidavits, under the Act of 1835, ch. 380. On page 143, the court said: "In this stage of the cause, if the bill shows a case entitling the parties to the injunction, it will not be dissolved, if the equity is not denied by the answer." It was held that the defendant had refused to answer the allegations of the bill, on a material point, and the order appealed from was affirmed.
When a case is before the court upon a motion to dissolve, and affidavits have been taken under the Act of 1835, the defendant is not authorized, by that Act, to rely upon the affidavits for the purpose of denying or disproving the equity stated in the bill, where the answer is not a sufficient denial of the equity.
If, therefore, the answer of a corporation under its corporate 

 [*21]  seal without oath, cannot be considered such a denial, the order appealed from is erroneous.
In Fulton Bank vs. N. Y. & Sharon Canal Company, 1 Paige's Ch. Rep., 311, it is said, "no dissolution of the injunction can be obtained upon the answer of a corporation, which is not [**5]  duly verified by the oath of some officer of the corporation, or other person, who is acquainted with the facts contained therein." And there the motion to dissolve was denied.
In deciding the case of Union Bank of Georgetown vs. Gearey, 5 Pet., S. C. Rep. 111, upon a final hearing the court say: "An answer in all cases, according to the course and practice of courts of chancery, must be sworn to; unless dispensed with by order of the court under special circumstances. In the present case, the answer being by a corporation, it is under their common seal, unaccompanied by an oath. And although the reason of the rule, which requires two witnesses, or circumstances to corroborate the testimony of one, to outweigh the answer, may be founded in a great measure upon the consideration that the complainant makes the answer evidence by calling for it; yet this is in reference to the ordinary practice of the court requiring the answer to be on oath. But the weight of such answer is very much lessened, if not entirely destroyed as matter of evidence, when unaccompanied by an oath; and indeed we are inclined to adopt it as a general rule, that an answer not under oath is to be considered [**6]  merely as a denial of the allegations in the bill, analogous to the general issue at law, so as to put the complainant to the proof of such allegations."
It is said by the court, in Md. & N. Y. Coal & Iron Co. vs. Wingert, 8 Gill 170, "We consider the answer and amended answer of this corporation as having the same force and effect, as evidence, as the answer of an individual, not under oath, would have in like cases, and no other or greater." Those answers were under the corporate seal of the company, attested by the president thereof. The decision was on appeal from a decree for the sale of mortgaged premises.
In our opinion, the Legislature never intended that the 

 [*22]  Acts of 1852, ch. 133, and 1853, ch. 344, or either of them, should apply to an answer, at the hearing a motion to dissolve an injunction, previous to a final hearing of the cause. We consider this a correct view in regard to the Acts of 1852 and 1853, whatever may be considered the supposed incongruity of the decision in the case of Winchester & Lemmon vs. Balto. & Susq. R. R. Co., 4 Md. 231. The question, however, is put at rest, by the 103rd section of the XVI.  [**7]  article of the code of general public law, in cases coming within the operation of the code.
Believing, as we do, that the equity of this bill has not been fully denied, by such an answer as could authorize the passage of the order appealed from, it will be reversed, the injunction continued, and the cause remanded.
Order reversed, injunction continued, and cause remanded. 

139 of 196 DOCUMENTS 

THE VISITORS and GOVERNORS of ST. JOHN'S COLLEGE vs. THE STATE of MARYLAND.--THOMAS H. HICKS, GOVERNOR.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 330; 1860 Md. LEXIS 30 

February 7, 1860, Decided 

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

By Resolution No. 4, of the Legislature of 1858, it was resolved: "That His Excellency, the Governor, be, and he is hereby authorized and required to cause such proceedings to be instituted as may be necessary to obtain the opinion of the judges of the Court of Appeals of Maryland, whether the annual appropriation made by the 19th section of the Act of 1784, chapter 37, of the sum of £  1750, current money, to be applied by the Visitors and Governors of St. John's College, to the payment of salaries, &c., constitutes a contract on the part of the State, under all the circumstances of the case, which could not be legally repealed by the Act of 1805, chapter 85, by the Legislature of this State; whether this latter Act is not in violation of the 10th section of the 1st Article of the Constitution of the United States, which declares 'that no State shall pass any law impairing the obligation of contracts;' and whether the former Act, with the circumstances of the case, constituted such a contract as would, if entered into between individual citizens be legally binding upon them; and that the result of such proceedings [**2]  be reported to the Legislature at its next session; provided, that nothing in these resolutions, or any decision under the same, shall in any manner compromise the State, or bind her by the decision of said court, or commit her to the payment of any costs or charges in settling the questions involved in the aforesaid resolutions, or to authorize the Governor to employ counsel in the discussion of the matter before said court."

In causing the necessary proceedings to be instituted under this resolution, the Governor being advised that he ought to occupy the position in court of defendant, it was agreed and arranged with the Visitors and Governors of St. John's College, that if they would file their bill, setting forth fully, in detail, the grounds of their complaint against the State, the Governor would appear to the suit and on behalf of the State answer the bill, and the bill was accordingly then filed in the court below on the 28th of May 1859.

This bill states that the Visitors and Governors of St. John's College were incorporated by the Act of November Session 1784, ch. 37; that, in the preamble to this Act, the Legislature--after reciting "that institutions for the liberal [**3]  education of youth in the principles of virtue, knowledge and useful literature, are of the highest benefit to society, in order to train up and perpetuate a succession of able and honest men for discharging the various offices and duties of life, both civil and religious, with usefulness and reputation, and that such institutions of learning have accordingly been protected and encouraged by the wisest and best regulated States,"--declares, "that it appears to this General Assembly that many public spirited individuals, from a desire to promote the founding a college on the Western Shore of this State, have subscribed and procured subscriptions to a considerable amount, and that there is reason to believe that very large additions will be obtained in the different counties of said Shore, if they were made capable in law to receive and apply the same towards founding and carrying on such college, with such plan and with such legislative assistance as the General Assembly might think fit;" and further declares, that "this General Assembly, highly approving those generous exertions of individuals, are desirous to embrace the present favorable occasion of peace and prosperity for making [**4]  lasting provision for the encouragement of all useful knowledge and literature through every part of the State;" that by the 2nd sec. of this law it is enacted, "that a college or seminary of learning, by the name of St. John's College, be established on the said Western Shore, upon the following fundamental and inviolable principles, namely: first, the said college shall be founded and maintained forever, upon the most liberal plan, for the benefit of youth of every religious denomination," &c.; secondly, that there shall be a subscription carried on in the different counties of the Western Shore, on the plan on which it hath been opened for founding the said college," &c.; thirdly, when any of the said Visitors," &c., "shall die," &c., "a quorum shall proceed to a new election to fill the vacancy," &c.; that by the 3rd sec. John Carroll and others were appointed as agents "to solicit and receive subscriptions and contributions," for the establishment of this intended college and seminary of universal learning, and that, by the same section, the subscribers of every £  1000, Maryland currency, who shall have paid or secured to be paid the same to the Treasurer of the Western Shore,  [**5]  &c., and lodged their subscription papers with him, &c., were entitled to elect one Visitor or Governor of the College; that by the 4th sec. it is declared "that when thirteen Visitors and Governors shall be chosen they shall meet and take upon them the discharge of their trust," and the thirteen Visitors and Governors are declared "one community, corporation and body politic, to have continuance forever, by the name of the Visitors and Governors of St. John's College, in the State of Maryland, and by the said name shall have perpetual succession.

The bill further states that the preliminary amount necessary to be subscribed before the organization of the college was reduced by the supplemental Act of November session 1785, ch. 2, and that the sum of £  11,000, Maryland currency, was actually subscribed and paid into the State Treasury as required by the original Act, (as appears by exhibit No. 1, filed with the bill,) whereby the subscribers became entitled to elect, and did elect, the number of Visitors and Governors required as preliminary to the vesting of the corporate privileges, powers and duties granted and declared by said Act; that being thus organized as a body corporate,  [**6]  said Visitors and Governors duly fixed upon the city of Annapolis as the proper place for establishing the college, and received and held the lot of ground in that city granted them by the 7th sec. of said Act, and on this and other adjoining lots in said city, held by them, they have erected large and extensive buildings for the better execution of the various important purposes of their incorporation, and which they now hold for the same purposes; that from the time of their original organization to the present, they have continued to exist as a corporation by the regular appointment of Visitors and Governors, as vacancies have occurred, in conformity with the Act of incorporation, and have conducted said college, from its first organization and do now conduct the same, upon the fundamental principles declared and established by said original Act and its supplements.

The bill further states that, by the 16th sec. of said charter, it was provided and enacted that, in case at any time hereafter, through oversight, or otherwise through misapprehension and mistaken construction of the powers, liberties and franchises in this charter, granted or intended to be granted, any ordinance [**7]  should be made by the said corporation of Visitors or Governors, or any matters done or transacted by the corporation contrary to the tenor thereof, although all such ordinances, acts and doings shall, in themselves, be null and void, yet they shall not, however, in any courts of law, or by the General Assembly, be deemed, taken, or interpreted, or adjudged, into an avoidance or forfeiture of this charter or Act of incorporation, but the same shall be and remain unhurt, inviolate and entire unto the said corporation of Visitors and Governors, in perpetual succession, and all their acts conformable to the powers, true intent and meaning hereof, shall remain in full force and validity, the nullity of and avoidance of such illegal acts to the contrary notwithstanding; that by the 17th sec. it was enacted that this charter shall be construed in all cases most favorably on the behalf and for the benefit and behoof of the said Visitors and Governors, and their successors, so as most effectually to answer the valuable ends of this Act of incorporation, towards the general advancement and promotion of useful knowledge, science and virtue.

The bill further states that the 19th section [**8]  of said charter is as follows: "And to provide a permanent fund for the further encouragement and establishment of the said college on the Western Shore: Be it enacted, that the sum of one thousand seven hundred and fifty pounds, current money, be annually and forever hereafter given and granted, as a donation by the public, to the use of said college on the Western Shore, to be applied by the Visitors and Governors of said college, to the payment of salaries to the principal, professors and tutors of the said college;" that "as a certain and permanent fund to procure the said sum of £  1750, current money, annually, for the use of said college," the Legislature, by the 20th, 21st, 22nd, 23rd, 24th, 25th, 26th, 27th, 28th, 29th, 30th, 31st, 32nd and 36th secs. of said original Act, provided that the sums to be received by the Treasurer of the State for marriage licenses, for fines and forfeitures, for ordinary licenses, for hawkers and pedlars licenses, &c., &c., "shall remain in his hands in every case subject to the order of the Visitors and Governors of the said college, to be drawn according to the directions of this Act;" that further, for the purpose of creating a certain and [**9]  permanent fund, to procure the said sum of £  1750, current money, annually, as declared in the 20th sec. of said Act of incorporation, certain taxes which had been before paid into the Treasury for the general purposes of the State, and also certain other taxes, by said Act then for the first time imposed, were by the 20th, 21st, 22nd, 23rd, 25th and 32nd secs. of said Act, devoted and especially appropriated and directed to remain in the hands of the Treasurer of the Western Shore, subject to the order of the Visitors and Governors of said college, to be drawn according to the directions of said Act, and the balance only, if any, was, by the 36th sec. of said charter, to remain in the Treasury of the State, subject to the disposal of the General Assembly; and the bill alleges that the sums of money received into the Treasury from the sources of revenue thus set aside and specially appropriated "to procure the said sum of £  1750," so given and granted to the said college, "as an annual and perpetual donation forever," exceeded the sum intended to be secured thereby, and that, at the present time, the amount annually paid into the Treasury from these sources does not fall short of [**10]  a quarter million of dollars.

The bill further states that from the period of the first organization of said corporation, the said sum of £  1750 was annually paid to the Visitors and Governors by the Treasurer of the Western Shore, until the year 1805, at which time that officer refused to pay the same, or any part thereof, assigning as the reason of such refusal the passage, on the 25th of January of that year, of the Act of 1805, ch. 85, which professes to repeal only the 19th section of the Act of 1704, ch. 37, by which the said annuity was, as before stated, given and granted to the said Visitors and Governors in perpetuity, and leaving the 20th, 21st, 22nd, 23rd, 25th, 32nd and 36th secs. of said law, whereby the funds raised by these sections, and thereby directed to remain in the hands of the Treasurer of the State, subject to the order of only the said Visitors and Governors, to be drawn according to the directions of the said Act, unrepealed and in full force and operation; that the Treasurer of the State continued to withhold all and every part of said donation of £  1750 from the passage of the Act of 1805, ch. 85, until the 6th of January 1812, when, under Resolution [**11]  of 1811, No. 38, he was directed to pay to the said Visitors and Governors the sum of $ 1000 annually thereafter, and which, from that time to the present, he has accordingly paid to them; that no further or other sum was paid to them until the 2nd of March 1832, when the additional sum of $ 2000 was, by Resolution of 1832, No. 41, directed to be paid, and that, from that time to the present, the said sums of $ 1000 and $ 2000 have been annually paid by the Treasurer to the said Visitors and Governors, and no other or larger payments have ever been made by the State to them; that although there was a proviso annexed requiring, in order to receive the sum of $ 2000, under the Resolution of 1832, No. 41, that the same should be accepted in full satisfaction of all legal and equitable claims which the said Visitors and Governors may have, or be supposed to have, against the State, and although the same may have been so accepted by them at that time, yet they aver and charge that the same was accepted in ignorance of their rights through oversight, or otherwise through misapprehension and mistaken construction of the powers, liberties and franchises in their charter, and is to be held [**12]  under the 16th and 17th sections especially, and under their charter generally, as utterly null and void, and they charge that the General Assembly, in their Resolution of 1858, No. 4, so regarded said acceptance.

The bill then charges that, though the said Visitors and Governors insist that the Act of 1805, ch. 85, was in violation of their vested rights, and null and void under the Constitution and laws of this State, and the Constitution of the United States, yet they are advised and so state, that this Act of 1805, ch. 85, did not, even in its terms, attempt to appropriate the said amounts of £  1750 to be retained in the Treasury for the general purposes of the State, but the same were, by the express words of the 1st section of that Act "to be and remain in the Treasury, subject to the appropriation of the Legislature to literary purposes, and for disseminating learning in the several counties in this State, and not to other or different purposes," and they charge that the same have never been appropriated, and that it would have been illegal so to have appropriated the same, and that the said annuities and the balances thereof due to the said Visitors and Governors, are [**13]  to be considered as virtually and in legal contemplation, as yet remaining "in the hands of the Treasurer, subject to the order of the said Visitors and Governors, to be drawn according to the provisions" of the said Act of 1784, ch. 37.

The bill further charges that, by reason of the subscription and payment into the Treasury of the sums specified in Exhibit No. 1, by the individuals and corporations therein named, at the solicitation of the State, through the agents appointed for that purpose by the Act of 1784, ch. 37, and upon the pledge contained in the 19th and other sections of that Act, before enumerated, that the State would pay annually forever thereafter, the sum of £  1750, current money, to be applied with said individual and corporation subscriptions to the establishment and permanent maintenance of said college, the State could not legally or constitutionally repeal the 19th section of that Act, nor revoke the said appropriation, or withhold its annual payment from the said Visitors and Governors, nor could they authorise the same to be done; that the Act of 1784, ch. 37, was in terms and effect a contract entered into by the State with the individuals and the corporations [**14]  who subscribed and paid the money thereby required, that the State would on its part, in consideration of such payment, forever annually thereafter pay to the said Visitors and Governors the sum specified in and perpetually appropriated by that Act for the permanent maintenance of said college, and that the individual and corporation subscribers would have the same right to demand the repayment to them of the money paid by them for the establishment of this college, as the State could rightfully claim to withhold the said annuity, and that the Act of 1805, ch. 85, is therefore unconstitutional and void; and that the aggregate of the annual differences between the said annuity of £  1750, appropriated to be paid by the State to the said Visitors and Governors, and the sums which they have actually received as hereinbefore stated, with interest on such differences from the times the same were withheld, is the amount which the State equitably and legally owes to them.

The bill further states, that though, by the 9th section of their charter, the said Visitors and Governors are authorised to sue in any court of this State and elsewhere, in as full and effectual a manner as any body [**15]  corporate within this State or any of the United States of America, in like cases, may or can do, yet because of the doubts entertained by some, and their want of means to carry on what may be a protracted litigation with the State, they made application to the Legislature at its last session for relief, when it passed the resolution hereinbefore referred to, under which these proceedings are authorised and have been instituted. To the end, therefore, that the said Visitors and Governors may have an account, under the direction of the court, of the aforesaid annuity, and of the balances thereof unpaid and due to them, with the interest that may accrue thereon, and that the purposes of the Legislature may be accomplished, and the opinion of the Court of Appeals obtained, as set forth in said resolution, and that the State and the Governor may further prosecute these proceedings, and that the said Visitors and Governors may have such other and further relief as their case may require, a summons is prayed against his Excellency, Thomas H. Hicks, Governor of Maryland, to appear and answer the matters and statements set forth in this bill.

The Governor, in his answer, admits that the [**16]  Visitors and Governors of St. John's College were incorporated by the Act of 1784, ch. 37, the preamble and provisions of which are, in general terms, stated in the bill. It is also admitted that by the 19th sec. of that Act the sum of £  1750 was annually and forever thereafter given and granted as a donation by the public to the use of said college, as stated in the bill, and that the sum to be subscribed by individuals and corporations was actually subscribed and paid in as required by these Acts, of which subscriptions, it is admitted, complainants' exhibit No. 1 is a copy. It is further admitted that the revenues pledged to the support of this college by the Act of 1784, including as they did nearly all the ordinary sources of revenue now relied on by the Legislature for the support of government, would amount at this day to a quarter of a million of dollars per annum.

Indeed, other proofs are not wanting of the extreme anxiety which Maryland, from the earliest period of her history, has evinced for the establishment upon the most liberal foundation of collegiate and educational institutions within her own borders. At a time when our revolutionary struggle was scarcely ended,  [**17]  when but one year had elapsed from her own accession to the articles of confederation, she passed the Act of April 1782, ch. 8, for founding a college at Chestertown. The preamble of that statute, itself an impressive memorial of her sentiments in connection with the great interests of education, recites, that "former Legislatures of this State had, according to their best abilities, laid a considerable foundation in this good work, in sundry laws for the establishment and encouragement of county schools for the study of Latin, Greek, &c., intending, as their future circumstances might permit, to engraft or raise on the foundation of said schools more extensive seminaries of learning, by erecting one or more colleges or places of universal study, not only in the learned languages, but in philosophy, divinity, law, physic, and other useful and ornamental arts and sciences." It recites further that Kent county school, in the town of Chester, had of late increased greatly by an accession of students and scholars from various parts of the Eastern Shore and the neighboring Delaware State, there being then about one hundred and forty students and scholars, and the number expected soon to [**18]  increase to at least two hundred; that sundry of the students were preparing and desirous to enter upon a course of philosophy, and must repair to some other State, at a grievous and inconvenient expense to finish their education, unless the Visitors are enabled to enlarge the plan of the said school. The Act then proceeds to incorporate the college by the name of "The Visitors and Governors of Washington College, in the State of Maryland," who were invested with the most liberal corporate powers, authorised to take and hold lands not exceeding the clear yearly value of £  6000, providing against a sectarian character being given to the institution, and exempting the salaries of the professors from all rates and taxes. Again, by the Act of November 1784, ch. 7, a permanent annual grant of £  1250 is made for the further encouragement and establishment of Washington College, and certain revenues on the Eastern Shore, now constituting the main reliance of the State for the support of government, were pledged for the security and payment of the donation. By the Act of the same session, ch. 37, St. John's College was established and endowed as already stated, the 33rd sec. whereof, after [**19]  reciting that in the opinion of the Legislature a connection between the two shores of the State would be rendered more intimate by uniformity of manners and joint efforts for the advancement of literature, under one supreme legislative and visitorial jurisdiction, enact that the said two colleges, viz., Washington College, on the Eastern Shore, and St. John's College, on the Western Shore, should be and were thereby declared one university by the name of the University of Maryland, whereof the Governor of the State for the time being should be Chancellor, and the principal of one of said colleges should be Vice-Chancellor. The Legislature seems to have taken special pains to declare that the said colleges and university should be free to youth of all religious denominations and persuasions, and that no preference should be given to principals or professors on account of their religious professions. The Act of 1785, ch. 5, sec. 3, directs that St. John's College shall always hereafter educate, board and clothe five poor boys of promising genius, to be taken from the counties of the Western Shore, so that each county shall participate in the advantages, and by ch. 39 of the same session,  [**20]  provision is made for consolidating the funds of King William's School in the city of Annapolis with the funds of St. John's College.

The answer further states, that the means thus provided by the State for an enlarged and liberal system of education within her own borders, failed to realize the beneficient results expected from them. Neither of said colleges prospered or became useful to the people of the State, except in a very limited degree, and the University of Maryland, established by the union of the two colleges, never, as this defendant is informed and believes, went into operation at all. The youth of Maryland were compelled to go abroad to acquire a knowledge of the higher branches of learning, and the Legislature, as early as the year 1798, withdrew £  500 of the donation granted to Washington College, and in 1805 discontinued the entire donations to that and St. John's College. In 1812 the Legislature conceiving that the scheme of a university, formed by the union of these two colleges, had failed of taking effect, and was then at an end, erected a new institution in the city of Baltimore, under the corporate name and style of the University of Maryland.

The [**21]  answer further states that the Legislature, after withdrawing all donations from these colleges, as before stated, considered, and had good right to consider and believe, that the State became from that time separated from the concerns of said colleges, and in no manner bound to contribute to their support, and that such was also the understanding and belief of these corporations themselves, is apparent from the course pursued afterwards by the colleges towards the State, and reciprocally by the State towards the colleges. By the Act of 1816, ch. 89, the Legislature, upon the application of Washington College, granted it the right to raise, by lottery, the sum of $ 30,000, which, by the Act of 1823, ch. 193, was enlarged to $ 80,000, for the use of that institution. So also St. John's College was, by the Act of 1821, ch. 46, authorized to raise by lottery a sum not exceeding $ 80,000, and this defendant has been informed and believes that these colleges, respectively, availed themselves of these lottery grants, and received the sums they were thereby authorized to realize therefrom. That the Visitors and Governors of St. John's College accepted from the Legislature the sum of $ 1000,  [**22]  granted to them by the Resolution of 1811, No. 38, and, afterwards, when in 1832 they made another application for aid to the Legislature, it was with the distinct understanding that it should be in full satisfaction of all legal and equitable claims which they might have, or might suppose they had, upon the State, for or by reason of any previous Act or grant of the Legislature in favor of the said college. Upon these terms, the grant of 1832 was asked by the college; upon these terms it was acceded to by the Legislature. It therefore formed a new contract between the State and the college, the terms of which were perfectly fair, well understood and regarded as final by both parties. The sum so granted has been annually paid by the State, and accepted by the complainants "in full satisfaction of all legal and equitable claim which the said Visitors and Governors might have against the State."

The answer further states that the defendant is advised that, while the charter of 1784 may be regarded as a contract between the State and the corporators, which the State could do no act to impair, yet that the grant of money in aid of the objects of the institution was merely ex gratia,  [**23]  and might be given or withheld, by the State, at her pleasure; especially after it had became apparent that the college would fail to secure to the people of the State the beneficient results expected from its establishment. He is, moreover, further advised, that the annual payment of £  1750, granted by the Act of 1784, was intended for the endowment of "The University of Maryland," which was created by that Act, and that, inasmuch as the said Act never was carried into effect, by the organization and establishment of this university, the donation which was dependent upon such organization and establishment became itself inoperative and might have been withdrawn immediately, instead of being continued to the year 1805. If, however, he is wrong in the views here presented, and in the event of its being held by this court that this donation of £  1750, did, apart from the charter, constitute a contract which the State, without the assent of the corporators, could not rescind or impair, yet he is advised it was perfectly competent for the parties, by an agreement between themselves, to change or modify this contract as circumstances might render expedient and just, and he is advised [**24]  and insists that these corporators and the State did, by agreement, modify and reform the original contract, and that the terms of their new agreement are distinctly set forth and contained in the Resolution of 1832, No. 41. He insists that this resolution was, and was in fact intended to be a compromise and final adjustment of the rights of the college and the liabilities of the State, growing out of the grant of 1784, and the subsequent legislation of the State in reference to the college. That there was no mistake of their rights on the part of said Visitors and Governors, as is alleged in their bill, and this defendant, acting for the State in this behalf, relies upon the said Resolution of 1832 as a final and conclusive settlement of the matter between the parties.

To this answer a general replication was filed by the complainants, and it was agreed that the bill, answer and replication should be presented to the court below, as upon final hearing upon bill, answer and replication, either party to be at liberty to read before that court, or in the Court of Appeals, all such acts, resolutions, reports and proceedings of the Legislature, as counsel may deem pertinent to the [**25]  case, in the same manner and to the same effect as if the same had been filed as exhibits in the cause, or proved under a commission, or otherwise introduced as evidence; and for the purpose of presenting the questions raised by the Resolution of 1858, fairly to the Court of Appeals, it was agreed that all objection to the jurisdiction of the court should be waived, but this waiver was not to commit the State further or otherwise than is expressed in said Resolution of 1858, the object being to try the case upon its merits without regard to form.

The cause having been thus submitted, the court (BREWER, J.) passed an order dismissing the bill with costs, and from this order the complainants appealed.  

HEADNOTES:

The Act of 1784, ch. 37, (the Charter of St. John's College,) recites in its preamble that many public spirited individuals, from a desire to promote the founding of a college, have subscribed and procured subscriptions, to a considerable amount, and that there is reason to believe large additions to such contributions will be obtained if a charter is granted, and that the Legislature, approving of these exertions, were desirous to embrace the then favorable occasion of peace and prosperity for making lasting provision for the encouragement and advancement of all useful knowledge and literature, through every part of the State. The Act then constitutes certain persons agents to solicit and receive subscriptions to the college, provides for the incorporation of the Visitors and Governors, to be elected by the subscribers by the name of "The Visitors and Governors of St. John's College," with power to fill vacancies in their body, and to have perpetual succession, &c., and in order to provide a permanent fund for the further encouragement and establishment of said college, it was enacted by sec. 19, that the sum of £  1750, current money, "be annually and forever hereafter given and granted as a donation by the public to the use of said College." The sum of $ 32,000 was contributed by corporations and individuals, towards the founding of this college, which was duly organised, and has ever since existed, as a corporation under the provisions of its charter. By the Act of 1805, ch. 85, the Legislature withdrew the donation of £  1750, and repealed the 19th section of this charter. HELD:

1st. That the annual appropriation of £  1750, made by the 19th sec. of the Act of 1784, ch. 37, constitutes, under all the circumstances of the case, a contract on the part of the State which could not be legally repealed by the Act of 1805, ch. 85.

2nd. That the Act of 1805, ch. 85, was a violation of the tenth section of the first Article of the Constitution of the United States, which declares that no State shall pass any law impairing the obligation of contracts.

3rd. That the Act of 1784, ch. 37, with the circumstances of the case, constitutes such a contract as would, if entered into between individual citizens, be legally binding upon them.  

COUNSEL:
Thos. G. Pratt, F. H. Stockett, and Alex. Randall, for the college, after referring to the provisions of the charter, argued:

1st. The third question propounded by the Resolution is whether, if such an instrument of writing, as this charter, had been executed by individual citizens, mutually entering into these distinct stipulations, it would be a contract legally binding upon them? Let us suppose sundry citizens unite in the common purpose of founding and carrying on a school [**26]  for the education of their children. Some having money contribute cash, to erect the buildings and purchase books; others contribute land as the site; others, having no ready money nor lands, but means to be realized hereafter, set apart these means and assign them to pay salaries of teachers and the expenses of the school as they became due. All agree upon the contributions of each, and legally transfer these respective contributions to trustees, to hold and apply the same to the common object. The land is conveyed, buildings erected, books purchased, the school commences under suitable teachers employed under the contract, but when the salaries are due, the means set apart for their payment are forcibly taken by the contributors out of the hands of the trustees and applied to other purposes, or are withheld when demanded. Here are all the essentials of a valid contract binding upon all the parties. Powell on Cont., 6. 4 G. & J., 1., Canal Case. The common transactions of insurance companies, where a party pays down a sum of money in gross for a life annuity is an apt illustration. Would such a company be heard in objecting to pay such an annuity after having received the consideration?  [**27]  The numerous authorities, referred to in the course of this argument, which assume as granted the validity of such a contract as this, render unnecessary any further references on this point.

2nd. The first question propounded by the Resolution is, whether the 19th sec. of this charter which creates this annuity of £  1750, constitutes a contract which could not be legally repealed by the Act of 1805, ch. 85? There are fundamental principles of justice acknowledged by governments and people, so universal in their application, so irresistible in their truth, and so necessary to the well being of civilized society, that they cannot be violated by States or individuals, without shocking the moral sense of all, and being looked upon as utterly inoperative. In the Regents Case, 9 G. & J., 408, the court say that independent of the Constitution of the United States and of the State, the Act of 1825, ch. 190, altering the charter of the Regents, was void, "as opposed to the fundamental principles of right and justice inherent in the nature and spirit of the social compact, (in this country at least,) the character and genius of our government, the causes from which they sprang and the [**28]  purposes for which they were established, that rises above and restrains and sets bounds to the power of legislation, which the Legislature cannot pass without exceeding its rightful authority. It is that principle which protects the life, liberty and property of the citizen from violation by the unjust exercise of legislative power." Justice Story, in 3 Com. on Cons., sec. 1393, says: "It seems to be a general principle, fortified by a strong current of judicial opinion, that since the American Revolution, no State government can be presumed to possess the transcendental sovereignty to take away vested rights of property. The fundamental maxims of free government seem to require that the rights of personal property and personal liberty should be held sacred." This case is one far exceeding in its injustice the Regents' Case. Can it be tolerated in this enlightened age, that a State, professing to be influenced by the wise and patriotic motives set forth in the preamble to this charter, shall tempt its own citizens, whom it justly describes as public spirited, and influenced by a desire to promote the founding of a college, to subscribe considerable amounts of money, with the promises [**29]  of legislative assistance, and highly approving of these generous exertions, and desirous to embrace the favorable occasion for making lasting provision for the encouragement of useful knowledge and literature, shall enact this charter, and therein to provide a permanent fund for this college, grant an annuity of £  1750 forever thereafter, and when these contributors have paid their money, founded the college and performed all required of them, and have had the college in successful operation, that then the State should withhold its annuity, violate its faith in not "carrying on" the institution, and apply the money thus consecrated to this most important purpose to the ordinary exigencies of the government?

Again, this Act of 1805 violates Art. 21 of the Bill of Rights, which declares "that no freeman ought to be taken, or imprisoned, or deprived of his freehold liberties or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the judgment of his peers, or the law of the land." The word "liberties" here used, is to be applied, with the word "privileges," to such rights as some of the citizens may enjoy by special grants to themselves,  [**30]  or to bodies corporate in which they are interested. 2 Bl. Com., 37. Sullivan's Lec., 516. 4 Jac. Law Dic., 154. But, be that as it may, this corporation is a mere artificial being; its rights, liberties and privileges are, in fact, the rights, liberties and privileges of some of the citizens, enjoyed and held through this mere creature of the law, brought into existence for the very purpose to benefit the citizens and the State, and the better to secure their rights and property by holding them in perpetuity. "The property and franchises of a corporation are private property, regarded as such by the law, and under the safeguard of the same principle that protects and preserves from legislative violation the property and rights of individuals in their natural character. The law knows no distinction; if one can be invaded, so can the other." 9 G. & J., 409. At page 412 of 9 G. & J., the court apply this 21st Art. of our Bill of Rights to show that the Act of 1825, ch. 190, was void, and so we apply it here to prove that the Act of 1805 is void, as "depriving freemen of their liberties, rights and property, without the judgment of their peers, and against the law of the land."

Another [**31]  fundamental principle of our government is violated by this Act of 1805. The annuity granted to the college by sec. 19 of the Act of 1784, is the private property of that corporation. The Act of 1805 takes this private property and appropriates it to the use of the public. This is forbidden by the 5th Art. of the amendments of the Constitution of the United States, and by sec. 46, Art. 3, of the Constitution of this State, which declares "that the Legisla ture shall enact no law authorising private property to be taken for public use, without just compensation, as agreed upon between the parties, or awarded by a jury, being first paid or tendered to the party entitled to such compensation." Though there was no such inhibition in the former Constitution of Maryland in express words, yet it was comprehended in the rights, privileges and liberties of the common law, secured to the people of Maryland by the 3rd Art. of the Declaration of Rights. This is clearly established by what has been decided in the Regent's Case, and by Judge Story in 3 Story's Com. on Cons., sec. 1784. This Act of 1805, therefore, which takes this annuity into the treasury of the State, for the public use, without [**32]  just compensation, or process of law, violates this fundamental principle of the government and is void.

These various stipulations of the charter are of mutual obligation on all the contracting parties; none can withdraw their separate contribution, nor refuse to comply with their respective stipulations. Having accepted the charter, its grants and franchises, the Visitors and Governors could be compelled by law to continue to hold and execute them accordingly. 1 Russell & Mylne, 626, Attorney General vs. Christ's Hospital. If a State should make a grant of funds in aid of a corporation, it has never been supposed it could revoke them at its pleasure. It would have no remaining authority over the corporation, but that which is judicial, to enforce the proper administration of the trust. 3 Story's Com. on Cons., secs. 1386, 1388.

3rd. The second question submitted by the resolution, is, whether this Act of 1805 is in violation of sec. 10, Art. 1, of the Constitution of the United States, which declares that no State shall pass any law impairing the obligation of contracts? We have endeavored to show that if this charter had been in the form of a contract entered into between [**33]  individuals, it would have had all the essentials of a valid contract. If we have succeeded, it would seem necessarily to follow, that so it should be a binding contract if the State be a party, and the instrument assume the form of a charter, because that form does not at all detract from the essential features of a contract, or in any manner change them; it rather adds to its force, and by clothing it in the solemn form of a law, gives it a general application and perpetuity, and secures its execution by the plighted faith of the State. "The State can contract with individuals by an act of the Legislature, and its charter granted is a contract not to reassert the rights thereby granted." 4 G. & J., 1, Canal Case. The making of an unconditional and fee-simple grant is, of itself, a surrender of all power to assume it by the State. 1 Curtis' Com., sec. 242. "It can require no argument to prove that the circumstances of this case constitute a contract. An application is made to the crown for a charter to incorporate a religious and literary institution. In the application, it is stated that large contributions have been made for the objects, which will be conferred on the corporation [**34]  as soon as it is created. The charter is granted, and, on its faith, the property is conveyed. Surely in this transaction every ingredient of a complete and legitimate contract is to be found." 4 Wheat., 518, Dartmouth College Case. "This is plainly a contract, to which the donors, the trustees and the crown, to whose rights and obligations New Hampshire succeeds, were the original parties. It is a contract made on valuable consideration. It is a contract for the security and disposition of property. It is a contract on the faith of which real and personal estate has been conveyed to the corporation. It is, then, a contract within the letter of the Constitution, and within its spirit also." 4 Wheat, 643. "Government cannot revoke a grant, even of its own funds, when given to a private person or to a corporation for special uses. It has no more remaining authority, but what is judicial, to enforce the proper administration of the trust, nor is a grant less a contract though no beneficial interest accrue to the possessor, and the decision in the Dartmouth College case did more than any other single act proceeding from the authority of the United States, to throw an impregnable barrier [**35]  around all rights and franchises derived from the grant of the government; and to give validity and inviolability to the literary, charitable and commercial institutions of our country." 1 Kent, 418. "A charter is deemed a contract, to which the government, the donors, and the trustees of the corporation, are all parties." 3 Story's Com. on Cons., sec. 1388. "This charter was for a valuable consideration, for the security and disposition of property, which was entrusted to the corporation upon the faith of its terms, and the trustees acquired rights under it which could not be taken away." 9 G. & J., 365, Regent's Case. "That a charter or act of incorporation, when accepted, is a contract, is a proposition too self-evident, and universally assented to, to be drawn in question, or to require the aid of authority or argument; there is no dictum opposed to it, to be found in the books." 9 G. & J., 402.

It is worthy of note, that in all the cases referred to, the valuable consideration contributed by the donors was far inferior to that contributed by the donors of this college. But this is not all. In those cases there was no action of the State which forcibly withheld and applied [**36]  the means of the several corporations to other and different purposes, or paid them into the State Treasury. The State merely transferred the property and franchises of the one corporation to another corporation, to be applied for the accomplishment of the same objects. But here the State actually lays hold of these funds thus appropriated by this charter to the education of her sons, and set apart for that purpose, takes them into the treasury, and applies them to the general purposes of the State.

That this charter is a contract in the sense of sec. 10, Art. 1, of the Constitution of the United States, which the State cannot impair; see, in addition to the authorities already cited, 4 Wheat., 650; 9 G. & J., 404, 405; 3 Story's Com. on Cons., sec. 1385.

The fact that there is no power to sue the State cannot change the decision upon the question submitted, whether the Act of 1805 does or not impair the obligation of this contract; for, 1st, no question is submitted by the Resolution, whether or not the contract of 1784 can be enforced against the State? Indeed, it proceeds upon the higher and more dignified assumption, that if this court should decide against the constitutionality [**37]  of the Act of 1805, the State will itself furnish the remedy to correct its own illegal and unconstitutional acts. This court has said, "it will presume that sovereign States are always ready to do that justice as to claims against them, which would be coerced by judicial process, by a citizen against a citizen." 6 G. & J., 116, Plater vs. Scott. 10 G. & J., 225, Tiernan vs. Rescaniere; 2nd, this exemption of the State from suit ought not to have any effect upon the character of the contracts protected by this clause of the Constitution of the United States, else the clause would receive its construction, not from the character of the contract, but from the remedy to enforce it, whereas all contracts, whether there be remedy to enforce them or not, are within the words of this clause, and should receive the same construction under it in every court of the United States; 3rd, there may exist a perfect obligation in contracts where there is no known or adequate means to enforce them. 3 Story's Com. on Cons., sec, 1375.

Again, the answer rather insinuates than avers, as a defence for the State, that this college has failed to realize the results expected from the means provided by [**38]  the State. But we respectfully insist, that the history of the distinguished men, educated at St. John's College, until, by the withdrawal of the State annuity, the only means provided for the payment of the salaries of the professors, these professors could no longer be employed, will clearly show that the college did fulfil all that was expected of her, and we cannot but remark that it surely does not become the State, after failing to execute its part of this contract, and by that failure preventing the college from continuing to realize the sanguine hopes of its founders, to defend itself from the charge of violating its faith by holding up the very consequences which necessarily flowed from this violation. But if the charge be true, it is no legal defence for the course of the State, for if so the contributors can claim that their money should be returned, if they conceive that their expectations have not been realized, and thus all such corporations may be practically dissolved whenever those who contributed the means to establish them believe they do not gratify their expectations. In all such cases, if the corporation has failed to accomplish the end designed, and a forfeiture [**39]  of the charter be incurred, the only remedy to the State is to have that issue so decided, and the charter forfeited by a judicial tribunal, and no authority exists in the Legislature to execute these judicial powers. 4 G. & J., 1, Canal Case. 10 G. & J., 356, Planters Bank vs. Bank of Alexandria. 9 G. & J., 411, 416, Regents' Case. Angell & Ames on Corp., 266, 510. But if the acts complained of would, in other corporations, be sufficient cause of forfeiture, when legally proceeded against for that purpose, they would have no such effect here, under the 16th and 17th secs. of this charter, which declare that "any matters done and transacted by the corporation contrary to the tenor hereof" (its charter) "shall be null and void," and shall not "be an avoidance or forfeiture of the charter, but that the same shall, notwithstanding, remain unhurt, inviolate and entire," and that the charter shall be construed in all cases most favorably for the college, so as most effectually to answer the valuable ends of the Act of incorporation. See also 9 G. & J., 423.

It is also said, in defence, that the State cannot be sued upon this charter for the annuity, and therefore it is not such a contract [**40]  as the State is prohibited from passing any law to impair. Though the authorities, before cited, maintain that such State contracts are comprehended in this inhibition of the Constitution of the United States, whether by the laws of the State these contracts are capable of being enforced against the State or not, yet we insist the college has a remedy according to the law in this State. By the terms of the charter the annuity of £  1750 is a perpetual grant to be applied to an ever continuing demand. To provide a permanent fund to raise this annuity, certain taxes are to be levied, as directed by secs. 20, 21, 22, 23, 24, 25 and 32, and are to be paid to the Treasurer, to remain in his hands subject to the order of the Visitors and Governors of the college. These funds are thus set apart, and by the law actually appropriated for the payment of this annuity, and none of these sections are repealed. By sec. 5, the Visitors and Governors may call for and receive from the Treasurer any money which may come to his hands for founding and carrying on the college, and by sec. 36, the balance only, if any, of the proceeds of these taxes is subject to the disposal of the General Assembly. Here,  [**41]  then, is not the promise merely of the annuity, not only the plighted faith of the State to pay it, but in fact the actual, absolute, appropriation, transfer and assignment of the money. It is admitted that the Treasurer now has in his hands, of this very fund, ample means to pay this annuity and all its arrearages. It is, therefore, in legal contemplation, remaining in the hands of the Treasurer, subject to the order of the Visitors and Governors, and his duty to pay it is merely ministerial. This then is a case in which the courts will compel its payment by mandamus. 4 Md. Rep., 226, 230, Thomas vs. Owens, and cases there cited. 9 Md. Rep., 98, Harwood vs. Marshall. 12 Pet., 524, Kendall vs. Stokes. 12 Md. Rep., 335, Green vs. Purnell.

But, it is said, the Legislature may not have power to repeal the charter, but it can repeal the 19th sec., granting this annuity, and a distinction is taken between the repeal of the charter and the repeal of this grant. Is not this 19th sec. a part of the charter? If this part can be repealed, why not any other, and why not the whole? Surely if the chartered franchises of a corporation cannot be taken away by the Legislature, the annuity, without [**42]  which these franchises would be useless, cannot be so taken away. In the cases cited, it is conceded the Legislature cannot take away grants of land or property to a corporation, and from that concession is made the deduction, by the courts, that the franchises, because in the nature of property, cannot be taken away or impaired by the Legislature. Where a law is, in its nature, a contract, and when absolute rights are vested under that contract, a repeal of that law cannot divest these rights. 3 Story's Com. on Cons., sec. 1385. 1 Curtis Com., sec. 253. The government cannot resume its gift, once absolutely made, to a private person, neither can it resume a like gift to a private corporation. It may reserve such a power in express words. 1 Sumner, 299, Allen vs. McKeen. 3 Story's Com. on Cons., sec. 1371. In 4 Wheat., 598, Judge Story says: "The truth is that the government has no power to revoke a grant, even of its own funds, when given to a private person, or to a corporation, for special uses. It cannot recall its own endowments granted to any hospital, or college, or city, or town, for the use of such corporation. See, also, 15 B. Munroe, 642, Louisville vs. University, &c. 4 [**43]  G. & J., 146. 7 G. & J., 7, Abingdon Academy Case. 8 Wheat., 1, Green vs. Biddle. 2 Fairfield, 118, Trustees of New Gloucester School vs. Bradbury. 1 Curtis' Com., sec. 239. 6 Gill, 288, Mayor & C. C. of Balto. vs. Balto. & Ohio Railroad Co. The whole charter is one entire contract, though consisting of various separate stipulations of the different parties, all constituting one complete system, and no part thereof can be altered or superseded by any of the parties. 11 G. & J., 149, Stansbury vs. Fringer. 6 Md. Rep., 129, Gittings vs. Mayhew. How idle to give the Visitors and Governors the power of appointing a principal, professors and tutors, if the Legislature can deprive them of the means of support by the repeal of the annuity, the only means provided for that purpose in the charter. How idle all the various provisions imposing taxes to pay this annuity, and setting the proceeds of these taxes apart for that purpose, if the Legislature could pass a law repealing the annuity. It is apparent that the right contended for to repeal this annuity, necessarily involves the right to nullify all the important provisions of the charter, and the admission that the charter cannot be changed [**44]  requires the conclusion that the annuity cannot be repealed.

The defence, that the obligation to pay this annuity was released, because the University, proposed to be made of the two colleges, by secs. 33, 34 and 35, was never established, cannot avail the State; 1st, because this annuity and all grants by donors, and all the franchises were granted to the college alone, absolutely and independently of this mere potentional corporation--the university--which these sections assume may never have any actual existence, and all these grants were actually vested in the college, and are assumed by the charter to be so vested before the university can have any existence; 2nd, the purpose to be accomplished by the creation of this university was to increase the connection between the two shores of the State, by uniformity of manners and joint efforts for the advancement of literature, not the divesting of the means of the colleges, for which no authority whatever is given in the charter; 3rd, by sec. 34, the by-laws of this university, if it ever shall be created, shall receive the "mutual consent, advice and authority of the two colleges" before they are valid, and then only provided [**45]  they do not "in any manner abridge or destroy the separate and distinct rights, franchises and immunities of either of said colleges," as granted in their charters. How strange then, in the absence of any such provision, is the conclusion, that the failure to call into existence this university, which they were not required to create, would forfeit or abridge the rights of the colleges?

The answer appears to rely upon the lottery grant as, in some measure, having relieved the State from its obligation to pay this annuity. But this grant, however, can have no such effect as to release the State from any of its obligations to the college. Indeed it rather enforces them by showing that the college stood in need of this aid, and that the State considered it worthy of the assistance thereby granted. But it is quite sufficient to reply that the State did not claim in any of these acts, granting lotteries to the colleges, that they were intended to release the State from the chartered obligations it was under to them. They were granted to the colleges as a gratuity, costing the State nothing. It was certainly not an endowment. 9 G. & J., 397.

But it is said that by the Resolution [**46]  of 1832, and its acceptance by the Visitors and Governors of the college, all claims against the State, under this charter, are released, no matter how inoperative may be the Act of 1805. In reply to this we purpose to maintain these positions:

1st. That the point here made by the State has not been submitted, by the Resolution of 1858, to the judges for their opinion, and, therefore, will not be considered by them.

2nd. That, as this charter contains no express provision authorizing the State to withdraw or diminish this annuity, or the Visitors and Governors to release it, or any part of it, all such acts of the State, proposing to withdraw or diminish it, and all acts of the Visitors and Governors assenting to them, or purporting to release the State from the payment of the annuity or its arrearages, are inoperative and void.

3rd. That this charter, in its very language, makes this annuity perpetual, and, therefore, incapable of being repealed, and expressly denies to the Visitors and Governors any power to do any act "contrary to the tenor" of the charter, or "in any manner to abridge or destroy its rights, franchises or immunities," and all such acts are declared [**47]  to be in themselves null and void, and that the charter "shall be and remain unhurt, inviolate and entire," notwithstand-such void acts.

1st. The Legislature of 1858 well knew that the trustees in 1832 found the institution in a languishing condition, for the want of this very annuity which the State had pledged itself forever to contribute, that they believed they were without the means of compelling the State to do them justice, and that they were obliged to submit, from necessity, to the strong arm of the State, and that under these circumstances, in order to preserve to the public some of the benefits of the institution, and relying on the return of wise counsels and just views, on the part of the State, they accepted this small part of their dues, rather than continue to have the whole withheld. We must therefore conclude, that the Legislature, in 1858, rejected all idea of allowing this Resolution of 1832, and the release under it, to stand in the way of rendering ample justice to the college should the judges decide the questions submitted in its favor. The belief that the acceptance, in 1832, of an annuity of $ 1667 less than that secured by the charter, and the release [**48]  to the State, without consideration, of the large amounts of arrearages of this annuity then due, were the effects of compulsion, of mere duress in their needy condition, must have been universal. Such a release, executed too by mere agents, under such circumstances, no court of law would sanction, and any court of equity would set aside. Whatever, therefore, may be the effect of this Resolution and release, the Legislature never intended they should be brought up in judgment against the college in the case now submitted to the judges, and, therefore, it was not among the questions submitted for their opinion. But as it has been urged upon the judges by the counsel for the State, and may be considered within the scope of the questions submitted, we proceed to consider the effect of that resolution and release.

2nd. The argument assumes that the Act of 1805 was void, for the reasons before stated, and that before 1832 there was no pretence of any assent on the part of the Visitors and Governors to that Act, so that there was due them, when the Resolution of 1832 passed, about $ 100,000 of arrearages, and the annuity of $ 4667 was, in legal contemplation, continuing. That Resolution [**49]  then purposed to pay them an annuity of $ 2000, in addition to the $ 1000, if they would relinquish the annuity of $ 4667 and the $ 100,000 of arrearages. The State having granted this annuity, without reserving any right whatever to recall or withhold it, can have no such power ever thereafter to do so. 1 Sumner, 299, 300. 3 Story's Com. on Cons., secs 1385 to 1391. 7 G. & J., 7. 9 G. & J., 365. The very perpetuity of the object to which the annuity was to be applied, required there should be no right to withhold it. The mutuality of the contributions of all other donors required it. The Visitors and Governors are the mere agents for the founders, the State and the public, to accomplish certain specified objects set forth in the charter, by the use of the means thereby placed under their control. They have not the power to execute any other objects, or to misapply or release these funds from the objects specified, and among their most important duties is to receive this annuity, from the State Treasurer, forever, and faithfully apply it to the payment of the salaries of the principal, professors and tutors, which duty they had undertaken to perform, and it would be as much a breach [**50]  of trust in them to release the payment of any part of it, as to apply it to any other object. There being no authority granted to them to receive less than the whole, or to release the State from the payment of the entire amount, any such acts of theirs would be beyond the scope of their powers, and void. It is a vital principle of a corporate body, that the members can do no act which may destroy or injure its privileges. 9 G. & J., 418. Angell & Ames on Corp., 233, 234, 237. Grant on Corp., 136. Corporations are not only incapable of making contracts which are forbidden by their charter, but in general they can make none which are not necessarily, either directly or indirectly, to effect the objects of their creation. 8 G. & J., 248, Steam Co. vs. Dandridge. 1 Md. Ch. Dec. 407, Albert vs. Savings Bank. Ibid., 542, Abbott vs. Steam Packet Co. But, suppose the trustees to have the visitatorial powers over this corporation, which their corporate name seems to imply, yet are the provisions of the charter quite as obligatory upon them, as where that power exists in any other body. In Allen vs. McKeen, 1 Sumner, 300, 305, Judge Story, in speaking of this power, says: "Is it a power to [**51]  revoke the gift, to change its uses, to divest the rights of the parties entitled to the bounty? Certainly not. It is a mere power to control and to arrest abuses, and to enforce a due observance of the statutes, of the charity." "The founder has a right to have the statutes of his foundation as to the powers of the trustees, strictly adhered to, except so far as he has consented to any alteration of them."

3rd. The charter, in its very terms, is made perpetual, and its 16th and 34th secs. expressly deny to the Visitors and Governors the power to do any act "contrary to the tenor hereof," or "in any manner to abridge or destroy its rights, franchises and immunities," and all such acts are declared to be in themselves void, but still it is carefully provided, that the charter "shall be and remain unhurt, inviolate and entire," notwithstanding such void acts. The many clauses in the charter which declare it to be "lasting," "permanent," "to be maintained forever," and the words of the grant of this annuity, that it shall be "forever hereafter given and granted as donation to the public," &c., all clearly show that this annuity was never intended to be within the control of the Legislature.  [**52]  The object, too, to which this annuity was to be applied, as stated in the charter, required that it should be perpetual. It was to pay the "salaries of the principal, professors and tutors," whose duties were never to cease, for they were required "to train up and perpetuate a succession of able men," &c. Thus we see the language of this charter was absolute and perpetual; its grants by the donors, the founders, who paid into the Treasury the $ 32,000, were also absolute and irrevocable, and the great ends and purposes of the charter could be accomplished only by this annuity being perpetual. Now, what would be the effects of this Resolution of 1832? 1st. It would reduce that annuity to $ 3000 instead of $ 4667, although the charter declares none of these rights, franchises or immunities shall be abridged. 2nd. It would abandon all the arrearages of the annuity, amounting to about $ 100,000. 3rd. It would leave that annuity under the control of the Visitors and Governors for any purpose they may select, whereas the charter had required it to be paid to the salaries of the principal, professors and tutors. 4th. It would leave this annuity, which the charter had made perpetual, merely [**53]  temporary, liable to the disposal of the Legislature whenever they chose; even the year after this Resolution of 1832 was passed, and the execution of the release under it, the Legislature might repeal that resolution without doing any violence to its language. It is vain to tell us such an act of gross injustice, after receiving the release, cannot be predicated of such a body as the Legislature of Maryland, when we have in the Act of 1805, and in the very circumstances attending the passage of that resolution, an instance of the perpetration of this very act of gross injustice. It will be idle to attempt in future to prevent the violation of rights, franchises and property, guaranteed by the provisions of a charter, if this Act of 1805 and Resolution of 1832 can be sustained.

Again, this alteration of the charter is to be made without the assent of the donors, the founders of the college, those who contributed the $ 32,000 to establish it under the charter at the instance of the Legislature. We have shown by the highest authority that this charter is a contract between these donors, the State and the Visitors and Governors. Surely it requires all the parties who made the contract [**54]  to agree and unite to annul or change its provisions; especially so to change them as to release one of the parties, the State, from the payment of its part of the contract, which was the only means provided in the charter for carrying on the college, after the money of the donors had founded it, according to the stipulations of the charter. In the contemplated legislative changes of charters, provision is always made for the consent of the stockholders, founders, &c., before such changes take effect. No such assent of the donors or founders is provided for, and none such has ever been given. Acts of Assembly altering the charters of railroad and canal companies require this assent of the stockholders. 10 G. & J., 346, Planters Bank vs. Bank of Alexandria. It is worthy of note that this Resolution of 1832 does not require assent to the Act of 1805, nor refer to that Act at all, nor does that Act require any such assent of the Visitors and Governors, nor has it ever, to this day, received any such assent, nor does this resolution refer to any specific claims which they have against the State. It must, therefore, be construed to comprehend only such claims as the Legislature had the [**55]  power to call upon them to release, and as they had power to release. If there was no power in the Legislature, or the Visitors and Governors, to combine together, to diminish or release this annuity, the court will construe that resolution and release to apply to other claims which may have existed and could legally be so released.

Again, the resolution and release assume that there are claims held by the college against the State. Now, if these claims continued to be held under the charter, then the Act of 1805 is ineffectual to repeal them, and they still existed when the resolution was passed. The effect, therefore, claimed for the resolution is, to change the existing law of 1784, forever appropriating this annuity. In other words, whereas the law of 1784 forever appropriates $ 4667 to be paid to the Visitors and Governors of this college, "for the payment of the salaries of the principal, professors and tutors" of the college, now this resolution proposes to reduce it to the sum of $ 3000, to make that sum a mere temporary or annual appropriation, and to pay it to the Visitors and Governors, without any limitation or restriction as to its application. Thus then this Resolution [**56]  proposes to repeal the law--the charter--in these various provisions. Could it be done under the Constitution of the State as it existed at that time? We think not. The existing laws of the State can be repealed only by laws, passed in the form of laws, under the Constitution: "Be it enacted by the General Assembly of Maryland," is the style of all laws, prescribed by Art. 57 of the Constitution. The House in which the laws are to originate, the form they are to assume in passing the Legislature, in being engrossed, how to be certified, signed, sealed, printed and published, are all specially provided for in secs. 10, 11, 57 and 60 of the former Constitution, which sections do not apply to resolutions. Laws never are in the form of resolutions, nor can the repeal of a law assume any such form. The language of laws is, "to enact," "to amend," "to forbid," not "to resolve." "Facts, principles, and their own opinions and purposes, are expressed in the forms of resolutions by Legislatures." Jefferson's Manual, 46. In State vs. Delesdenier, 7 Texas, 94, this distinction between a resolution and a law came before the court for its consideration, though the point was not decided, The assent [**57]  of the Visitors and Governors, if they had the power to give it, could not confer this power upon the Legislature, or render such a resolution operative to repeal a law of the State. Suppose a resolution, professing to repeal a part of the criminal code, and to punish the offence differently, could the assent of the party accused of the offence give effect to any such resolution, and authorize the court to punish under it? Consent cannot give jurisdiction is a legal maxim. We conclude, therefore, that if the Legislature had the power to repeal the Act of 1784, or any part of it, it could be effected only by a law duly passed, and that this resolution is void for any such purpose, and that any release, executed by the Visitors and Governors under it, is also void, even if they had the authority to do so.

We have shown there never was any assent required to the Act of 1805, nor was any pretended to be given to it before the Resolution of 1832. We now propose to show by authority, that the receiving the $ 2000 given by that resolution and the execution of the release by the Visitors and Governors to the State, and their subsequent release or acquiescence cannot deprive them of the [**58]  annuity secured by the charter, nor of the arrearages due therefor. The case of Allen vs. McKeen, 1 Sumner, 277, was like this. In that case it was said that Bowdoin College acquiesced in an Act of the Legislature of Maine, which it afterwards resisted on the ground that the Act violated the Constitution of the United States, by altering the charter of the college and thereby impairing the obligation of the contract. Judge Story says: "I think the argument is not correct; they have merely acquiesced in it--a mere submission to the legislative authority--a course that might be very naturally adopted, to avoid collision with the Legislature, and as a respectful appeal to the future revision of the Act by the Legislature itself. But if this acquiescence could be construed into approval, which, I think, it ought not to be, still that approval cannot give effect to an unconstitutional Act. The Legislature and the Boards are not the only parties in interest upon such constitutional questions. The people have a deep interest in maintaining all the constitutional limitations upon the exercise of legislative powers; and no private arrangements between such parties can supersede them." This [**59]  decision is approved of in the Regents' Case, in 9 G. & J., 419. The court say on this subject, "no acquiescence of any corporation can cure a defect arising from the unconstitutionality of the law." "The most that can be said of it is, that the individual members," (of the old corporation,) "who occupied places under the trustees, wanted situations which they were afraid of losing, and acted alone under that impulse." "It was an unwilling submission only to legislative power and influence, and not an adoption of its act." "It may well be questioned" (say the court at page 416,) "whether, and indeed it is difficult to perceive how, an unconstitutional Act of the Legislature can be made constitutional and valid, by a subsequent acquiescence in it. The whole community have an interest in preserving the constitutional limitations of legislative power. How can the subsequent approval of, or assent to it, give to the Legislature a power which it did not possess at the time it was passed? and if it cannot, how can it give effect to the Act itself, which was passed without authority?" In each of the cases from which these extracts are taken, there were acts done by the corporations from which [**60]  there were stronger reasons for concluding that they had assented to, and acquiesced in, the unconstitutional Acts of the Legislature complained of, than in the present case.

Although we cannot conclude this argument without expressing the hope that the questions now submitted to the judges will be so decided as eventually to be the means of restoring to St. John's--this ancient seat of learning--more than its former reputation, and to enable it to realize all the sanguine anticipations of its revolutionary and patriotic founders, and bless our State with an institution of learning coextensive with her wants, and worthy of her wealth and people, yet we are free to say that there are other questions involved in this decision paramount in importance to these considerations. "One great inducement to these gifts," (founding colleges,) says Ch. J. Marshall, in the Dartmouth College Case, 4 Wheat., 647, "is the conviction felt by the giver that the disposition he makes is immutable. It is probable no man ever was, or ever will be, the founder of a college, believing at the time that an act of incorporation constitutes no security for the institution." Shall this inducement cease? If [**61]  so, then will there be a shock to that philanthropic spirit which, in modern times, has founded the Smithsonian Institute, the Peabody Institute, the Agricultural College and other similar institutions, which cannot be too strongly deprecated or too deeply deplored. All property held under chartered rights--all property held under constitutional rights, are, more or less, involved in it. Let it be once tolerated in this State, that an Act and Resolution of the Legislature, such as are here resisted, can be passed, and the State and corporation allowed to execute them, and there will be an end to the security of the millions of property now held under charters in this State, and, what is still more to be deplored, the Constitutions of the State and of the United States will be successfully resisted. The judges, in this case, can have no such anxious apprehensions as those expressed by the courts in the Dartmouth College and Regents' Cases, in declaring this legislation unconstitutional, because the Legislature itself has voluntarily submitted to them these questions, in order that it may be guided thereby. There is no antagonism here. The State stands ready, as do the other parties--the [**62]  donors and the Visitors and Governors--to maintain all the provisions of the charter, deeply interested in the faithful execution of them all, in order to accomplish its declared object: "The liberal education of youth in the principles of virtue, knowledge and useful literature, as the highest benefit to society"

Wm. Price for the State:

That a State can pass no law impairing the obligation of a contract, no one will deny. That the charter of St. John's College is a contract which the State could not impair, is also freely admitted, but that the donation of £  1750, made by the Act of 1784, is a contract which could not be impaired, and that the State, having once granted the annuity, is bound to pay it annually forever, is altogether denied. The distinction between the charter and the donation is a very plain one, as I shall show.

The case is simply this: the State guaranteed £  1750 to the College, to be paid by the State annually forever; suppose she refuses, how is she to be compelled to pay? The whole case lies in this one question. The donation, under the circumstances, might be binding upon an individual, but how can that be binding upon the State which cannot [**63]  be enforced against the State? You cannot impair an obligation where there is no obligation to impair. It is for the very reason that the State cannot be sued, and the contract enforced against her, that the inhibition of the Federal Constitution cannot apply to the case. For when it is said that a State shall pass no law impairing the obligation of a contract, a contract of perfect or legal obligation must be intended. But the promise to pay this £  1750 annuity was merely ex gratia. It must have been so considered on all sides, because it was known from the first that if the State should afterwards choose not to pay, there was no power any where to compel her to pay. It was what ethical writers call a promise of imperfect obligation--a promise which the party making may respect or not, as he pleases.

The State cannot be sued because she is a sovereign. 2 Eng. Eccl. Rep., 112. It may be asked, why is a charter such a contract as the State may not impair, and a promise of the State to pay an annuity such an undertaking as it may impair? The answer has already been given. The State can be compelled to perform the one while she cannot be compelled to perform the other. A charter [**64]  operates to vest the franchise in the corporators and their successors, and if the State shall attempt to repeal the charter, the courts lay their hands upon the repealing law and declare it void. The result of which is, that the corporators remain in quiet possession of their chartered privileges, and in this way the State is compelled to perform her contract implied in the granting of the charter. She is compelled by the simple process of staying her hands, when she would resume the rights granted by the charter. But in regard to a grant of money by the State, and especially a grant of an annual payment by her, if she refuses, how is the promise to be enforced? The act of compulsion implies a power to coerce, first, the Legislature to levy the tax, next, to collect it from the people, next, to bring it into the treasury, and last of all to pass the appropriation to pay it out. The refusal to perform any one of these steps in the process defeats the donation. And suppose there is a refusal in toto, what are you to do? The answer is, you can do nothing. You cannot sue the State, and get a judgment, and if you could, what are you to do with the judgment? This view of the subject is [**65]  so obvious and so conclusive, that I scarcely deem it necessary to refer to authorities to support it. If authority should be wanting, I may refer to 3 Story's Com. on Cons., sec. 1374, where it is said, "that when the obligation of contracts is spoken of in the Constitution, we are to understand not the mere moral but the legal obligation of contracts. The moral obligation of contracts is, so far as human society is concerned, of an imperfect kind, which the parties are left free to obey or not, as they please." The injury which a law impairing the obligation of a contract inflicts, is, in preventing the party from resorting to the law for the recovery of his rights. If, then, it be a case in which the law affords him no remedy, he is not injured--his contract is not impaired.

It must not be understood, however, that in relieving the State from the legal, I have intended to place her under a moral obligation to pay this money, and there to leave her. Far from it. If she is morally bound to pay the annuity, I say, for one, let her pay it. Her good faith--her honor--is too sacred to be compromised for money, large though the sum may be. I am to show, therefore, and I do it as a [**66]  matter of duty, that the State is under no obligation of any kind, legal or moral, perfect or imperfect, to pay this annual donation. This college has no claim upon her, legal, moral or equitable. The promise of the State, originally, was upon conditions which have never been performed. That promise, if put into words, would read thus: "I give you this money, that with it you may establish a university which shall forever hereafter be renowned for the science, the scholarship, and the literary distinction of its appointments; it shall be a seat of learning in which degrees shall be conferred in any of the faculties, arts and sciences, and liberal professions, to which persons are usually admitted in other colleges or universities in America or Europe. The Governor of the State shall be the chancellor of the institution, to seal the diplomas and give dignity to the degrees of the graduates. I give you this annuity, and allow you to hold estates of the annual value of £  9000 or $ 24,000, besides, in order if you fail to realize the design of your institution, the want of means shall not be alleged as the excuse for such failure." These were the stipulations distinctly announced in the [**67]  charter as forming the conditions of the grant of this annuity. The money was paid from 1784 to 1805, a period of twenty-one years, upon these conditions, and yet not one of them ever was performed. No university was established--the Governor never sat as chancellor. The youth of Maryland have been compelled to go abroad for those means of obtaining an accomplished education which, from the munificence of their own State, they were entitled to expect at home. The Legislature made ample provision for the endowment of a college of the first class. The State surrendered her own revenues to accomplish an object which she had so much at heart, and received nothing in return but disappointment. The wonder is, that she paid up as long as she did. Certainly, in view of such a history as this, it cannot be said that she has acted in bad faith. If the conditions upon which the donation was made had been performed, the donation would have been continued, but as they were not performed it was withdrawn. This was right and just, and no one can have good cause to complain against her. Massachusetts has her university. All her youth are now, and have been for a century, educated at Harvard. Her public [**68]  men, her professional men, her literary men, and her leading mercantile men, were school-fellows and class-mates, and, it may be, room-mates and bed-fellows, when they were boys. They grew up together like members of the same family. If a candidate is proposed for office in Massachusetts, there are men who know him intimately throughout the State. They have measured and guaged him, and know his stature and his calibre. If a man is required for any special public duty, the whole State knows where to find him--the very man to suit the position can be named at once. New Hampshire has her university, with the same beneficial results flowing from it. Connecticut has hers. Virginia has her university, which is of a date more recent than the others, but in time her educated classes will be bound and cemented together by the same ties and recollections as in Massachusetts. Maryland strove hard to secure to her people the same privileges and blessings, but was disappointed. She was willing to pay for them--did pay for them--but failed to realize them. Is she to pay for them over again and still not have them? She would be willing, no doubt, to pay for them now, if she could only get them when [**69]  paid for. I think it very clear, therefore, that the State, being under no legal obligation to pay this annuity, was equally free from any obligation, in morals or conscience, to pay it.

But suppose she was both legally and morally bound to pay; suppose she had given her bond, under her great seal, for the whole amount, then I say she has settled and compensated, and paid to the last dollar, which the college had the slightest claim or right to ask from her. I will succinctly retrace the facts. In 1798 the Legislature withdrew £  500 of the £  1250 granted to Washington College, and, in 1805, discontinued the entire donation to that and St. John's College. The State had given St. John's College a fair trial of twenty-one years, during which time she regularly paid every year this £  1750 or $ 4666.66 2/3. But finding this large expenditure to be wholly without results, and that the whole scheme was a failure, she stopped her payment entirely, and refused to pay any more. This she did in 1805. In 1811 we find St. John's College knocking at the doors of the Legislature, and by a resolution of that year, (No. 38,) a grant of the annual sum of $ 1000 was made to the college, and that [**70]  sum from that time forth was regularly paid to its visitors and governors. If we were to stop here, we might say this grant looked very much like a compromise. For why only $ 1000? It is fair to presume that the State would not agree to give more, and that the college agreed to accept it, and to ask no more. In 1812 the State, as if she had abandoned all hope of any beneficial results from a university by the union of St. John's and Washington Colleges, established a new university of Maryland, to be erected in the city of Baltimore, an institution about as barren of results even as St. John's College itself. In 1816 a lottery was granted to Washington College to raise the sum of $ 30,000, which, in 1833, was enlarged to $ 80,000. By the Act of 1821, ch. 46, a lottery was granted to St. John's College to raise $ 80,000. But it was in 1832 that St. John's College made her final demand upon the Legislature. By Resolution of that year, (No. 41,) the annual sum of $ 2000 in addition to the $ 1000 of 1811, and in addition to the authority to raise $ 80,000 by lottery, was granted to the visitors and governors of that institution. But the grant was made upon the express proviso that the [**71]  said sum should be accepted in full satisfaction of all legal or equitable claim which the visitors and governors might have or be supposed to have against the State, and it was further provided that before they received this annuity, they should file their acceptance of the same, upon the terms and conditions specified, in the office of the clerk of the Court of Appeals of the Western Shore, to be recorded in his office. That acceptance was filed, and after reading it, it must seem strange to any one to find this college renewing her demand against the State, and asking for more money. Here she is, however, and her demands are larger than ever. The Resolutions of 1832 made another condition with the college, as an additional condition of the grant of the annuity. They required that the charter of the college should be so amended as to give the State a representation in the Board of Visitors and Governors, and that the Governor, the President of the Senate and Speaker of the House of Delegates, and the Judges of the Court of Appeals, for the time being, should be members of the Board. Accordingly, at a meeting of the Board, held on the 4th of March 1833, the Resolutions having been [**72]  read and considered, it was declared that in consideration of the grant of the annuity aforesaid, the visitors and governors of St. John's College did agree to the proposed amendment of their charter, and did accept of the said annuity in full satisfaction of all legal or equitable claims which the said visitors and governors had against the State. The proceedings of the Board were authenticated under the common seal of the college, and the proceedings filed in the office of the clerk of the Court of Appeals for the Western Shore, as required by the Resolution. These proceedings of the Board show not a compromise merely, but a final accommodation and settlement of all matters in dispute, if there was any dispute in the case. It was a payment of all demands and a receipt in full. If the college had a legal claim upon the State, as she had not, this settlement and release was binding, and it ought to be binding, for without the stipulation that there were to be no further demands, the grant never would have been made. It is well settled that a compromise will be sustained and the terms enforced as between the parties, unless it appear that the party seeking to be released from it was [**73]  incapable of understanding, or was so overreached as to make it unconscionable in the other party to claim the benefit of it. 15 Verm., 379, Paris vs. Dexter. 7 H. & J., 468, Bosley vs. M'Kim. It is to meet this aspect of the case that the bill avers and charges that the annuity of 1832 was accepted by the visitors and governors "in ignorance of their rights, through oversight or otherwise through misapprehension and mistaken construction of the powers, liabilities and franchises in their charter." It is not sufficient merely to allege ignorance, misapprehension and mistake, but when these allegations are made the ground of setting aside solemn instruments, they must be proved, and what is the proof in the case? Not a syllable that looks like proof. On the contrary, the facts show anything but mistake or misapprehension of rights. It will not be overlooked, moreover, that it is a learned college which comes into court alleging ignorance and misapprehension. It is a fact not less impressive, that the misapprehension occurred in 1833, twenty-six years ago, and that the college, during that entire interval, has been receiving its annual payment of $ 3000 from the treasury, in addition [**74]  to the sums in gross realized from their lottery grant. Such an acquiescence would cure both mistake and ignorance; nay, it would be sufficient to prevent the allegation of fraud which is not pretended here. 4 Bibb., 529, Weist vs. Yoder.

Upon the whole, it is very clear that there never was a contract, in the sense of the Constitution, between the State and the college; that the original undertaking of the State was upon conditions which were not performed, by which the State became exonerated from all moral obligation to continue the annuity. It is plain, moreover, as I think, that the Legislature has acted with great liberality towards this institution; that a full, fair and final settlement was made between the parties, and that the same ought not to be disturbed. Whether the Legislature of Maryland may, at any time hereafter, feel disposed to renew the effort to found a university of her own, within her own limits, and, if so, whether the State would be inclined to select Annapolis as the site of the institution, are questions which do not come within the legitimate scope of the present discussion, and I forbear to enter upon them. It will not, however, be out of place to [**75]  remark, in conclusion, that a more eligible or a more beautiful foundation for such a college, could not be found anywhere than that occupied by St. John's College at Annapolis.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*371]  LE GRAND, C. J., delivered the opinion of this court.
This case originates out of a Resolution, No. 4, passed by the General Assembly of Maryland, at its session of 1858.
The questions in relation to which the opinion of the Judges of the Court of Appeals is desired, are:
1st. Whether the annual appropriation, made by the 19th section of the Act of 1784, ch. 37, of the sum of seventeen hundred and fifty pounds, current money, to be applied to the payment of salaries, &c., constitutes a contract on the part of the State, under all the circumstances of the case, which could not be legally repealed by the Act of 1805, ch. 85?

 [*372]  2nd. Whether this latter Act is not in violation of the tenth section of the first Article of the Constitution of the United States, which declares, that no State shall pass any law impairing the obligation of contracts?
3rd. Whether the former Act, with [**76]  the circumstances of the case, constituted such a contract as would, if entered into between individual citizens, be legally binding upon them?
These questions necessarily resolve themselves into but one, and that, the first of the series. For, if the Act of 1784, ch. 37, created a valid and binding contract, it cannot be denied, and has not been in the argument of the cause, that it was incompetent to the Legislature to annul or alter it without the consent of the grantees.
We understand the language of the Resolution, as confining our attention exclusively to terms of the Acts of 1784, ch. 37, and 1805, ch. 85, and the circumstances connected with their passage, and so understanding its purport, we shall omit all notice of circumstances occurring subsequently. The record presents other questions, which, in an ordinary case, we might deem it proper to consider; but this case is sui generis, unlike an ordinary suit. The proceedings have been instituted under the authority of the Legislature, for the sole purpose of obtaining the opinion of the judges of this court upon certain specific questions propounded by the Resolution, and we, therefore, consider it proper to confine ourselves [**77]  to those questions.
The State, on application of certain public-spirited citizens, granted the charter of St. John's College, and the preamble to the Act for founding the college sets out fully the motives of both parties. It states that, "it appears to this General Assembly, that many public spirited individuals, from an earnest desire to promote the founding a college or seminary of learning on the Western Shore of this State, have subscribed and procured subscriptions, to a considerable amount, and there is reason to believe that very large additions will be obtained to the same, throughout the different counties of the said Shore, if they were made capable, in law, to receive and apply the same towards founding and carrying on a college 

 [*373]  or general seminary of learning, with such salutary plan, and with such legislative assistance and direction, as the General Assembly might think fit, and this General Assembly, highly approving those generous exertions of individuals, are desirous to embrace the present favorable occasion of peace and prosperity, for making lasting provision for the encouragement and advancement of all useful knowledge and literature, through every [**78]  part of the State." The third section of the Act constituted certain persons agents "for soliciting and receiving" subscriptions to the college; and the nineteenth section, "to provide a permanent fund for the further encouragement and establishment of the said college," enacted, "That the sum of one thousand, seven hundred and fifty pounds, current money, be annually and forever hereafter given and granted, as a donation by the public, to the use of the said college," &c.
By the first section of the Act of 1805, ch. 85, this donation was discontinued and ordered to remain in the Treasury, subject to the appropriation of the Legislature to literary purposes, and for disseminating learning in the several counties of the State.
It is admitted, on behalf of the State, that individuals and corporations did, of their own funds, contribute towards the founding of the college, the sum of thirty-two thousand dollars.
Confining ourselves to this state of case, the simple question is: was the Act of 1784, under the circumstances, a contract within the meaning of the 10th section of the first Article of the Constitution of the United States?
By the fifth Article of [**79]  the Constitution of the United States, it is expressly provided, that the "Constitution, &c., &c., shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding;" and, by the 2nd section of the 3rd Article, that, "the judicial power shall extend to all cases in law and equity arising under this Constitution," &c.
This being so, the duty of this court is plain. It is to 

 [*374]  ascertain whether, under the decisions of the Supreme Court of the United States, the Act of 1784, ch. 37, is a contract which the Legislature could not impair or annul. That it was such, on the principles laid down by the Supreme Court in its interpretation of the meaning of the word "contract," as used in the 10th section of the first Article of the Constitution, in our judgment, ought not to admit of a doubt. We content ourselves with a citation of some of the language employed by the highest tribunal known to the country.
The leading and controlling case on this subject is that of Dartmouth College vs. Woodward, reported in the 4th volume of Wheaton, commencing [**80]  at page 518. This case was argued at great length and with rare ability. The judgment pronounced in it, has been the settled law of the land ever since. In that case, the charter of the college had been granted by the crown in the year 1769. Subsequently, the State of New Hampshire, passed certain Acts, whereby the charter was altered, principally by increasing the number, and altering the mode of the appointment, of trustees, and creating a board of overseers. This was done without the assent of the corporation.
On such a case, Chief Justice Marshall, in delivering the opinion of the court, said: "It can require no argument to prove that the circumstances of this case constitute a contract. An application is made to the crown for a charter to incorporate a religious and literary institution. In the application, it is stated, that large contributions have been made for the object, which will be conferred on the corporation as soon as it shall be created. The charter is granted, and on its faith the property is conveyed. Surely, in this transaction, every ingredient of a complete and legitimate contract is to be found." Having determined that the charter was a contract,  [**81]  in the broad sense of that term, he proceeds to inquire, whether it be such a contract as is protected by the Constitution? He distinguishes between private and public corporations, and says: "If the Act of incorporation be a grant of political power, if it create a civil institution to be employed in the administration of the government, or if the 

 [*375]  funds of the college be public property, or if the State of New Hampshire, as a government, be alone interested in its transactions, the subject is one on which the Legislature of the State may act according to its own judgment, unrestrained by any limitation of its power imposed by the Constitution." He demonstrates by a course of cogent reasoning, that the grant of the crown was not one of political power, merely to be exerted for governmental purposes, and gives several illustrations of the difference between a public and a private corporation. Mr. Justice Story, in his opinion, in the same case, goes so far as to remark: "A private donation vested in a trustee for objects of a general nature, does not therefore become a public trust, which the government may, at its pleasure, take from the trustee and [**82]  administer in its own way. The truth is, that the government has no power to revoke a grant, even of its own funds, when given to a private person, or corporation for special uses."
The doctrines laid down by the Supreme Court have been repeatedly recognized and asserted by the courts of this country, as well in this as in other States. Until overruled by the same tribunal which announced them, they are the law of the land. It is useless, therefore, to cite from elementary writers and adjudged cases, evidences of their affirmation. In response, therefore, to the questions propounded by the Resolution to the Court of Appeals, we give it as the opinion of that court:
First.--That the annual appropriation made by the 19th section of the Act of 1784, ch. 37, of the sum of seventeen hundred and fifty pounds, current money, to be applied to the payment of salaries, &c., constitutes, under all the circumstances of the case, a contract on the part of the State, which could not be legally repealed by the Act of 1805, ch. 85.
Second.--That the Act of 1805, ch. 85, was a violation of the tenth section of the first Article of the Constitution of the United States, which declares, that [**83]  no State shall pass any law impairing the obligation of contracts.
Third.--That the Act of 1784, ch. 37, with the circumstances 

 [*376]  of the case, constitutes such a contract as would, if entered into between individual citizens, be legally binding upon them.
And so the judges of the Court of Appeals certify. Witness their signatures:
JNO. C. LE GRAND.
JOHN B. ECCLESTON.
WILL. H. TUCK.
JAS. L. BARTOL.  

140 of 196 DOCUMENTS 

THE MAYOR & CITY COUNCIL OF BALTIMORE vs. ROBT. H. PENDLETON and WM. HARLAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 12; 1860 Md. LEXIS 5 

January 26, 1860, Decided 

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

This action was brought in May 1856, by the appellees against the appellants, to recover damages for an injury done to the plaintiffs' horse, occasioned by the digging of a trench in Garden street, in the city of Baltimore, into which the horse fell, and was thereby so crippled as to become worthless. Plea, not guilty.

Exception. The facts of the case as disclosed by the evidence are fully stated in the opinion of this court. The defendants asked two instructions to the jury.

1st. If, from the evidence in the cause, the jury find the said ditch or trench was not dug by the defendants, or any one employed by them, though they find it was dug by some one, but that the digging thereof and its condition as described by the witnesses, was the work of some private individual, by himself or his agents, or servants, with the view and as the means of connecting his private pipes with the main water pipe of the city in Garden street, then the plaintiffs are not entitled to recover of the defendants in this action.

2nd. If the jury find from the evidence in this cause that the horse of the plaintiffs was injured as stated by the witnesses,  [**2]  yet if they further find from the evidence that such injury was more owing to the negligence of the plaintiffs, or their servants, than to the defendants, if they should find negligence in the defendants then the plaintiffs are not entitled to recover.

These prayers the court (MARSHALL, J.) refused, and instructed the jury, that if they find from the evidence in the cause, that the horse of the plaintiffs, spoken of in the evidence, was injured by falling into a ditch or hole dug in a public street or highway, in the city of Baltimore, in the manner set forth in the evidence, and that the said ditch or hole had been previously dug in said street or highway, by some person for the purpose set forth in the evidence, and had remained open for the length of time stated in the evidence, and that the said ditch or hole had been left open negligently, and so as to make the use of the said street or highway dangerous; and further find that the defendants, or their agents, knew of said hole or ditch; and further find that said ditch or hole might have been secured by due and proper care on their part, so as not to be dangerous at the time of said injury, then the plaintiffs have a right [**3]  to a verdict for such damages as the jury may believe, from the evidence, they suffered by said injury to their horse, unless the jury shall find, from the evidence, that the plaintiffs, or their agents, did not use reasonable and proper care and diligence to avoid the danger occasioned as aforesaid.

To the refusal of their prayers, and to the instruction granted by the court, the defendants excepted. The verdict was in favor of the plaintiffs for $ 175 damages, and from the judgment thereon the defendants appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The corporation of the city of Baltimore having, by its charter, power "to prevent nuisances," is liable in damages to the owner of a horse for an injury done the horse, occasioned by the digging of a trench or hole in a street of the city, into which the horse fell, the driver having used reasonable and proper care and diligence to avoid the danger.

The facts that the trench was dug by the owner of a house fronting on the street, for the purpose of conducting water to his premises from the water pipes of the city, and that by the city ordinances on the subject, the necessary excavation, filling up and paving was to be done by such owner, do not relieve the corporation from the obligation, under its charter, to keep the public highways free from nuisances and in a condition to be safely travelled. 

COUNSEL:
Archibald Stirling and G. L. Dulany, for the appellants, argued:

1st. That the negligence, if any, in not properly filling up the trench or ditch in question, and repairing the street as it originally stood, was not the negligence of the city, but that of the owner of the horse, or his agent, who had the work done, and the court should have directed the jury that the plaintiff was not entitled to recover.

2nd. That for the acts or omissions of the Mayor and City Council of Baltimore, in its municipal or political character, no action at law can be sustained against them to recover damages; that if under the circumstances detailed [**4]  in evidence in this case, any omission or negligence could be found in not having the street properly repaved, yet their default was of a municipal or political character, for which they are amenable only to the people, or by indictment, and not in a civil action for damages. 2 Kent., 274, and cases cited in note (a). 7 Mass., 187, Riddle vs. Proprietors of Locks, &c. 4 Pick., 414, Merchants Bank vs. Cook. Angel & Ames on Corp., secs. 31 to 36. 2 Hill, (S. C. Rep.) 571, White vs. City Council of Charleston. 9 Cranch, 43, Terrett vs. Taylor. 4 Wheat., 636, Dartmouth College vs. Woodward. 3 Pet., 409, Fowle vs. Common Council of Alexandria. 17 How., 161, City of Providence vs. Clapp. 20 How., 135, Smith vs. Corporation of Washington. 8 Md. Rep., 95, Mayor & C. C. of Balto., Garn. of Brashears vs. Root. 4 Sandf., 222, Smith vs. City of New York. 9 Louisiana, (Ann. Rep.,) 461, Stewart vs. City of New Orleans. 12 Do., 15, Wilde vs. City of New Orleans. Ibid., 190, Lewis vs. City of New Orleans. Marriott's case in 9 Md. Rep., 178, is unlike the present in this, that in that case the matter complained of and which caused the injury was a nuisance, whereas in this the ditch was dug by proper [**5]  authority.

Geo. M. Gill, for the appellee, argued:

1st. That it was the duty of the appellants to prevent any nuisance in the public streets, and if by such nuisance (of which the authorities had notice in time to remove it, and failed to do it in a reasonable time) any injury has been done, the appellants are responsible therefor.

2nd. That the appellants, having undertaken to provide, for compensation to be paid them, the water for the use of the people of Baltimore, and having undertaken to lay the main pipes through the streets and through which the water was to flow, and having authority to prevent any person from tapping these main pipes and connecting therewith lateral pipes, were bound, where such permission is granted and such lateral pipes laid, to cause this to be done so as to prevent any nuisance in the streets therefrom, and to prevent the streets from being made dangerous to parties using them, and if the city authorities failed and neglected to perform such duty, a responsibility results therefrom.

3rd. The instruction granted by the court below was correct and put the case upon the true ground. The hole or ditch in the street had been left open [**6]  for three or four weeks before the injury--had been negligently left open and made the use of the street dangerous, and the appellants or their agents knew of this and might have secured the same by due and proper care, so that it would not have been dangerous at the time of the injury, and having failed to do their duty in the premises, the appellants must necessarily be responsible, it being proved that there was no negligence on the part of the plaintiffs or their agents. The case of The Mayor & C. C. of Balto. vs. Marriott, 9 Md. Rep., 160, decides every question involved in the present case, and is conclusive in favor of the plaintiffs' right of action and the liability of the defendants.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*16]  LE GRAND, C. J., delivered the opinion of this court.
The question involved in this case is res adjudicata in this State. The action was brought to recover damages for an injury done to a horse, occasioned by the digging of a trench, or hole, in Garden street, in the city of Baltimore, into which the horse of the plaintiffs fell, and was thereby so crippled as to become worthless. There is [**7]  no dispute as to the facts. The trench was dug opposite to a house on the street by the owner thereof, for the purpose of inserting his private pipe into the main pipe belonging to the city and running along the centre of the street, with the view of drawing water from thence and conducting it to his own premises. The trench in question was filled up with earth, and the paving stones placed upon it, but in such manner that by reason of the snow and wet, the ground was so soft that the horse, while in a cart hauling a load of coal, sank into it and there sustained the injury. There was no evidence going to show, or from which the jury could infer, any want of caution or care on the part of the driver at the time of the accident, but, on the contrary, the evidence went to prove that the appearance of the place, where the trench had been, was such, as to conceal the danger of any attempt to pass across it.
By the agreement of the parties, the Acts of Assembly applicable to the city of Baltimore, and the ordinances of the latter, are to be taken as part of the record in this case. Under these, the city has full authority to remove nuisances from its streets. The arrangement by which lateral [**8]  pipes are inserted into the main pipe in the centre of the street, is as follows: the officers of the corporation, for an established charge paid to it, bore a hole in the main pipe and the rest of the work is done by the person into whose premises the water is to be conducted; the necessary excavation, filling up and paving being also done by the owner of the property. But these responsibilities imposed upon the property owner 

 [*17]  do not relieve the corporation from the obligation, under its charter, to keep the public highways within its limits free from nuisance and in a condition to be safely travelled. In the present case the performance of their duty was wholly neglected for nearly a month, and, as a consequence of such neglect, the accident happened, and the liability of the city, in the absence of fault on the part of the plaintiffs, attached and became complete. In the case of The Mayor & C. C. of Balto. vs. Marriott, 9 Md. 160, in commenting on the clause in the charter of the city of Baltimore, which provides that the corporation "shall have full power and authority to enact and pass all laws and ordinances necessary to preserve the health of [**9]  the city, and to prevent nuisances," the court declare it to be "a well settled principle, that when a statute confers a power upon a corporation, to be exercised for the public good, the exercise of the power is not merely discretionary but imperative, and the words 'power and authority,' in such case, may be construed duty and obligation." And in accordance with this doctrine, which was sustained both by reason and authority in that case, the corporation was held liable for an injury occasioned by a person falling on the ice which was allowed to accumulate on the pavement. The same principle applies to the case now before us, and we think the court, in the instruction which it gave to the jury, correctly stated the law, and required of them to find every fact essential to the plaintiffs' right of recovery. The law having been properly laid before the jury, the appellants cannot successfully complain of the action of the court in regard to any of the other propositions submitted to it.  The Mutual Safety Insurance Co. vs. Cohen, 3 Gill 459.
Judgment affirmed. 

141 of 196 DOCUMENTS 

WILLIAM BAKER vs. SAMUEL WINTER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 1; 1860 Md. LEXIS 4 

January 24, 1860, Decided 

PRIOR HISTORY:
 [**1]  Appeal from the Superior Court of Baltimore City.

This was a scire facias upon the following mechanics' lien, filed in the court below, by the appellee, on the 3rd of November 1854.

"SAMUEL WINTER, vs. WILLIAM G. W. JAEGER.--In the Superior Court of Baltimore City.

Samuel Winter, of the City of Baltimore, Maryland, claims a lien for the sum of nine hundred and four dollars and sixty-four cents, on a two-story brick tenement, intended for a coach factory, fronting on the south side of West street, in said city of Baltimore, fifty feet, with a depth of thirty-two feet, and situate at the south-east corner of West street and Creek alley, and on a one-story brick tenement, or back building, attached thereto, intended for a coach smith or blacksmith shop, twenty-one feet by twenty-four feet, and the lot whereon said tenements are erected, and the ground adjacent thereto and used therewith, of which the said William G. W. Jaeger was, at the time of doing the work and furnishing all the materials hereinafter mentioned, the owner or reputed owner, for doing all the work and furnishing all the materials done and used in and about the erection and construction of said tenements,  [**2]  the above amount being the balance yet unpaid on account thereof; said work was done and said materials were furnished within the twelve months last past, and the work when completed was delivered by the said Samuel Winter to the said William G. W. Jaeger, on the twenty-first day of September last.

SAMUEL WINTER."

"Baltimore, 1st November 1854."

The appellant, Baker, filed a petition claiming to be owner of the property before the lien was recorded, and asking to be allowed to defend the suit, and was allowed to appear and defend the action. Both he and Jaeger then filed pleas of non assumpsit, upon which issues were joined.

The facts of the case, and the rulings of the court below, (LEE, J.,) set out in the exception, are sufficiently stated in the opinion of this court.

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

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

Defects apparent on the face of a lien claim filed under the mechanics' lien laws, may be taken advantage of by a motion to quash the scire facias, issued upon such claim, and such a motion is not within the operation of the Act of 1825, ch. 117.

Where the lien is claimed by a contractor or builder, the lien claim, under the Act of 1845, ch. 287, is sufficient, if it states in general terms the nature and character of the contract and the amount due under it.

A lien as filed, stated the claim to be "for doing all the work, and for furnishing all the materials done and used in and about the erection and construction of said tenements." HELD:

That this was not a sufficient compliance with the requirements of the Act of 1845, ch. 287, because the claim does not state the "nature and character" of any contract, either "in general terms," or in any terms.

A lien claim, dated the 1st and filed on the 3rd of November 1854, alleged that the work was done and the materials furnished "within the twelve months last past, and the work when completed was delivered by the" contractor to the owner "on the twenty-first day of September last." HELD:

That from this it is sufficiently shown that the lien was filed within six months after the completion of the work as required by the Act of 1838, ch. 205, sec. 13.

An amendment of a lien claim, authorised by the Act of 1845, ch. 287, sec. 1, cannot be made in the Court of Appeals; such amendments must be made in the court below.  

COUNSEL:
Chas. E. Phelps and John Stewart for the appellant.

The Act of 1838, ch. 205, sec. 11, enacts that "every claim must set forth" (among other things) "the amount or sum claimed to be due, and the nature or kind of work done, or the kind and amount [**3]  of materials furnished, and the time when the materials were furnished or the work was done." The case of Carson vs. White, 6 Gill 17, decides that no mechanic has a lien in virtue of this Act who does not file a statement containing specifically the above particulars. It is plain, therefore, that if the plaintiff's case were that of an ordinary mechanic, or material man, he could not recover upon this claim. The supplementary Act of 1845, ch. 287, sec. 2, provides, however, that "when a claim is filed by a contractor or builder, nothing more shall be necessary than to state in general terms the nature and character of such contract and the amount due under the same." On any contruction of this statute, however liberal, it is plain the words of the law have not been even "substantially complied with" in the present case. There is a total omission of any mention whatever of a "contract," and of course no information is given of its "nature or character," even in the most "general terms." Neither is the balance due stated to be due under a contract as required. 10 Md. Rep., 257, Hess & Reid vs. Poultney.

Again, under sec. 13, of the Act of 1838, ch. 205, the claimant is bound to [**4]  file his claim within "six months after the work shall have been finished, or materials furnished," or he has no lien. As this fact is essential to give him even a prima facie case, it should appear upon the face of the record, and the omission cannot be supplied by parol. In the present case, not only are the items and dates not given, nor the "nature and character of the contract" stated, but there is a total failure to bring the lien prima facie within the law as regards time. The allegation that the work was done within "twelve months," might as well have been within twelve years, for any purposes which the law has in view. The only date afforded by the claim, is that which fixes the day upon which the work was "delivered when completed." Non constat, that the work was completed on that day. The six months do not run from the date of the delivery, but from the date of completion.

If these views are correct, the motion to quash was improperly overruled. The defect being apparent upon the face of the proceeding, the motion to quash was a proper mode of taking advantage of it. 2 Md. Rep., 334, Lambden vs. Bowie. In a somewhat similar case, in Pennsylvania, the court, on motion,  [**5]  ordered the claim itself to be stricken from the record, even before the scire facias issued. 5 Watts & Sergt., 263, Lehman vs. Thomas. See also 30 Penn. State Rep., 53, City of Philadelphia vs. Sutter.

But the appellee supposes this defect in his claim may be cured by amendment under sec. 1, of the Act of 1845, ch. 287, and he has made a motion to have such amendment made in this court. It is submitted, however, that whatever amendment this section may allow, must be made in the court below, and not here. This court, by the Constitution, has appellate jurisdiction only. It is confined to the record, and must act upon the case as there presented.

Edward Duffy, for the appellee, argued that the motion to quash was properly overruled:

1st. Because such a motion is not provided for, authorized or sanctioned by the mechanics' lien laws. No matter what defects, or irregularities, there may be in the claim or proceedings, they must be taken advantage of by plea, or in some other mode than by a motion to quash.

2nd. But if the motion is properly made, this court is confined by the Act of 1825, ch. 117, to the consideration of the single defect, raised by the motion in [**6]  the court below, viz: "that the plaintiff neglected to file a bill of particulars of his claim," and this objection is not tenable, because the Act of 1845, ch. 287, sec. 2, dispenses with a bill of particulars in cases, where, as here, the lien is claimed by a contractor or builder.

3rd. But if the objections urged in argument here, can be considered by this court, it is still insisted that the claim is not defective. The Act of 1838, ch. 205, sec. 11, shows what it is necessary to state in the claim. If it even were necessary that the lien should show upon its face that it was filed within six months after finishing the work, or furnishing the materials, it was so only from that part of this section, which says, "second, the amount or sum claimed to be due, and the nature or kind and amount of materials furnished, and the time when the materials were furnished, or the work was done, as the case may be." Now, the decision in Carson vs. White against the lien claimant produced the passage of the Act of 1845, ch. 287, sec. 2, under which the contractor need only state in general terms the nature and character of such contract, and the amount due under the same. The lien here states [**7]  that Winter claims against Jaeger, a lien for $ 904.64, on certain property, for doing all the work, &c., of which Jaeger was at the time owner, which sum is the balance due on account thereof, and that Winter delivered the work when completed to Jaeger. Now the statement that "the work when completed was delivered to Jaeger, on the 21st of September," means, critically, that the work was completed on that day, otherwise you might substitute "after" for "when," without altering the sense. The lien does not use the word "contract," but states facts which in law constitute a contract, and that is sufficient. Suppose Jaeger had employed Winter in the following terms: "Furnish all the materials and do all the work for me in the erection of this house," and that Winter had done so. That would be a good contract althongh the price was not named, the law implying that it was to be done for a reasonable price. The lien in this case states just such a contract. It does not use the word "contract," but it gives the language of it. It does not state the price, because no price was agreed on. If the words "for a reasonable price," had been inserted in the lien, it would be free from objection;  [**8]  but if those words were not used in the making of the contract, it is not necessary to insert them in the lien. It could hardly be intended that the lien claimant, in stating "in general terms the nature and character of his contract and the amount due under the same," is bound to state more than the language of the contract itself.

4th. Again, if the lien is defective it can be amended in this court. The Act of 1845, ch. 287, sec. 1, is the broadest amendment law we have. It states "that such amendments may, at any time hereafter, be made, &c., commencing with the claim and extending to all subsequent proceedings." If the court should be of opinion that the claim is defective in not stating on its face, when the work was completed, and the nature and character of the contract in general terms, and the price for which it was to be done, then the appellee proposes, and now moves this court to allow him to amend the lien by inserting therein the following: "and the said Winter in addition to the facts and claims set forth in his lien claim contained in the record in the cause, says further that the said work was done and materials furnished under a contract between said Jaeger and [**9]  Winter, that said Winter should do all the work and furnish all the materials for and about the erection of said buildings at a reasonable price, and that said reasonable price was the sum of $ 1263.90; and he further says that said work was done and said materials furnished within six months before the filing of the original lien in the clerk's office of the Superior court.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*7]  ECCLESTON, J., delivered the opinion of this court.
On the 3rd of November 1854, Samuel Winter, the appellee, filed, in the office of the clerk of the Superior court of Baltimore city, his claim for the sum of $ 904.64, against the property therein mentioned, and against Wm. G. W. Jaeger, as owner or reputed owner," &c., "for doing all the work and furnishing all the materials done and used in and about the erection and construction of said tenements, the above amount being the balance yet unpaid on account thereof." The claim then states that "said work was done, and materials were furnished within the twelve months last past, and the work when completed was delivered by the said Winter to the said Jaeger on [**10]  the 21st day of September last."
On the 18th of April 1856, the writ of scire facias issued upon this claim. After the return of the writ, judgment by default was entered, which, by consent, was subsequently stricken out.
The appellant, Baker, having filed a petition setting forth his ownership of the property in question, was admitted as a party claimant, to defend the action.
The two defendants severally pleaded non assumpsit, upon which issues were joined.
The verdict and judgment being in favor of the plaintiff, this appeal was taken by the defendant, Baker.
After setting forth all the evidence offered at the trial, the bill of exceptions shows, that the plaintiff then asked an instruction which the court granted.
The defendant, Baker, then filed a motion "to quash the proceedings in this cause, because upon the filing of the lien upon which scire facias issued, the plaintiff neglected to file a bill of particulars of his claim, in accordance with the Act of Assembly in such case made and provided."
This motion the court overruled; and the defendant then offered three prayers. The first of which was granted, and the others were refused. Whereupon, exception [**11]  was taken to the overruling of the motion to quash, to the granting of 

 [*8]  the plaintiff's prayer, and to the rejection of the second and third prayers of the defendant.
During the argument in this court, the defendant's second and third prayers were abandoned.
Inasmuch as this decision will be based, exclusively, upon the questions arising under the motion to quash, there is no necessity for considering those which are presented by the prayers.
It has been contended by the appellee's counsel that such a motion as this cannot be sustained, no matter what defects may be apparent on the face of a lien claim. But to such a proposition we cannot yield our assent. The statutory provisions, in regard to the claim to be filed of record, must appear to have been complied with. Carson vs. White, 6 Gill 17.
In Campbell, Trustee of Harper, vs. Booth, 8 Md. 107, a motion was made to quash a scire facias upon a judgment in Baltimore county court. The motion was sustained in that court, but reversed on appeal. The reversal, however, resulted from the consideration that the irregularities relied on to sustain the motion, did not appear upon [**12]  the face of the writ, and did not depend, exclusively, upon matters of record; but the objections were such as when disclosed by pleading, might present issues of fact proper for the consideration of a jury.
The objections urged, in argument, in support of the present motion, do not rest upon matters in pais, but are based upon alleged defects in the lien claim as filed of record. And if there are defects, in matters of substance, showing that the requirements of the lien laws have not been complied with, we see no good reason why a motion to quash the sci. fa. is not a proper mode of defence. But it is said, on the part of the appellee, that the motion alleges a single defect; which is, that "the plaintiff neglected to file a bill of particulars of his claim." And this, he insists, was not necessary for him to do; because the Act of 1845, ch. 287, did not require him, as a contractor or builder, to file a bill of particulars, but merely to state in general terms the amount due.

 [*9]  This being the only defect stated, it has been argued that the Act of 1825, ch. 117, will not permit any other now to be relied upon. But it has been held that neither demurrers nor motions [**13]  in arrest of judgment come within the operation of that Act. And in Price & Martin vs. Thomas & George, 4 Md. 514, where exceptions were taken to the regularity of an award it was decided, that any defect appearing upon the face of the award, might be inquired into, although not particularly specified in the exceptions. If, in the instances above mentioned, the Act of 1825, was not considered applicable, it would seem to be equally inapplicable to the present motion, in such a case as this.
If this be true, then it is proper to inquire whether the reasons urged by the counsel for the appellant to sustain their motion, are sufficient for that purpose. The first is, that the lien claim does not state in general terms, or in any terms, the nature and character of the contract upon which it is based. The second alleges that the claim does not show, with sufficient certainty, that the lien was filed within six months after the work was completed.
According to the decision in Carson vs. White, the Act of 1838, ch. 205, made it necessary that a lien, claimed under that law, should contain a bill of particulars. This, however, is rendered unnecessary, by [**14]  the Act of 1845, ch. 287, sec. 2, when the lien is claimed by a contractor or builder. That law declares that, "where a claim or lien is filed by a contractor or builder, whether of the whole or of a part of such building, nothing more shall be necessary than to state in general terms the nature and character of such contract, and the amount due under the same."
In the lien as filed, Winter's claim is stated to be "for doing all the work and for furnishing all the materials done and used in and about the erection and construction of said tenements." This is deemed sufficient to show that his claim is made under the provisions of the Act of 1845, ch. 287. The question then arises, have the requirements of that Act been complied with? It is perfectly manifest that they have not. 

 [*10]  The claim does not state the "nature and character" of any contract, either "in general terms," or in any terms.
The 13th sec. of the Act of 1838, ch. 205, requires a lien claim to be filed within six months after the work shall have been finished, or materials furnished. This provision has not been changed by any subsequent legislation.
The claim contains an allegation that, "said work was done,  [**15]  and said materials were furnished within the twelve months last past, and the work when completed was delivered by the said Samuel Winter to the said William G. W. Jaeger, on the twenty-first day of September last."
This is considered as equivalent to saying, that on the 21st of September last, the work, when completed, was delivered; or, on the 21st of September last, the work was delivered, when completed.
The claim is dated the 1st of November 1854, and is shown, by the record, to have been filed on the 3rd of the same month, consequently, the "twenty-first day of September last," mentioned in the claim, was the 21st of September 1854; and, therefore, understanding the language of the claim filed, to mean the work was completed and delivered on that day, it is sufficiently shown that the lien was filed within six months after the completion of the work.
The second reason urged in support of the motion to quash, therefore, does not present a valid objection to the lien. But the first does, and no motion to amend appearing to have been made, on the part of the plaintiff, in the court below, the defendant's motion to quash should have been sustained.
At the close of the argument [**16]  in this court, the counsel for the appellee made a motion to amend the proceedings, claiming the right to have his proposed amendment made here, under the 1st section of the Act of 1845, ch. 287. The section provides "that such amendments may at any time hereafter be made in the proceedings under the said Acts of Assembly, now pending or hereafter to arise, commencing with the claim or lien filed or to be filed, and extending to 

 [*11]  all subsequent proceedings as may be necessary and proper to effect the objects, intents and purposes of the said Acts of Assembly; provided, however, that the amount of the claim or lien shall not in any or under any circumstances be increased or enlarged."
Having decided that the lien appears to have been filed within six months after the completion of the work, no amendment on that subject is necessary. The subsequent remarks must, therefore, be understood as relating to such portion of the appellee's motion as proposes to amend, by setting forth in the claim, in general terms, the nature and character of the contract, on which the claim is based.
Notwithstanding the apparently comprehensive language of the Act, it cannot be supposed [**17]  the Legislature designed to authorize such an amendment in this court, having appellate jurisdiction only.
When a case has been tried below upon a claim, which is defective, not merely in form but in substance, without any application there presented for amendment, and an appeal is taken, if the defect should be amended in the court above, a decision upon the amended record will not be a decision upon the case as tried below and brought up by appeal, but one presenting very different questions. Such would certainly be the effect of granting the present application.
Where a scire facias issues upon a lien claim, which the defendant's counsel believes to be essentially defective on its face, although he may have other valid grounds of defence he may think it quite safe to rely only upon the apparent defect. Should the decision be against the defendant and he appeals, then, if in the court above, an amendment of the defect is applied for and granted, and the decision below is affirmed, there can be no opportunity for the defendant ever to avail himself of his other grounds of defence. Whereas, if such amendments are required to be made in the court below, then, the defendant will [**18]  be in a position where he may present his defence, by such pleas and issues as may be proper for the decision of the court or of a jury.

 [*12]  Whilst such an interpretation of the statute, as will require the amendments to be made in the court below, cannot do any injury, or operate unjustly, to the claimant, a different construction might, and most probably would, in many instances, impose great hardships upon defendants.
Believing the court erred in refusing the appellant's motion, the judgment will be reversed and a procedendo awarded.
Judgment reversed and procedendo ordered. 

142 of 196 DOCUMENTS 

ADAM DENMEAD vs. THOMAS COBURN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

15 Md. 29; 1860 Md. LEXIS 9 

January 19, 1860, Decided 

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

Assumpsit brought on the 2nd of March 1854, by the appellee against the appellant. The declaration alleges that the defendant was indebted to the plaintiff in the sum of $ 963.71, for work and labor done and materials furnished. It also contains counts for goods sold, money had and received, upon an account stated, and for sundry matters properly chargeable in account, as by a particular account filed, appears. Plea non assumpsit.

Exception. The plaintiff offered in evidence the following written contract, signed by himself and A. and W. Denmead & Son: "Baltimore, November 22nd, 1852. Memorandum made this day between A. & W. Denmead & Son, on the one part and Thomas Coburn of the other part, all of the city of Baltimore, and State of Maryland. Thomas Coburn agrees to put up the stone arch under Eager street and across our race, the side walls to be three feet thick, and arch to be span sixteen feet semi-arch, the side wall to be laid dry and the arch with good mortar, for six dollars per foot running measure. A. and W. Denmead & Son to do all the digging, and Thomas Coburn to furnish all the labor and materials for said arch,  [**2]  including the braces for centering, the arch to be well backed up. Thomas Coburn also agrees to give A. and W. Denmead & Son, one dollar per perch for all the old stone taken out of the race, which Thomas Coburn agrees is thirty one perches."

The bill of particulars consists of two items, 1st, 124 feet length of arch built by the plaintiff at $ 6.50 per foot, making $ 806. 2nd, "136 70/100 perches stone, in one foot high of abutments, and in two wing walls at $ 2.25 per perch," making $ 307.71. It then allows a credit of $ 150, leaving due $ 963.71. The other evidence in the case is sufficiently stated in the opinion of this court. Upon all the evidence the plaintiff asked the following instructions to the jury.

1st. If the jury shall believe, from the evidence, that the arch built by the plaintiff fell in consequence of the manner in which the street was filled in above it, and not because of any defect of materials or workmanship, then the plaintiff is entitled to recover the sum stipulated in the contract.

2nd. If the jury shall believe from the evidence that the increased height of the abutments, and the wing-walls, not provided for in the contract, were built for [**3]  the advantage of the defendants, and that they knew of the same while the work was being done, and made no objection thereto, the plaintiff is then entitled to recover such sum as the jury shall believe to be reasonable compensation for such extra work.

3rd. That the plaintiff is entitled to recover such sum as the jury shall believe, from the evidence, to be the value of the materials belonging to him and used by the defendants in the new arch, less such payment as has been made to him by the defendants on account.

The defendants asked the following instructions:

1st. That the second item in the bill of particulars submitted by the plaintiff, is not embraced in the written contract offered in evidence by the plaintiff.

2nd. If the jury shall be satisfied, from the evidence, that the whole work stipulated for in the written contract offered in evidence by the plaintiff was not completed by the plaintiff, then the plaintiff is not entitled to recover in this action.

3rd. If the jury shall find from the evidence that the stone arch and side walls, mentioned in said contract, were put up by the plaintiff, but that said arch, as stated in the evidence, fell down [**4]  in part, and for the residue had to be taken down, then the plaintiff is not entitled to recover, if the jury shall be satisfied from the proof that the partial falling of said arch, and the taking down of the rest of it, were, to any extent, caused by defective material in said arch or side walls, or the defective workmanship of either, or for want of the said arch being well backed up according to said contract.

4th. If the jury shall be satisfied from the evidence that the stone arch and side walls, mentioned in said contract, were put up by the plaintiff, and that the said arch fell, in part, and for the residue had to be taken down, through no defect in the plaintiff's work, or materials, but because of the injury to the same occasioned by the manner in which, according to the plaintiff's evidence, the earth was dumped on said arch in the construction of Eager street, then the plaintiff is not entitled to recover; if the jury shall further find from the evidence, that such injury was done while said work was in course of construction and before it was completed.

The court (LEE, J.) granted all the plaintiff's prayers and all of the defendant's except the fourth, which [**5]  was refused, and to the granting of the plaintiff's prayers and the refusal of his fourth prayer, the defendant excepted. The verdict was in favor of the plaintiff for $ 1073.72, and from the judgment thereon the defendant appealed.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

The defendant had a mill-race flowing under a street, in the city of Baltimore, which the city authorities determined to fill up and extend, so that it became necessary this race should be arched over under the bed of the street, and the proper officer of the city made a contract with the plaintiff to build the arch, for a specified sum. The same officer afterwards entered into an arrangement, with the defendant, by which the sum to be paid the plaintiff for building the arch should be allowed the defendant, he agreeing to have an arch of a superior character built, and to be liable for any additional sum it might cost, and the plaintiff was to do the work. The plaintiff and defendant then entered into a written contract, by which the former agreed to build the arch as therein specified, for the latter, at a certain rate. Whilst the arch was in process of construction a contractor with the city was engaged in filling up the street, and over him the defendant had no control, he being subject only to the city commissioner. Before the arch was completed that portion of it which was done, fell in, either from bad materials and workmanship, or from the manner in which the contractor for filling up the street caused the earth used for that purpose to be "dumped" down against the arch. After notice to the plaintiff that he had not fulfilled his contract, the defendant caused the arch to be rebuilt. The plaintiff then sued the defendant in an action of indebitatus assumpsit, for work and labor in building this arch and for extra work and materials, the declaration containing no special count on the contract. HELD:

1st. That the plaintiff cannot recover in this action for the work done on the arch, there being no evidence that the work contracted for was completed, or of the abandonment of the contract, or of any act of the defendant by which the plaintiff was interfered with in the prosecution of his work.

2nd. That if his work was destroyed by the acts of the contractor for filling up the street, without any fault of the defendant, the plaintiff's remedy, if, under the circumstances, he has any against any party, is against such contractor, or the city, if the contractor was its agent.

3rd. Nor can the plaintiff recover for any extra work, there being no sufficient proof to justify the jury in inferring any assent on the part of the defendant to any such work, or departure from the terms of the contract; the contract bound the plaintiff to build an arch suitable for the purposes intended; and, therefore, imposed upon him the obligation to do all indispensable to that end.

4th. But the plaintiff is entitled to recover the value of any materials belonging to him which were used by the defendant in rebuilding the arch.

Where there is a special contract the plaintiff cannot recover in an action of indebitatus assumpsit for work and labor, unless the work under the contract was fully performed and accepted by the defendant, or the contract was abandoned by mutual consent, or the fulfilment of it prevented by some act of the defendant.

A prayer "that the plaintiff is entitled to recover such sum as the jury shall believe from the evidence to be the value of the materials belonging to him and used by the defendant in the new arch," is erroneous, because it assumes the fact that such materials were so used.  

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

1st. The plaintiff's first prayer should not have been granted, because it assumes the existence and execution of the contract, according to which the jury were directed to ascertain the amount due to the plaintiff, and also that the arch was in fact built, instead of leaving the jury to find these facts. 4 Md. Rep., 252, Balto. & Susq. R. R. Co. vs. Woodruff. Ibid., 476, Ellicott vs. Peterson. 3 Md. Rep., 162, Gaither vs. Martin.

2nd. The plaintiff having declared in indebitatus assumpsit, for work and labor, and on the common counts, and not on the special contract offered in evidence, cannot recover in this action, unless the evidence shows (which it altogether and entirely fails to show) either, 1st, that the contract has been fully executed and performed, and the work therein contracted for completed; or, 2nd, that a portion of the work having been performed,  [**6]  the contract was abandoned by mutual consent, or its completion prevented by some act of the defendant. 16 Wend., 632, Mead vs. Degolyer. 7 Md. Rep., 298, Balto. & Ohio R. R. Co. vs. Resley. 14 Johns., 326, Clark vs. Smith. 4 Md. Rep., 491, Ellicott vs. Peterson. 4 Cowen, 564, Jewell vs. Schroeppel. 19 Pick., 496, Baker vs. Corey. 2 Md. Rep., 57, Bull vs. Schuberth. 14 Mass., 282, Taft vs. Inhabitants of Montague. 2 Pen. & Watts, 454, Shaw vs. Turnpike Co. 9 Metcalf, 577, Moulton vs. Frask. 3 Taunt., 52, Ellis vs. Hamlen. 2 East, 145, Hulle vs. Heightman. 9 Pet., 565, Ches. & Ohio Canal Co. vs. Knapp.

3rd. If it be admitted that the fulfilment of the contract spoken of in the prayer, was prevented by an act of the defendant, then, in this action, the plaintiff could only recover for the work which he had done at the time the arch fell, and then only what the work done was actually worth; nor is the contract price conclusive evidence of the value of the work, whereas the theory of the prayer is that the plaintiff is entitled to recover for the whole work at the contract price. 9 Gill, 288, Rodemer vs. Hazlehurst. 15 Queen's Bench Rep., 576, Goodman vs. Pocock. 2 Crompton & Mees.  [**7]  , 214, Chapel vs. Hickes.

4th. The evidence shows that the plaintiff cannot maintain any action for the work done on the arch against the defendant; and, therefore, the judgment should be reversed without procedendo. 1st. He can maintain no action on the contract for the price of the work as agreed on in the contract, because he has never done that which alone entitles him to recover by virtue of the contract, that is--built the arch. 19 Pick., 275, Adams vs. Nichols. 2 Mass., 147, Faxon vs. Mansfield. 14 Mass., 282, Taft vs. Inhabitants of Montague. 8 Carr. & Payne, 126, Rees vs. Lines. 2 Pen. & Watts, 454, Shaw vs. Turnpike Co. 2nd. No action can be maintained on the contract for a breach of it, because the defendant has committed no breach. If the arch fell because of defective materials, or unskilful workmanship, the plaintiff has no one to blame but himself; if it fell in consequence of the manner in which the earth was thrown upon it, the corporation of Baltimore, or its agents, who committed the wrong, are those to whom the plaintiff must look; the defendant is in no way responsible for their acts. 9 Metcalf, 579. What the defendant contracted to pay the plaintiff for was [**8]  the building of an arch; this not having been done there is no liability on him, and he has no concern whose fault it is that it was not done, inasmuch as it was no fault of his; 3rd, nor can the plaintiff maintain any action on a quantum meruit. The ground of this action is benefit conferred; now, it is plain that the defendant so far from deriving any benefit from what was done by the plaintiff, was compelled to undo, at his own expense, what had been done. 1 Camp., 38, Farnsworth vs. Garrard. 2 Mass., 147, Faxon vs. Mansfield. 14 Mass., 282, Taft vs. Inhabitants of Mont. 8 Carr. & Payne, 126, Rees vs. Lynes. 1 Smith's Lead. Cases, 44.

5th. The court erred in granting the plaintiff's second prayer. 1st, because it assumes the existence and execution of the contract spoken of, instead of leaving these facts to be found by the jury. 2nd, because there is no evidence to show that the abutments and wings spoken of in the prayer were built for the advantage of the defendant; and nothing being said about either in the contract, there is nothing to show that they were built any higher than the necessities of such an arch as the contract contemplated required; and, therefore, nothing [**9]  upon which to base the claim of their being paid for as extra work. Nor is there any evidence that the defendant had any knowledge of the height of the abutments or wing walls, while they were being built, or at any other time, and no evidence as to whether he objected to them or not, nor any evidence as to what was reasonable compensation for such work.

6th. The court also erred in granting the plaintiff's third prayer. By granting the plaintiff's first prayer, the jury were instructed to allow the plaintiff the full sum stipulated in the contract, if they found the arch fell for the reason stated in that prayer. Such a recovery by the plaintiff clearly made the arch, and all its materials, the property of the defendant. By granting the plaintiff's third prayer the court directed the jury to add to the sum recovered in the first prayer such a sum as they believed was the value of the materials belonging to the plaintiff used by the defendant in the new arch; the defendant was therefore held to pay for materials which were already his own. There is not a particle of evidence as to the value of these materials.

7th. For the reasons and upon the authorities already sufficiently [**10]  set forth, the fourth prayer offered by the defendant, correctly stated the law applicable to this case and should have been granted.

C. J. M. Gwinn, and John H. B. Latrobe, for the appellee.

The cases referred to by the appellant, under his first point, do undoubtedly decide that a prayer is defective which assumes a fact which ought to be found by the jury. But it is to be considered whether, in this particular case, the first prayer of the plaintiff is liable to this objection. Its language is, "if the jury believe from the evidence that the arch built by the plaintiff fell." Now, what facts does this prayer leave to the jury? Can any one doubt that it leaves to the jury whether any arch built by the plaintiff fell? For it undoubtedly, in express terms, leaves the question of the falling of the arch to the jury, and it, therefore, leaves it to the jury to find the words of description by which that arch ought to be specially designated; that is to find that the arch referred to, was the arch built by the plaintiff. Nor does this prayer assume the existence and execution of a contract in such manner as to make it erroneous. The suit was not brought on any contract; it was [**11]  on the contrary a suit on the common counts. The theory of the plaintiff being that the contract which led to the suit was in contemplation of law executed by him, he was at liberty on that theory to rely on the common counts. 1 Chitty's Plead., 333; Ridgeley vs. Crandall, 4 Md. Rep., 441. The contract, if one exists, is in such case, the mere measure of the claim sued for. Now if we are right in our supposition that the former part of this first prayer is correct, let us proceed still further. The jury could not find from the evidence that the arch built by the plaintiff fell, unless they found the circumstances under which that arch was built. The prayer must, therefore, receive its interpretation from the evidence in the cause; and that evidence shows that the arch which was built, was built for the defendant, under the contract offered in evidence, which is a part of the evidence on which the prayer is based. When, therefore, the court instructed the jury that, if they believed from the evidence that the arch built by the plaintiff did not fall from any fault of the plaintiff, the plaintiff was entitled to recover the sum stipulated in the contract, the court did not assume to [**12]  itself the finding of a contract, but adverted only to the inevitable conclusion, which followed from the preceding parts of the prayer. For as the jury could only find that the arch built by plaintiff fell, by recognizing the circumstances under which that arch was constructed, one of which circumstances was the contract, so the court instructed the jury finally that this circumstance, which the jury had thus been obliged to consider, was to be the rule of compensation.

It may be here remarked, however, that the objection to the structure of this prayer is one which ought to be repudiated by the Court of Appeals, even if the opinion of that court has been hitherto given in favor of objections of such a character.

The record of this case, shows that a certain memorandum of a written contract for the building of a stone arch, had been entered into between the appellant and the appellee. This contract was offered in evidence, and read to the jury. It was undoubtedly proof in the cause, received by the court, and as such considered by the jury. That contract provided for the construction of a stone arch, of certain proportions, and for the price which should be paid for it.  [**13]  The proof further received by the court and considered by the jury, related directly to the building of that arch under the contract, which the jury had been permitted to consider. And we are now told, although the record shows that the fact that the arch was built, was submitted to the jury, and although the fact that a contract to build that arch was proved and submitted to the jury, that the Court of Appeals ought to ignore these facts, so appearing, of record, and ought legally to assume that the court below had invaded the province of the jury, had found for itself that an arch was built, and had found for itself that a contract existed. In a word, the Court of Appeals is asked to draw this inference in the face of the statement in one part of the record, that these facts were really submitted to the jury, because the judge of the inferior court, in another part of that record, does not repeat to the jury that they are to ascertain the truth or falsity of the matters of evidence, which he had already submitted to their decision.

We beg leave to call the attention of the court to one position. A trial at law is a continuous proceeding, each part of which maintains, connects [**14]  and explains, every other. A bill of exceptions is, by statute, as much a constituent part of the record, in a civil cause, as are any of the pleadings. The facts stated in a bill of exceptions are as material a part of that bill as the instruction of the court. Would the court, upon the trial of a question of pleading, undertake to determine the sufficiency of a replication, without taking into consideration the plea to which it applied, or the declaration which gave meaning to the matters of the plea? Assuredly it would not, because, being parts of the same record, declaration, plea and replication explain each other. Why should a different rule be applied to a bill of exceptions? All of such a record should be taken to together. And while the instruction of the court may never assume a fact to have been proved, concerning which there was no evidence given to the jury, it may assume, for the purpose of the instruction, every fact which the bill of exceptions may show was proved. proved. Boardman vs. Reed, 6 Pet., 344. United States vs. Morgan, 11 How., 159. The true theory of an instruction by the court is, that it presents hypotheses of facts, and instructs the jury as to the conclusions [**15]  of law from them. And it is submitted that, when the court in an instruction states a fact, (which has been submitted to the jury,) as a fact, it ought to be understood by the Court of Appeals as making a hypothetical statement, dependent on the belief of the jury of such fact.

But independently of this view, it is to be observed that the law of this State does not determine that a court may not, on some occasions, assume that a fact exists, even if that fact has been a subject of proof to the jury. If there is no proof in a cause to contradict a fact, which has been given in evidence to the jury, or no proof, from which a rational mind could make any inference of fact at variance with what has been proved to the jury, the inferior court is justified in treating the fact in proof as a concessum, and in so doing would not be considered as invading the province of the jury. M'Elderry vs. Flannagan, 1 H. & G., 321. Stewart vs. The State, 2 H. & G., 119. This case fulfils these conditions, and the inferior court was, therefore, authorized to treat the contract as a concessum.

But it is not necessary to depend upon this position. The court will observe that the appellant in his [**16]  second and third prayers, which were granted by the inferior court, relied upon the very contract in question, as a fact in the cause, (the existence of which he clearly assumes,) to defeat the action of the appellee. In these two prayers his ground of defence is, that the appellee had not complied with the contract made with the appellant. Surely then he was not prejudiced by the instruction of the court, which if it did assume the existence of the contract, assumed it only by reason of the concession of the fact in the instruction asked by the appellant, it being a fact which, the action being on the common counts, was necessary to the support of the defence of the appellee. Under such circumstances the Court of Appeals will not reverse the judgment of the inferior court. Union Bank vs. Planters Bank, 9 G. & J., 461. Greenway vs. Turner, 4 Md. Rep., 296. Balto. & Ohio R. R. Co. vs. Resley, 14 Md. Rep., 424.

There was evidence to sustain the appellee's second prayer. The record shows that Spedden was then city commissioner. The arch in question was intended to support the bed of Eager street, where it crossed the race of the defendant. It was the right and duty of the city commissioner [**17]  to contract for such a bridge, as would safely span this race, and afford a sure bed for this street. Act of 1838, ch. 226, sec. 1. Revised Ordinances of 1858, No. 12, sec. 2. He had made a contract, which in his judgment secured this result, when the defendant came to him, and asked for the money appropriated by the city for this arch, and for leave to have the arch built under his supervision, in order that he might have it well built. The City Commissioner assented, only asking that Coburn might be employed to build it, as he had contracted with him. Now this arch was a part of a public highway, which was by the charter of the city exclusively under the control of the city authorities, upon whom the law imposed the obligation of making that highway safe and traversable. Whoever voluntarily assumed the duty imposed on the city by law, subjected himself to the same obligation. Though contracting with the city, Denmead became by his agreement with the city, an agent, no less than a contractor, and by assuming, as agent, to execute a work which the city was bound under the law to execute, he must be understood to have assumed that he would execute it according to the requirements of [**18]  the law of the locality in which it was executed. That law required, as we have said, that the highway referred to in his contract should be safe and traversable. And had the city, or its agent so executed this work, as not to ensure this result, the corporation would have been subject to indictment. The person practically substituted by Denmead in this agency, was at liberty to regard the legal duty of the city and of Denmead, in relation to this highway, as an element in his contract. Owings vs. Hull, 9 Pet., 626, 627. In this case that person looked, evidently, as he had a right to look, into the demands made on him by the city, in the contract for the same work, previously entered into, to ascertain what were the necessary parts of the stone arch which he had agreed with Denmead to put up. He found that contract required wing-walls, and he put up wing-walls to the arch constructed under the contract entered into with Denmead. He found that contract required such an arch as would carry the dirt of the street, and he therefore added to the supports of the arch, built under the contract with Denmead, such additional material as in his judgment was necessary to secure this arch and [**19]  enable it to accomplish its proper object. If the jury were of opinion, from the testimony, and it seems that they were, that these increased abutments and these wing-walls added to the necessary security of the arch, and properly aided the purpose of its construction, then the defendant was bound to pay for such additional labor, whether he had directly authorized it or not, or whether it was included in the contract made with Coburn or not, because, as we have said, he had placed himself in the position of the city by his voluntary act, and was, therefore, bound to perform the duties of the city to Eager street, which is and was a common highway. Whatever was done by another to perform his obligation, was done for his advantage. Besides this, was not the jury authorized to find from the fact, that this work was being done across the very race of Denmead's mill, under a contract made with him, that he knew that it was being done? The Court of Appeals cannot say that this circumstance afforded no evidence to the jury. There was, moreover, evidence as to what was reasonable compensation for this extra work, for it was supplied by Dushane by his measurements.

The third prayer of [**20]  the appellee was one which the court granted for the guidance of the jury in the event they should not find that the appellee had complied with his contract, but should find that materials belonging to the appellee had been used by the appellant in building the arch under the contract with Oliver. It is evident from the verdict that the prayer did not mislead the jury, and it must be construed by the Court of Appeals, with this fact in view, and, therefore, in favor of the construction given by the appellee. The rule of interpretation in case of an appeal is always in favor of that construction which will maintain the judgment.

The appellee further contends that, the court below was right in refusing to grant the defendant's fourth prayer. This prayer admits hypothetically that there was no defect of workmanship, plan or materials, and that the fall was occasioned by the improper dumping of the earth by the city authorities, but denies the plaintiff's right to recover, if the injury was done while the arch was in course of construction, and before it was completed. Now, the claim of the plaintiff was made up of three distinct items, not necessarily connected with each other, and [**21]  quite capable of being separated in the finding of the jury. 1st. The putting up of an arch of specified dimensions, for which payment was to be made at rates also specified in a written contract. 2nd. For extra work, for which compensation was sought upon a quantum meruit. 3rd. For materials belonging to the plaintiff, subsequently taken and used by the defendant, after the fall of the arch, also the subject of a quantum meruit. The vice, then, of the defendant's fourth prayer is, that while it rests upon a supposed obligation of the written contract, and, if proper, to be granted under any circumstances, would be applicable to the first item of the account only, being that arising under such contract, yet it restrains the jury, not only from finding such item in the plaintiff's favor, but also the other items for extra work and materials, with which the written contract has nothing to do. The court below, therefore, were right in refusing to grant it. And again, the court were right, because the fourth prayer makes the plaintiff the insurer against the consequences of the city contractors, when, in point of law, the duty of preventing their interference with the work devolved, not [**22]  on the appellee, but on the appellant, who when he assumed the execution of a duty, which the law devolved on the corporation, was, by implication of law, bound to prevent the corporation, or its agents, from interfering with or preventing the work which he had agreed that the appellee should do. And indeed, if it appeared to the jury that the appellee was prevented from executing his contract by no fault of his own, but by the fault of the agents of the corporation, whose duties the appellant had undertaken to perform, the jury were at liberty to regard the contract of the appellee as completely executed by him. Addison on Contracts, 205; Lancashire vs. Killingworth, 1 Ld. Raym., 686, and same case in 3 Salk., 343.

In conclusion, it is insisted that the true law of this case, which affords substantial support to the appellee's prayers, and a substantial answer to the prayer of the appellant, is this: the appellant took the funds of the city and assumed the responsibility of contracting to build an arch to support a public highway, which arch the city was bound to construct. He placed himself, therefore, in the same position which the city would have occupied, had it contracted [**23]  with Coburn to do this work. Could it be pretended, if, under these circumstances, the servants of the city had broken down the arch, by their carelessness, either in the course of its erection, or after its erection, that the city could have defended itself in a suit brought against it by the contractor, by the plea that the arch was broken down, if it was proved that its own servants had broken it? Surely it could not. And Denmead is in no better position. When he assumed a work that, under the law, ought to have been executed by contract with the city, he undertook, by inference of law, to prevent all hindrances from the city of the execution of the contract, which he had made, for himself in name, but, in reality, on its behalf. And if, in such case, the jury found that the work so done by the party contracting with Denmead, did not fail because of imperfect work, or bad material, but because of the fault of the agents of the very city whom Denmead represented, how could the jury be told to find that the person doing that work was not entitled to recover for what he had really done? Yet this is what the fourth prayer of the appellant asked.

The appellant has not only asked [**24]  that judgment should be reversed in this case, but that a procedendo should be refused. The action is, as the court has seen, on the common counts. The witness for the appellant proves that some of the materials belonging to the appellee were used by Oliver, as the agent and contractor for the appellant, in rebuilding the arch. For these materials the appellee would, in any event be entitled to recover on the common counts.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*42]  LE GRAND, C. J., delivered the opinion of this court.
This is an action of indebitatus assumpsit, for work and 

 [*43]  labor, brought by the appellee against the appellant, to recover the sum of $ 963.71. The principal facts of the case may be thus stated: The appellant had a mill race which flowed under Eager street, in the city of Baltimore, at the time when the city determined to fill up said street and extend it across Jones' Falls. To enable it to do this effectively, it was necessary the mill race of the appellant should be arched over under the bed of the street, and accordingly the proper officer of the city entered into a contract with the appellee [**25]  to build the arch for a specified price. Subsequently an arrangement was entered into between the city commissioner and the Messrs. Denmead, by which the sum agreed to be paid to the appellee, for the building of the arch, should be allowed to the Messrs. Denmead, they agreeing to have an arch placed over the mill race of a superior character to the one contemplated in the original contract with the appellee, and to be liable for any additional sum which it might cost, it being, also, a part of the said agreement that the appellee should do the work. Because of this understanding with the city commissioner, the agreement of date 22nd November 1852, was entered into. The evidence shows that whilst the arch was in the course of construction, a Mr. Crey, in fulfilment of a contract with the city, was engaged in filling up and extending Eager street to the margin of Jones' Falls, and, of course, over the race of the appellant. Over this contractor neither the appellant nor appellee had any control, he being subject only to the city commissioner. Before the arch was completed that portion of it which was done gave way. This was owing, according to the opinion of different witnesses, to [**26]  different causes; in the judgment of some of them, to the inferior character of the materials used and workmanship; in that of others, to the manner in which Crey, the contractor for filling up Eager street, caused the earth used for that purpose to be "dumped" down against the arch. There was sufficient evidence to go to the jury to sustain either theory.
After the arch had fallen, the appellee was notified that he had not fulfilled his contract, and subsequently it was rebuilt 

 [*44]  by a Mr. Oliver, employed for that purpose by the Messrs. Denmead. In the rebuilding, according to the testimony of the builder, a small portion of the material which was in the former arch was used in the reconstruction. The claim of the appellee is for the building of the arch, extra work, and materials. During the progress of the work the appellee received on account, and in part payment, $ 150.
On the evidence, the plaintiff offered three prayers, which were granted, and the defendant four, the first three of which were granted, and the fourth rejected.
There is no special count in the declaration on the contract; if any recovery be had it must be, because the work under the contract was fully [**27]  performed and accepted by the parties for whom it was done, or, that the contract was abandoned by the consent of the parties to it, or, that by some act of the party sought to be charged, the fulfilment of the contract was prevented. There is no evidence in the record that the work contracted for was completed, nor of the abandonment of the contract, nor of any act of the defendant by which the plaintiff was interfered with in the prosecution of his work. This being so, the authorities are clear, that there can be no recovery in this action for the work done on the arch. See Ellicott vs. Peterson, 4 Md. 476. The Chesapeake & Ohio Canal Co. vs. Knapp, and others, 9 Peters, S. C. Rep. 541.
From what we have said it follows, that we are of opinion the court erred in granting the first and second prayers of the plaintiff. It is clear, from all the evidence in the case, that the work fell down from one of two causes, either because of its inherent defectiveness, or because of the manner of "dumping" down, by the contractor Crey, of the earth against it, and whether it be the one or the other, the defendant is not liable. What was contracted for was an [**28]  arch suitable to the purposes for which it was intended. If the plaintiff did not build such an one he did not do that which he had engaged to do. If his work was destroyed by the acts of Crey, without any fault of the defendant, then his remedy is against him, or against the city, if Crey was its 

 [*45]  agent, if he be entitled to any against any party, under the particular circumstances of his case, in regard to which, however, we deem it improper to express an opinion. Delmonico vs. The Mayor, &c. of the City of New York, 1 Sandford's S. C. Rep., 226. The defendant had no control over Crey any more than over any other third party, and in justice should not be held responsible for his acts. We do not think there is sufficient evidence to justify the jury in inferring any assent, on the part of the defendant, to any extra work or departure from the terms of the contract. The plaintiff had agreed to build an arch of a particular character. It ought to be presumed that before he entered into the agreement he viewed the place where it was to be located, and that he calculated all the difficulties likely to be encountered, and, inasmuch as his contract bound him to do the [**29]  thing contracted to be done, it imposed upon him the obligation to do all indispensable to that end. Apart from the form of the appellant's fourth prayer, from what has been remarked, it follows that we are of opinion it was correct. It asserted the true principle, but was properly rejected, because it assumed facts, which, according to former decisions of this and the late Court of Appeals, ought to have been found by the jury. The same reasoning applies to the plaintiff's third prayer. Whilst it correctly declares the right of the plaintiff to recover the value of any materials belonging to him which were used by Mr. Oliver in the rebuilding of the arch, it fails to require of the jury to find any such materials were used.
We reverse the judgment of the court below.
Judgment reversed. 

143 of 196 DOCUMENTS 

ROBERT MOORE and CHAS. MOORE, garnishees of BENJ. W. QUINLAN vs. JOHN HEANEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 558; 1860 Md. LEXIS 1 

January 10, 1860, Decided 

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

Attachment on judgment issued at the instance of the appellee and laid in the hands of the appellants, and Chas. Moore, trading under the name and style of Robert Moore & Brother, as garnishees. The facts of the case, and the rulings of the court below, (MARSHALL, J.,) are sufficiently stated in the opinion of this court.  

DISPOSITION:
Judgment reversed, without a procedendo.  

HEADNOTES:

By a written contract, Q. agreed, "for the consideration of five per cent. on the entire amount of cost of said building, to erect, superintend and otherwise direct the erection of" a certain warehouse, for the other parties to the contract. HELD:

That Q. was an "employee," and the "five per cent." compensation, mentioned in this contract, are "wages or hire," within the meaning of the Act of 1854, ch. 23, which exempts from attachment "the wages or hire of a laborer, or other employee, in the hands of the employers," not actually due at the date of the attachment. 

COUNSEL:
P. McLaughlin, for the appellants, argued that the money earned by Quinlan for superintending the work, under the the contract of the 29th of February, 1856, though named as a per centage on the cost of the work, is wages, and not liable to be attached if earned after the laying of the attachment in the hands of the garnishees, and that Quinlan was a laborer or employee, within the meaning of the Acts of 1852, ch. 340, and 1854, ch. 23, the latter of which exempts from attachment the wages or hire of any laborer or other employee in the hands of his employer, which are not actually due at the date of the attachment.

T. P. Scott, for the appellee, argued that the compensation of "five per cent. on the entire amount of said building," which was to be paid to Quinlan under [**2]  his contract with the appellants, for his services in superintending and directing the work, is not such wages or hire, as are protected from attachment under the provisions of the Acts of 1852, ch. 340, and 1854, ch. 23.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*559]  ECCLESTON, J., delivered the opinion of this court.
John Heany, the appellee, who was plaintiff below, obtained a judgment in the Court of Common Pleas for the City of Baltimore, at September term 1854, against Benjamin W. Quinlan. Upon this judgment an attachment was issued on the 4th of March 1856, and on the 17th of the same month was laid in the hands of "Robert Moore, Charles Moore and Samuel Moore, trading under the name and style of Robert Moore and Brothers, as appears by the Sheriff's return. At September term 1856, the three Moores appeared and jointly pleaded nulla bona, upon which issue was taken.
The plaintiff filed interrogatories, to which the three Moores answered that they were not indebted to Quinlan at the time 

 [*560]  the attachment was laid in their hands, and that he was not then, and had not since been, in their employment.  [**3]  
The case was tried at May term 1857, when the jury rendered a verdict for the plaintiff for $ 95.58, against Robert Moore and Charles Moore, and in favor of Samuel Moore against the plaintiff. Judgments were entered accordingly, and Robert and Charles Moore appealed.
The plaintiff's right to recover under the attachment is based upon an alleged indebtedness from the garnishees, or some of them, to the defendant, under and in virtue of the following contract:
"Agreement for the erection of a three story warehouse, made this twenty-ninth day of February 1856, between B. W. Quinlan, on the one part, and Robert Moore and Charles Moore, trading under the style of Robert Moore & Bro., on the other part. B. W. Quinlan agrees, for the consideration of five per cent. on the entire amount of cost of said building, to erect, superintend, and otherwise direct, the erection of the said three story building, to be situated on the rear of store No. 223, Baltimore street, and further, that the work shall be done in a substantial and workmanlike manner, with as little cost and delay as possible, the said Robert Moore & Bro. to find all the materials and pay for the same, and it is understood that [**4]  the said Quinlan shall not purchase any materials or contract for any work for the said building, without the consent of the said Moore & Bro., as to amount, quality and persons or person, of whom said materials are to be bought; and the said Quinlan agrees not to employ any workman or workmen but those who give satisfaction to the said Moore & Bro., as to their ability, sobriety and diligence, the said Moore & Bro. agreeing to pay said Quinlan for his workman or his workmen in person, the amount of their wages, from week to week, at the expiration of each week, and it is expressly agreed that no workman shall be left in arrear for work done on the said building, but every man must be paid in full for work done at the end of every week, and it is agreed that these articles of agreement be in force from the date of commencing to tear down the old building; and further, that nothing 

 [*561]  is due the said B. W. Quinlan until the entire work on the building is completed.
Robert Moore & Bro.
B. W. Quinlan."
The garnishees submitted four prayers, all of which the court refused, and gave the following instruction to the jury:
"If the jury find from the evidence in the cause,  [**5]  that the defendant in the attachment made the contract which has been read in evidence, with the garnishees, or any or either them, as traders under the firm of Robert Moore & Brother, and that the defendant executed the said contract, and that there was due, or paid to the defendant, from the garnishees, or any or either of them, as co-partners, trading under the said style or firm, any sum of money after the issue of the writ of attachment in this case upon the account of the execution of the said contract, then the jury will find for the plaintiff the amount which they may find to have become so due, or to have been so paid, against such of the garnishees as they may find to have been co-partners of the said firm and parties to the said contract, provided, nevertheless, and the jury must so consider, that the opinion of the court is, that no moneys paid under the contract to or for the workmen or laborers employed by the defendant, or lumber, or other materials purchased and paid for by the garnishees through the defendant and used in the execution of the contract, is to be taken or deemed money subject to this attachment, or liable to be claimed of the garnishees as money due to [**6]  or payable to the defendant."
The appellants' counsel insists that the court's instruction should not have been given, because the provisions of the Act of 1854, ch. 23, rendered the attachment in this case illegal and inoperative.
That act provides, "That no attachment of the wages or hire of a laborer or other employee, in the hands of the employers, whether private individuals, or bodies corporate, shall affect any salary or wages of the debtor, which are not actually due at the date of the attachment."
The title shows this to be amendatory of the Act of 1852, ch. 340, which enacts:
"That from and after the first day of July next, the wages 

 [*562]  or hire of any laborer or other employee, in the hands of the the employer, when such wages or hire shall not exceed the sum of ten dollars, and when the amount of such wages or hire shall exceed the said sum, then ten dollars of the amount of such wages or hire shall be exempted from attachment, whether on warrant or on judgment."
The Act of 1852 protected wages or hire to the amount of ten dollars, only, but that amount was exempted, whether it was due before, or became due after, an attachment. The Act of 1854 makes no provision [**7]  in relation to wages or hire due at the time of an attachment, and, of course, leaves them still regulated by the previous law. But the last Act makes a very important change in favor of laborers and other employees, in regard to wages or hire becoming due after an attachment, as it exempts all not actually due at the date thereof.
There is no proof that the garnishees, or any or either of them, owed anything to Quinlan, at the time of the attachment; and if there is any evidence tending to show an indebtedness, at any time, it was an indebtedness subsequent to the attachment, and arising under the contract which has been mentioned.
Now, if Quinlan can be considered either a laborer or an employee, and the five per cent., mentioned in the contract, can also be considered wages or hire, within the meaning of the Act of 1854, then the plaintiff had no right to attach the five per cent., or any part of it.
We suppose, it cannot be seriously contended that Quinlan was not an employee. He surely was employed by Robert Moore & Brother, to erect and superintend the building contemplated in the contract.
With reference to the persons entitled to exemption under the laws referred to,  [**8]  can it be a proper construction of those laws, to say, the Legislature intended to include laborers, only when the language used is, "a laborer or other employee?" A laborer, when engaged in service, under contract for compensation, is an employee, but after saying a "laborer" there is added, "or other employee." Surely, in this was meant more than a laborer, or else, why, after using that 

 [*563]  word, add those which follow? If they only mean persons who are included within the meaning of the word laborer, they are mere tautology and useless.
In consideration of erecting and superintending the building, mentioned in the contract, Quinlan was to receive, as compensation for his services, five per cent. upon the cost of the building. And this five per cent., in our opinion, should be regarded as his "wages or hire."
In 6 Jacob's Law Dic., 382, and 3 Tomlin's Law Dic., 655, "wages" are said to be, "The reward agreed upon by a master to be paid to a servant, or any other person which he hires to do business for him."
In addition to the above, as showing the meaning of the words "wages and hire," we refer to the definitions given of them by the following lexicographers:  [**9]  --Todd, Johnson, Walker, Richardson and Webster.
According to our construction of the Act of 1854, no part of the money which became due to Quinlan after the date of the attachment could be attached in the hands of his employers. The instruction given by the court below, being inconsistent with this view of the subject, must be regarded as erroneous; and the judgment appealed from will be reversed, without ordering a procedendo. It therefore becomes unnecessary to notice the prayers offered and refused, or any subjects discussed in argument, which have not been mentioned in this opinion.
Judgment reversed, without a procedendo. 

144 of 196 DOCUMENTS 

ELISHA WARFORD and others, Lessee, vs. RICHARD COLVIN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 532; 1859 Md. LEXIS 92 

August 13, 1859, Decided 

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

Ejectment for various pieces or lots of ground in the city of Baltimore, brought on the 24th of April 1856. Plea, non cul. The lessors of the plaintiffs, (the appellants) claimed title as heirs at law of Rachel Colvin, deceased, and the defendant (the appellee) claimed as devisee under her will, executed on the 6th of April 1848.

Exception. It was admitted that Rachel Colvin died seized of the property in dispute, and the lessors of the plaintiff offered evidence tending to prove they were her heirs at law, and then rested. The defendant then offered in evidence a copy of the last will and testament of the said Rachel Colvin, bearing date the 6th of April 1848, and of the probate thereof duly certified under the official seal of the Register of Wills of Baltimore city. This will disposed both of real and personal property, and by it the testatrix appointed the defendant, Richard Colvin, her sole executor, and made him the sole residuary devisee and legatee of both her real and personal estate. The defendants also offered in evidence certain proceedings in the Orphans Court of Baltimore city, from which it appears that when [**2]  this will was propounded for probate in that court by the executor, certain parties, including the lessors of the plaintiff, as next of kin and heirs at law of Rachel Colvin, filed petitions or caveats against admitting it to probate, which were answered by the executor, and thereupon certain issues were framed and sent by that court to the Superior Court of Baltimore city for trial, among which were the following:

"1st. Whether the said instrument of writing, purporting to be a will of Rachel Colvin, dated the 6th day of April 1848, was executed and published by the said Rachel Colvin as her last will and testament, when she was of sound and disposing mind and capable of executing a valid deed or contract.

"2nd. Whether the said instrument of writing, purporting to be a will of said Rachel Colvin, dated the 6th day of April 1848, was executed by the said Rachel Colvin under the influence of suggestions and importunities of some person or persons when her mind, from its diseased and enfeebled state, was unable to resist the same."

The Orphans court directed that at the trial of these issues, the parties filing the petitions or caveats should be plaintiffs and Richard [**3]  Colvin defendant. Upon suggestion that an impartial trial could not be had in the Superior court, the record containing the proceedings was transmitted to the Circuit court for Baltimore county, and, upon trial there, the jury found in favor of the caveatee upon all the issues. At this trial, exceptions were reserved by the caveators to several rulings of the court, and an appeal was taken by them, and these rulings were affirmed by the Court of Appeals. (7 Md. Rep., 582.) The Orphans Court of Baltimore City then rendered a final decree, confirming the findings of the jury on all the issues, and ordered and directed this will to be admitted to probate as the last will and testament of the said Rachel Colvin.

The defendant further proved that after these proceedings were had in these several courts, he entered into possession of the property now in dispute, as devisee under said will, and has thenceforth remained, and now is in the possession of the same. It was admitted that the now lessors of the plaintiffs are all of them some of the same persons who were the caveators to the will mentioned in the above proceedings, and that the now defendant is the same person who was the caveatee [**4]  named in said proceedings.

The defendant, by his counsel, then maintained and insisted and prayed the court to instruct the jury, that the proceedings so as aforesaid given in evidence are, as against the lessors of the plaintiff, not merely prima facie but conclusive evidence that the paper writing set out in said proceedings, purporting to be the will of said Rachel Colvin, dated the 6th of April 1848, was executed and published by the said Rachel Colvin as her last will and testament, and when she was of sound and disposing mind, and capable of executing a valid deed or contract, and that the same was not executed by the said Rachel Colvin under the influence of suggestions and importunities of some person or persons, when her mind, from its diseased or enfeebled condition, was unable to resist the same.

This instruction the court (LEE, J.) granted, and to this ruling the lessors of the plaintiff excepted, and the verdict and judgment being against them, appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

Probate of a will disposing of both real and personal property is, as to the personalty, final and conclusive, but since the Act of 1831, ch. 315, and upon the true construction thereof in connection with previous legislation on the same subject, such probate, whether in common form or on plenary proceedings by allegation, answer and proof, or on the finding of a jury upon issues sent to a court of law for trial, is, as to the realty, but prima facie evidence of the validity of the will; the heir at law may bring his ejectment for the land notwithstanding such probate.

Probate means proof of the will by the proper tribunal, and the law gives effect to the probate without reference to the manner of admitting the will to record.

The obvious purpose of granting issues is to enable the orphans court to advertise itself of the real facts of the case, which, when ascertained are the basis of the court's final action in admitting or rejecting the will.

The finding of a jury on issues amounts to nothing till acted on by the court which has power to admit or reject the paper; it has, in the absence of a final, effective act of the court itself, on the whole case, no greater force than the evidence of witnesses rendered in the orphans court on plenary proceedings.

The verdict of the jury on certain issues cannot be segregated from the rest of the proceedings, and relied on as conclusive as to the facts so found, when the order of the court, acting on such finding, and admitting the will to probate, by a final act of jurisdiction, would be merely prima facie evidence of the will.

One portion of the record cannot be so segregated from the rest as to give greater effect to a part than the whole would be entitled to, if relied upon as the final judgment of the court upon the subject matter.

The issues at law are merely in aid of the jurisdiction of the orphans court, and the affirmance by the Court of Appeals, of the rulings of the court of law upon the trial of such issues, adds nothing to the force of the proceeding as a judicial act; it is all the while a proceeding within the probate powers of the orphans court.

When the Act of 1831, ch. 315, speaks of probate, it is to be understood as referring to the act of the court or register, as the case may be, and not to any part of the proceedings on which the probate may be allowed.  

COUNSEL:
G. L. Dulany and Wm. Price for the appellants.

1st. The rule rendering a former judgment conclusive requires four things: 1st. That it should be directly [**5]  upon the point. 2nd. That the same point be involved in the second suit. 3rd. That the parties be the same. 4th. That the former judgment be not only direct, but also final and conclusive, in the court of which it is a judgment, upon the subject matter. 1 Starkie's Ev., (Ed. of 1826,) 190, 205. 3 Cow. & Hill's notes to Phill. Ev., (2nd Ed.,) page 826, note 586. 5 H. & J., 42, Wicke's Lessee vs. Caulk. 7 Martin's Lou. Rep., 274, Abat, et al., vs. Songy's Estate. In the present case the third requisite is wanting, the parties not being the same, for in the former suit Richard Colvin was sued as executor by the appellants as distributees, while here he is sued as devisee by the appellants as heirs at law, and different capacities constitute different persons. 2 Bland, 445, Tilly vs. Tilly. Ibid., 108, Binney's Case. 1 Starkie's Ev., 201. Select Cases in Chan., 30, Coppin vs. Coppin, and same cases in 2 Peere Wms., 295. 1 Eq. Cases Abr., 8, Meliorucchi vs. Royal Exchange Assurance Co. 1 Ves. Sen., 283, Johnson vs. Mills. Anstr., 477, Ward vs. Northumberland. 7 Term. Rep., 350, Rann vs. Hughes.

2nd. Nor is the judgment by the orphans court granting probate conclusive in the case of [**6]  real estate. In England, during the Saxon supremacy, there was no distinction whatever between the lay and ecclesiastical jurisdiction. The County Court, over which presided the Bishop of the Diocese, and the Aldermen, or in his absence the Sheriff of the county determined all causes, whether civil or spiritual. But after the Conquest, William the Norman willing to gratify the monasteries and foreign clergy, who had warmly espoused his title, separated the two jurisdictions and ordered that all ecclesiastical questions should be thereafter tried before the Bishop alone. The old system was restored by Henry I. upon his accession to the throne. It continued however but a short time, having been overthrown by a synod convened at Westminster, in the third year of this king's reign, which ordained that no Bishop should attend the discussion of temporal causes. The separation being thus rendered final and complete, the clergy began to consider in what way they might increase the power of their courts. By that charter of the Conqueror, which introduced the new distribution of justice, it had been expressly declared that the spiritual courts should entertain jurisdiction over all bequests [**7]  to pious uses. Afterwards when Henry I. was induced to direct in his coronation charter, that the goods of an intestate should be divided pro salute animae, this immediately made all intestacies ecclesiastical causes as much as bequests to pious uses had been before. As the ecclesiastical courts had thus the disposition of intestates' effects, the probate of wills of course followed; for it was thought just and natural that the will of the deceased should be proved to the satisfaction of the prelate, whose right of distributing his chattels for the good of his soul was superseded thereby. These encroachments upon their ancient jurisdiction were viewed with great jealousy by the ordinary tribunals of the realm, and where a will was of a mixed nature, concerning both real and personal property they absolutely prohibited the ecclesiastical courts from taking any probate. Afterwards prohibitions quoad the real estate were granted. But at length the spiritual courts were allowed to take probate of wills disposing of both real and personal property, but the probate, so far as lands were concerned, was rejected by the common law courts as being no evidence. 2 Bl. Com., 494. 3 Do., 61, to [**8]  97, Bac. Abr. Tit. Ecclesiastical Courts. 2 Greenlf. on Ev., sec. 672. 1 H. & McH., 419, 423, Smith's Lessee vs. Steele. About the time the law was settled as above stated, the first testamentary acts were passed in this State, and the same construction prevailed here, that the commissary under the acts should proceed to take probate of the will although it contained a disposition of real estate. By the Act of 1715, ch. 59, sec. 2, the powers of the probate judge were carried a step further than in the mother country, for by it he was authorized to take probate or caused to be proved any last will or testament within the province, although the "same concerned title to lands." 1 H. & McH., 423. 2 Bland, 86. With respect, however, to the effect to be given to the probate of a will containing a disposition of real estate there is some difference between the law of England and that of Maryland. There, as we have seen, such a probate, so far as the realty is concerned, has no effect whatever, but in this State it has always been considered prima facie evidence, but it has never been held to be conclusive. 2 Bland, 86, Towshend vs. Duncan. 1 H. & McH., 419, Smith's Lessee vs. Steele. Ibid.  [**9]  , 262, Carroll's Lessee vs. Llewellin. 4 H. & J., 141, Massey vs. Massey. 1 H. & J., 533, Cheney vs. Watkins. 3 Bland, 479, 481, Randall vs. Hodges These cases, with the exception of the last cited, were decided prior to the Act of 1831, ch. 315, by the first section of which it is expressly declared that the probate of a will, so far as it relates to real estate, shall be "only prima facie evidence" of its validity, and they show that even prior to that Act it was the settled law of this State--settled by the decision in Massey vs. Massey--that probate of a will is but prima facie evidence in favor the devisee, as against the heir at law. See also as to the construction of the Act of 1798, the case of Darby vs. Mayer, 10 Wheat., 470, 471.

3rd. The fact that probate was decreed in conformity with the finding of a jury upon issues transmitted from the orphans court cannot render it any more conclusive. The practice of directing issues is borrowed from chancery and Ecclesiastical Courts, and existed in this State prior to any legislative action on the subject (4 Md. Rep., 394, Pegg, et al., vs. Warford.) It is now regulated by the Act of 1798, ch. 101, sub. ch. 15, secs. 16, 17,  [**10]  and sub. ch. 8, sec. 20. By these sections the orphans court in all plenary proceedings, upon the requisition of either party is bound to make up issues and transmit them to a court of law, where the same proceedings are to be had as in the case of a suit originally instituted therein, and a certificate of the court or any judge thereof, under the seal of the court, of the finding of the jury, is made obligatory upon the orphans court. Now, there is nothing whatever in these sections from which even a presumption can be deduced that it was the intention of the Legislature to increase by the provisions contained therein, the jurisdiction of the orphans courts. The objects for which they were enacted was simply to enable those tribunals to advertise themselves of the facts involved in cases properly falling within their cognizance, (4 Md. Rep., 393,) and the reason why the same privileges were extended to the parties in the trial of issues, to which they were entitled in cases where the suit had been originally commenced in the court of law, was, because the Act having made it incumbent upon the orphans court to take the verdict of the jury as conclusive upon the facts thereby found,  [**11]  there would have been a great defect in the administration of justice, if every precaution known to the law had not been provided which might conduce to a proper ascertainment of those facts. 1 Binney, 446, 447, Vasnant vs. Boileau. Prior to the passage of the Act of 1798, or, at least, the law of 1777, ch. 8, sec. 9, the orphans court was not bound by a single verdict any more than a court of Equity. 4 Md. Rep., 393. But granting the presumption to be a probable one, yet it would be overthrown by sub. ch. 15, sec. 20, which declares that the orphans court "shall not under pretext of incidental powers, or constructive authority, exercise any jurisdiction whatever, not expressly given by this Act, or some other law." In Scott vs. Burch, 6 H. & J., 79, Dorsey, J., after having noticed this provision, proceeds to remark: "To avoid the necessity of a recurrence to incidental authority, the powers of the orphans court, both in relation to the subject-matter of its jurisdiction and the forms of its proceeding, are declared with the most formal and precise minuteness." But, apart from any, express limitation, orphans courts are confessedly limited and inferior jurisdictions; to a great extent [**12]  the mere creatures of the Legislature, being indebted to express statutory enactments for the most minute and subordinate details of the process necessary to the exercise of their legitimate functions; in short, for every power deemed strictly incidental to other tribunals. 6 H. & J., 67, 79, Scott vs. Burch. 2 H. & G., 122, Brodess vs. Thompson. 9 Gill, 91, Townshend vs. Brooke. 4 Md. Ch. Dec., 452, Conner vs. Ogle. 6 Md. Rep., 352, Lowe vs. Lowe. And such appears to be the law with regard to probate courts in other States. 4 Cow. & Hill's Notes to Phill. Ev., (3rd Ed.) p. 64, note 42. But there is still another light in which this subject may be viewed. If the doctrine that the Legislature, by the provisions contained in the Act of 1798, intended inferentially to increase the jurisdiction of the orphans courts be allowed to prevail, then the common law courts, by a mere presumption, would be stripped of a portion of their authority contrary to the well recognized principle that the jurisdiction of superior courts cannot be divested or abridged, except by the express negative words of a statute, or, at least, by express terms or necessary implications. 3 Yeates, 480, Burginhofen vs.  [**13]  Martin. 2 Sergt. & Rawle, 363, Overseers vs. Smith. 1 Gill, 349, Tomlinson's Lessee vs. Devore. 2 Rawle, 369, Commonwealth vs. M'Closkey. 4 Term. Rep., 116, Shipman vs. Henbest. The question, therefore, is at last a question of jurisdiction. The trial of issues gives no greater effect to the probate than it would have if made in any other way, for in a trial of issues by a court of law, the court trying them is still acting within the jurisdiction of the court which grants them, and the fact that an appeal is allowed, in no way enlarges that jurisdiction--the appellate court in deciding such an appeal is still acting within the jurisdiction of the orphans court. 1 Gill, 29, Stevenson vs. Reigart.

4th. If the transmission of issues can render a decree of the orphans court, granting probate, conclusive, then, by parity of reason, in cases of accounts, and in all other cases where the judgment of that court is only prima facie it might be made conclusive, simply by making up issues to be tried. But even if it were granted, that in the case of accounts, the fact that there were issues, could give greater efficacy to the action of the orphans court, yet it would not follow that the [**14]  same would hold with reference to the probate of a will devising real estate, because such probate by the express terms of the Act of 1831, ch. 313, sec. 1, is made "only" prima facie evidence. With respect to this Act it is to be observed, that it is not merely declaratory of the law as it existed previously to its passage. The insertion of the word "only" makes it restrictive in its character. The object of the Legislature seems to have been to prevent encroachments, under any pretext whatever, of the orphans court upon the jurisdiction of the courts of common law. It should therefore be interpreted in such a way as most effectually to accomplish this purpose. Now, "probate" being a technical word according to a well established rule of construction must be interpreted in its technical sense. What then is its legal meaning? When thus used it signifies a copy of the original will under the seal of the court, with a certificate of its having been duly proved. 3 Bland, 479, Randall vs. Hodges. 2 Bl. Com., 508. 1 Jarman on Wills, 211, 213. 1 Starkie's Ev., (Ed. of 1826,) 247. The definition of a word may always be substituted in the place of a word itself. This substitution being made [**15]  in the present instance, the Act of Assembly will read: "A copy of an original will, under the seal of the court with a certificate of its having been duly proved, shall be taken and deemed only as prima facie evidence." This copy, however, cannot be granted until every thing respecting either the validity or execution of the will has been settled. It has nothing, therefore, to do with the manner in which the court may come to a conclusion upon these points. Such being the case, whether the orphans court have determined that the will is valid and properly executed, unassisted by any other tribunal, or have resorted to a court of common law, for the purpose of acquiring more full information concerning the facts of the case, can make no difference in the signification of the word "probate." This Act of 1831 was carefully drawn. Its primary object was not simply to confer upon the orphans court power to take probate of wills of realty, but to subject executors who have power given them by wills to sell real estate, to the jurisdiction of the Orphans court, and it confers the power of taking probates of wills of realty as an additional power commensurate with the new jurisdiction thus [**16]  given to the orphans court, and it does this for the protection of executors. By its first section it affirms: 1st, that probate before this Act established wills of personalty only; 2nd, that prior to this Act probate did not establish a will as to realty; and 3rd, that the orphans court prior to this Act had no power to establish a will as to realty. It then establishes a new rule and confers a new power, viz: that the orphans court may take probate of a will of realty, but makes such probate prima facie evidence only. These latter words cannot be reasoned out of the statute--such probate is prima facie evidence only, which means that it is good till the heir at law comes to dispute it. If issues as to the validity of a will of realty sent from the orphans court for trial are conclusive when the finding of the jury on them is certified, what becomes of the issue of devisavit vel non? It is forever gone: and yet the 16th section of this Act provides for the issue of devisavit vel non, notwithstanding the probate of the orphans court. This law also provides for the deposit of the original will in the orphans court, and for the production thereof in any issue of devisavit vel non, or [**17]  in any other action at law, which must mean in any action of ejectment brought by the heir at law, for such an action is a local action, which may be brought in a different county from that in which the will may be deposited. There is nothing in this Act confining the effect of the probate to such as are taken before the register, or before the court without contest: it applies to all cases of probate. 12 Md. Rep., 158, Michael vs. Baker.

5th. It has been expressly decided that the judgment of a probate court granting probate in conformity with the finding of a jury upon issues, is no bar to an action of ejectment subsequently brought by the heir or devisee to try the title to real estate. 4 McCord, 217, Crosland's Exc'rs vs. Murdock. 4 Sergt. & Rawle, 192, Spangler & wife vs. Rambler. 1 Yeates, 87, Walmesley's Lessee vs. Read. 5 Rawle, 80, Smith vs. Bonsall. The Pennsylvania authorities cited are entitled to so much the more weight on account of the close resemblance which the testamentary law of that State bears to that of Maryland with reference to the point now under consideration. There, as here, the probate of a will, so far as real estate is concerned operates only as prima [**18]  facie evidence. (2 Greenlf. on Ev., sec. 672, note 2.) The issues, when found and returned, are obligatory upon the Register's Court, (4 Sergt. & Rawle, 192,) and, lastly, there may be an appeal, as with us, from the court to which the issues are sent to be tried. 1 Binney, 446, 447. It may be well to call the court's attention to the fact that the law upon the subject of the jurisdiction of probate courts, is by no means uniform throughout the country. In perhaps all the States, with the exception of Maryland, New York, New Jersey and South Carolina, these courts possess a jurisdiction concurrent with, and in some, exclusive of the courts of common law. Thus, in Massachusetts, Maine, Vermont, New Hampshire and Michigan, it is expressly provided by statute, that, "No will shall be effectual to pass either real or personal estate, unless it shall be duly proved and allowed in the probate court." Such, also, is the law in Ohio, Rhode Island, and probably in some other States. 1 Jarman on Wills, 211, 214. 2 Greenlf. on Ev., sec. 672 and note. 3 Cow. & Hill's Notes to Phill. Ev., (2 Ed.,) pages 1347 to 1349, note 928, and page 861. It follows, therefore, that cases decided in those States [**19]  where the probate courts have more enlarged powers than with us, cannot be cited as having any effect upon the present question. In Maryland, the right of the heir at law to bring his ejectment, notwithstanding probate of the will, has always been regarded as a sacred right. Since the decision in Massey vs. Massey, no trace of a questioning of this right can be found in all our judicial records, for the reason that both the bar and the bench have regarded that decision as finally and conclusively settling the law of this State in favor of the right. In the trial of an ejectment the heir cannot be concluded or put off by a copy of the will. He has the right to insist upon the production of the original will, so that he may cross-examine all the attesting witnesses to it, for they are the witnesses of the other side; and in such a trial the original will must be produced in court. Gressley's Eq. Ev., 123 to 124. When he comes thus into a court of law--a court of general jurisdiction--its jurisdiction cannot be divested or abridged, nor its hands tied by a decree of a court of inferior jurisdiction. 2 Smith's Lead. Cases, 439, et seq. The heir may bring as many ejectments as he pleases.  [**20]  One trial in a court of law in such an action will not conclude him. In the second ejectment he is not precluded by the verdict of the jury on the facts in the first. 5 H. & J., 245, Hammond vs. Ridgely. The position contended for on the other side would introduce tremendous changes into the law of Maryland in reference to titles to land, and it is submitted that some stronger reasons than those yet adduced, must be brought to the consideration of this court before it will adopt such a view of the law. The orphans court, at one period, had the power to call a jury into that court to try issues. This law was repealed by the Act of 1798, and now either party can require issues to be sent to a court of law for trial. Then, according to the position taken on the other side, the conclusive effect of a judgment of the orphans court will rest upon the caprice of parties, and not upon the jurisdiction of the court itself.

6th. The verdict, when disconnected from the decree of the orphans court, cannot be regarded as a bar, or given in evidence as conclusive of the question thereby determined, because it is an undoubted principle that a verdict without a judgment, or in the case of issues,  [**21]  without a decree, is no evidence whatsoever. Bull. N. P., 234. Gilb. Ev., 38. 3 Carr. & Payne, 192, Godefroy vs. Jay. "The judgment of the court is necessary to the determination of every suit. It is the essential part of the record; the verdict is only the means by which the court are enabled to render judgment." Granting the verdict to be admissible, it would be entitled to very little weight, (Gilb. Ev., 32; 3 Starkie's Eq., (Ed. of 1826,) page 1279,) but it cannot be given in evidence apart from the decree. For the sole object of issues being to enable the orphans court to advertise itself of the real facts of the case, (4 Md. Rep., 393,) and they being regarded as a part of the proceedings of that court, (1 Jarman on Wills, 222; Jeremy's Eq. Pl., 296, 297; 11 Ves., 509, Bootle vs. Blundell; 1 Mood. & Malk., 109 to 111, Highfield vs. Peake,) it follows that the verdict and decree must be taken together, and that the former cannot be separated from the latter any more than the verdict from the judgment, where a case is wholly before a court of common law. See, also, on this point, 6 How., 68, Van Ness vs. Van Ness. The granting of probate is a judicial act, and in its exercise it [**22]  includes the whole power of the court, and is conclusive upon all subjects and parties within the court's jurisdiction, (Gressley's Eq. Ev., 336, 337; 12 Wheat., 175, Armstrong vs. Lear,) and if the probate or decree itself be not conclusive to disinherit the heir, how can the facts leading to such probate or decree have that effect? The jury have no more power on the trial of issues than the orphans court has when depositions are taken before it on plenary proceedings. The effect of the probate is the same in both cases.

7th. It is a peculiarity of the action of ejectment, that the question involved is not settled by a single trial. If, however, the verdict of the jury, or decree of the orphans court, be conclusive in the present case, the appellants will be deprived of that advantage, and the lands of the heir at law will have passed away even without one ejectment suit, and that, too, by the decision of a court which has no jurisdiction over real estate. But it is a most equitable principle that the action of a court or jury never concludes, if the party is unable to exercise any privilege which he might have had by resorting to a different tribunal, or another form of proceeding.  [**23]  5 Md. Rep., 295, Townshend vs. Townshend. 1 Starkie's Ev., (Ed. of 1826,) page 295. 5 Rawle, 89, Smith vs. Bonsall.

Wm. Schley and Reverdy Johnson for the appellee:

The conceded facts in the case are that the appellants filed in the orphans courts for Baltimore city, caveats to the last will and testament of Rachel Colvin, and issues were sent to the Superior court of Baltimore city for trial, and these issues were removed to and tried in the Circuit Court for Baltimore county. The issues were all found in favor of the caveatee, and the circuit court duly certified that it was satisfied with the finding of the jury and the rulings of that court on the trial of these issues, on appeal taken were in every particular affirmed by the Court of Appeals in 7, Md. Rep., 582. The orphans court for Baltimore city then passed an order confirming the findings of the jury on all the issues, and directed the will of the 6th of April 1848, to be admitted to probate as the testament and last will of Rachel Colvin, and directed that the caveats should be dismissed. The appellants, the lessors of the plaintiff in the present action of ejectment, were all of them parties to the above proceedings [**24]  as caveators, and the appellee was the caveatee. The appellee insisted in the court below that these proceedings were conclusive as against the appellants, that the will of the 6th of April 1848, was executed and published by the said Rachel Colvin as her last will and testament, and when she was of sound and disposing mind and capable of executing a valid deed or contract, and that the same was not executed under the influence or suggestions and importunities, of some person or persons, when her mind, from its diseased or enfeebled state was unable to resist the same, these being facts found by the jury upon the trial of the issues as above stated. The court below sustained this position and we now, in support of the instruction so given insist upon the following propositions:

1st. That the finding of the jury upon issues followed by the judgment thereon of the orphans court, is a final and conclusive adjudication in favor of the validity of the will, binding as a judgment in rem even as against persons not parties to the controversy.

2nd. That even if not to be considered as an adjudication in rem still the finding of the jury and the judgment thereon of the orphans court [**25]  is a final and conclusive adjudication in favor of the validity of the will as against the appellants, as they were parties in fact to the proceedings.

3rd. That at all events, the finding of the jury upon the issues (the same having been the basis of a final judgment in the matter of the plenary proceedings which grew out of the caveats) is conclusive as against the appellants upon the matters of fact involved in said issues, and found by the jury, and the instruction asked for and given goes only to this extent.

It is not necessary, in order to sustain the instruction granted by the court below, that we should establish more than the last of the above propositions, for our prayer does not say that the will is established as against all the world, but it simply says that the finding of a jury upon the trial of the issues is conclusive on the points that the will was duly executed by the testatrix when she was of sound mind and free from undue influence, and conclusive on these points only as against the present appellants, the property, the will and the parties being the same as in the case of the issues, and the parties suing and being sued in the same right then as now.  [**26]  Nor do we contend that under our Acts of Assembly a mere ex-parte probate of a will disposing of both real and personal estate, has anything more than a prima facie effect as to the realty though it is conclusive as to the personalty, for in respect to personalty, both the Acts of Assembly and the decisions of our courts have declared that probate, or refusal of probate, by the orphans court, is conclusive upon all the world. 8 G. & J., 391, Negro John, et al, vs. Mortin.

But where the case is contested on issues sent to a court of law for trial, the verdict of the jury upon these issues is conclusive and binding, as to the facts submitted by the issues and found by the jury, not only upon the orphans court, but "on the whole world." The 16th and 17th secs. of sub. ch. 15, and sec. 20 of sub. ch. 8, of the Act of 1798, ch. 101, provide for the transmission of issues from the orphans court to a court of law for trial, and direct that in the trial of such issues the court of law shall have the same power and shall proceed in the same manner as if the issue or issues were in a suit therein instituted. The principles of law applicable to the trial of issues from the orphans courts,  [**27]  and of issues to be followed by judgments are precisely the same, (9 Gill, 56, Ramsay vs. Glass,) and when the facts are found the orphans court, though having the power to consider other facts and circumstances affecting the question of probate, than those thus found, yet as to these facts it can receive no evidence contradicting them. So far as these facts may affect the question of probate vel non the court has no discretion, but is imperatively required to enter up judgment in conformity thereto, the finding in regard to the facts submitted is conclusive and --binding upon the whole world. 3 Md. Rep., 462, Cain vs. Warford. 4 Md. Rep., 393 to 396, Pegg vs. Warford. Ibid., 399, 400, Warford vs. Van Sickle. 9 Gill, 456, Glass vs. Ramsey.

In view of these legislative provisions and decisions of our own courts, it cannot be doubted that the trial of these issues was had before a court of competent jurisdiction, and that trial having been before a court of competent jurisdiction and the parties thereto being the same as in the present suit, what is the rule of the common law applicable to such a case? In the case of Outram vs. Morewood, 3 East., 346, it was decided that if a verdict [**28]  be found on any fact or title distinctly put in issue, such verdict may be pleaded by way of estoppel in another action between the same parties, or their privies, in respect of the same fact or title. Lord Ellenborough, C. J., there said, that a recovery in any one suit upon issue joined on matter of title is equally conclusive upon the subject matter of such title, and that a finding upon title in trespass not only operates as a bar to the future recovery of damages for a trespass founded on the same injury, but also operates by way of estoppel to any action for an injury to the same supposed right of possession; it is not upon the recovery, but upon the matter alleged by the party and upon which the recovery proceeds which creates the estoppel; the estoppel precludes parties and privies from contending to the contrary of that point or matter of fact, which having been once distinctly put in issue by them, or by those to whom they are privy in estate or law, has been, on such issue joined, solemnly found against them; the question is whether an allegation on record upon which issue has been once taken and found is between the parties taking it and their privies, conclusive according [**29]  to the finding thereof so as to estop the parties respectively from again litigating that fact once so tried and found; none of the cases cited to the contrary negative the conclusiveness of a verdict found on any precise point once put in issue between the same parties or their privies. And in conclusion of that most masterly opinion, he says: "the authorities on the subject of protestation and estoppel, are, in our opinion, as well as upon the reason and convenience of the thing and the analogy of the law in other cases decisive, that the husband and wife, the defendants in this case, are estopped by the former verdict and judgment on the same point in the action of trespass to which the wife was a party, from averring that the coal mines now in question are parcel of the coal mines bargained aud sold by Sir John Zouch." In Kitchen vs. Campbell, 3 Wilson, 308, it was said: "You shall not bring the same cause of action twice to a final determination; nemo debet vis vexari; upon this we found our judgment; and what is meant by the same cause of action is, where the same evidence will support both the actions, although the actions may happen to be grounded on different writs; this is [**30]  the test to know whether a final determination in a former action is a bar or not to a subsequent action, and it runs through all the cases in the books both in real and personal actions." In Hopkins vs. Lee, 6 Wheat., 113, it is laid down as a general rule "that a fact which has been directly tried and decided by a court of competent jurisdiction cannot be contested again between the same parties, in the same or any other court," and that this rule extends to matters litigated before competent tribunals in foreign countries, that it applies to sentences of courts of Admiralty, to ecclesiastical tribunals, and in short to every court which has proper cognizance of the subject matter, so far as they profess to decide the particular matter in dispute. To the same effect are the decisions in 1 How., 148, Bank of U. S., vs. Beverly; 2 How., 108, 110, Porterfield vs. Clark; 5 Sandf., 134, Birckhead vs. Brown; 12 Md. Rep., 550, Beall vs. Brown's Admr., and numerous other authorities which might be adduced to the same point, as well as elementary treatises upon the law of evidence and estoppel. In the notes to Doe vs. Oliver, 2 Smith's Lead. Cases, the authorities are collected and commented [**31]  on: see, also 3 Greenlf. on Ev. sec. 262. The rule to be deduced from all the cases is this: that where the jurisdiction of the court to try the facts is once established, the verdict on those facts, as long as it stands, is conclusive as between the same parties in every other court, and can no longer be contested by them.

Why is not the present case within this rule? By the Act of 1715, ch. 39, sec. 29, the commissaries were authorized to take probate of wills of real estate, and the same power was given to the orphans courts by the Act of 1777, ch. 8, with the additional power to order issues and summon juries for the trial of the same. The Act of 1798, ch. 101, makes provision for every case of a will disposing of personal or real estate; the same testamentary capacity is required in each case, but one standard being fixed, and, as far as capacity is concerned, it makes no difference whether the will be a will disposing of real or personal property. This Act then provides what is to be done with all wills; they must be deposited with the Register for proof, and when so deposited, each and every will may be proved in the ordinary form, or upon plenary proceedings before the [**32]  court itself, or upon issues sent to a court of law for trial. Sub. ch. 8, sec. 20, is the first provision in regard to issues, and it has reference to a debt due the estate by the executor. By it, the verdict and judgment on such issues are made conclusive as to the existence or non-existence of the debt, and that fact cannot thereafter be contested. Secs. 16 and 17, of sub. ch. 15, gives the court power in case of "a contest," to bring all parties before it, by plenary proceedings, and upon the demand of either party, to make up issues and send them to a court of law for trial, and it is then enacted, that the power of the court of law, and proceedings thereto relative, shall be as hereinbefore directed respecting the trial of issues, that is, as in regard to a debt due the estate by the executor, and the orphans court shall give judgment on the finding of the jury. From these provisions it is clear that a contest in relation to a will is placed upon the same footing as that in regard to a debt due by an executor; that the orphans court has no judicial discretion over the subject; they must award issues, and when awarded, they cannot go behind the finding of the jury upon the facts.  [**33]  If the contest relates to the whole will, involving both realty and personalty, and issues are framed involving its entire validity, the court must decide the facts according to the finding of the jury, and if that is in favor of the will it must be admitted to probate. It is conceded on the other side that the probate is prima facie evidence of the validity of the will as to real estate. Why is it prima facie evidence, save from the fact that the orphans court have jurisdiction over the question of probate of wills of real estate? The finding is conclusive upon the orphans court, not that the will is the will of the party, but as to the facts submitted to the jury, and is it not equally conclusive upon the parties? Why should it not be so? Why was the power to grant issues put into the law? It was to save the costs of going into chancery--to settle the question at once--to give the parties the right to try the case at once before a jury without an issue of devisavit vel non from a court of chancery or an ejectment at law. The power of the court of law in trying the issues is in every respect entirely untrammelled; the right to take exceptions and an appeal to this court are given.  [**34]  What more for the purpose of honest litigation could be asked? When, therefore, these parties went into the orphaas court and asked issues as to the validity of this will to be sent to a court of law for trial, it must be presumed, and they must be held to have done so with a view of having the question then and there settled for all time. Suppose the finding of the jury upon these issues had been the other way. The orphans court would have been bound by them, and the will must have been set aside. Could this appellee, have then brought his action of ejectment, as devisee, and set up this will as his title to the land? If he is bound, why are not the other parties to these issues bound also?

None of the Maryland decisions, cited on the other side, have any application to the present case except that of Massey vs. Massey, 4 H. & J., 141, and upon a close examination of the facts of that case, and the arguments and reasoning of the counsel by whom it was argued, it will not, we think, be found to decide any thing adverse to the position assumed by us in this case. There was no opinion of the court given in that case, and this court has said in Edwards vs. Bruce, 8 Md. Rep., 387,  [**35]  that decisions, in which no opinions are filed, will not be regardeded as authority in other cases unless the similarity is so apparent as to leave scarcely a doubt in regard to the propriety of applying the principles clearly shown to have been necessarily involved in and settled by the questions actually decided. The facts of that case and the questions involved are entirely different from this. There was no question in that case as to the validity of the will; it does not appear by whom the caveat was filed, or whether issues were sent or not, and, indeed, from the nature of the case there could not have been issues, or even plenary proceedings. It was simply a case of implied revocation of a will by the subsequent birth of children. The orphans court decided that the will was revoked by the subsequent birth of children, a question which they had no power or authority to decide, because it was not within their jurisdiction, and having refused probate to the will for this reason, the court simply said that such a refusal would not estop the devisee from claiming under the will. The decision of the orphans court, that the will was revoked, was a mere nullity, and the question decided [**36]  must necessarily have been merely that the orphans court had no jurisdiction over the subject of implied revocations. The other Maryland cases referred to are cases of probate in common form, and not on issues, and a probate in common form and on issues are totally different things. Nor does the case of Van Ness vs. Van Ness, in 6 How., 62, decide any thing in favor of the appellants.

But it is said, on the other side, that the Act of 1831, ch. 315, has changed the law, whatever it may have been previously, and that by the express terms of that Act a probate of will is only prima facie evidence, as far as real estate is concerned. We do not so read this law. It professes to be a supplement to the Act of 1798, ch. 101, and does not profess to alter or restrict that Act in any one of its provisions, but rather to enlarge the powers conferred by it. The verdict on issues is left to stand precisely where it stood under the Act of 1798. If conclusive then, it is equally so now. Its first section is merely declaratory of what the existing law was in regard to probate of wills in common form. But, again, the 10th section of the Act authorizes executors who have power to sell real estate [**37]  given them by wills, to sell and convey the same, and account in the orphans court therefor, in the same manner that an executor was previously bound to account in that court for sales of personal estate. Now the power to sell and convey land, under a will, and account therefor in the orphans court, implies a jurisdiction in that court to grant such a probate as will be effective to pass the title to the purchaser. How can this be effected, if that court has no power to grant a probate, upon issues, which will be conclusive and binding upon all persons? Titles to land, since the passage of this Act, would be rendered insecure indeed, if the probate is to be but prima facie evidence of the validity of the will.

In conclusion we will refer to the following decisions of our sister States, in which this question has been expressly decided in favor of the views we have endeavored to present. 7 Humph., 320, Patton vs. Allison. 8 Yerger, 186, Hodges vs. Bauchman. 4 Dev., 430, Redmond vs. Collins. 4 Iredell, 335, St. John's Lodge vs. Callender. 11 Iredell, 49, Benjamin vs. Teel. 12 Iredell, 355, Love vs. Johnston. 10 Grattan, 358, Schultz vs. Schultz. 13 Grattan, 682, Ballow vs. Hudson.  [**38]  10 B. Monroe, 474, Tibbatts vs. Berry. 20 Verm., 65, Woodruff vs. Taylor.  

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

OPINIONBY:
TUCK 

OPINION:

 [*552]  TUCK, J., delivered the opinion of this court.
The object of the present suit is to recover real estate to which the appellants allege themselves to be entitled as heirs at law of Rachel Colvin, in the face of her will devising the same to the appellee, after it had been contested on issues framed under the Act of Assembly and admitted to probate by the orphans court. The proceedings on the caveat, to which the appellants were all parties, as offered in evidence by the defendant, show that the merits of that controversy, embracing the mental capacity of the deceased and the question whether undue influence was exercised over her at the time of making the will, were fully passed upon by the court of law to which the issues were sent for trial, and by the Court of Appeals on exceptions taken at the instance of the caveators. The question before us is, how far those proceedings are to be taken as final and conclusive on the questions to which we have adverted, to wit: the testamentary capacity of the testatrix, and the [**39]  influences under which her will is said to have been made, 

 [*553]  it being asserted on the part of the appellee, in his prayer, that they are, as against the plaintiffs below, not merely prima facie, but conclusive evidence that the paper writing purporting to be and set up as her will, was executed and published by her, when she was of sound and disposing mind, and capable of executing a valid deed or contract, and that the same was not executed under the influence of suggestions and importunities which her mind, from its diseased or enfeebled state, was unable to resist; the appellants insisting, on the contrary, that in an action concerning her land, said proceedings are only prima facie evidence that the paper is her will.
It is certainly a very important case, involving, as it does, a large amount of property, and especially so, as affecting a well established fundamental principle of the law, that the merits of a claim once discussed and passed upon by a court of competent jurisdiction, and a final judgment obtained by either party, shall not be afterwards inquired into in another cause between the same parties. And, if we felt ourselves at liberty to apply the [**40]  doctrine of estoppel, there is motive enough for doing so in this case, as well on grounds of general policy, as to prevent further costly and protracted litigation. But, after the best consideration we have been able to bestow upon the Acts of Assembly and adjudged cases having any bearing on the subject, we have not been able, in the face of the Act of 1831, ch. 315, to bring the case within the principle of the common law to which we have referred--a branch of jurisprudence that was fully and elaborately investigated at the bar, with a force of argument and illustration seldom exceeded in any tribunal.
The will under which the appellee claims title, disposes of both real and personal property. As to the latter the probate is final and conclusive--binding all persons. By the Act of 1715, ch. 39, sec. 29, (Bacon's Laws, Deputy Com. Guide, 4,) the commissaries were empowered to take probate, "even though the wills concerned titles to land." The Act of 1798, ch. 101, authorizes probate in the orphans courts, of wills respecting personal property or appointing an executor, there being nothing said of wills devising real estate only, or of such 

 [*554]  as disposed of both kinds [**41]  of property, in which respect it differed from the Act of 1715; nor is there anything said of the effect of probate. The construction, however, always has been, that, as to personalty, the proof of the will in the orphans court cannot be questioned elsewhere. What effect on the title to land probate of a will disposing of lands and other property had under the Act of 1798, need not now be determined, since the present case must be considered with reference to the Act of 1831, ch. 315, in connection with previous legislation on the same subject. And, conceding that prior to 1831, a will admitted to probate after the manner observed in reference to this will, would, on the general principles advanced by the appellee's counsel, have had a conclusive effect in behalf of the devisee as against the parties to the caveat, if we find the Act of 1831 restricts such effect upon the rights of the heir at law, the former Act must yield.
Upon considering this Act of Assembly, and collating its several provisions, we think the language, interpreted by itself, is too plain to admit of any other meaning than that placed upon it by the appellants' counsel. The first section provides that the orphans [**42]  courts, and, in their recess, the Registers of Wills, shall have power "to take the probate of any will, testament or codicil, whether the same has relation to real or personal estate, in the same manner that the original Act (1798) authorizes the said courts or registers to take the probate of wills, testaments and codicils, containing any disposition relative to goods, chattels or personal estate, which said probate, as concerns real estate, shall be deemed and taken only as prima facie evidence of such will, testament or codicil." The design of the law-makers appears to have been to confer jurisdiction that had been denied by the Act of 1798, and though not as fully in effect as to land as, perhaps, was conceded to the commissary's probate under the Act of 1715, yet so far efficient as to throw the burden of proof on those who might set up a claim to land adverse to title under the will. By this Act probate is to be taken "in the same manner" as under the previous law, which we understand to imply that it may be in common form, or in the more solemn 

 [*555]  form of a plenary proceeding, by allegation, answer and proof, or by the finding of a jury upon issues transmitted [**43]  for trial to a court of law. Probate means proof of the will by the proper tribunal, and the law gives effect to the probate without reference to the manner of admitting the will to record. We said, in 3 Md. 462, and 4 Md. 393, that the obvious purpose of granting issues is to enable the orphans court to advertise itself of the real facts in the case. When ascertained they are the basis of the court's final action, in admitting or rejecting the will. The finding of a jury on issues can amount to nothing until acted upon by the court, which has authority to admit or reject the paper. It has no greater force than the evidence of witnesses rendered in the orphans court on a plenary proceeding, in the absence of a final effective act of the court itself upon the whole case before it.
It is said that the prayer was not that the proceedings were conclusive proof of the will, but merely of mental capacity and freedom from undue influence, and that, as against the plaintiffs, the finding of the jury is, at all events, conclusive upon these matters of fact. This seems to imply that if the appellee were relying on the proceedings as evidence of the will, they [**44]  would be merely prima facie proof, which the appellants could rebut, and the iniquity arises, whether one portion of the record can be so segregated from the rest as to give greater effect to a part than the whole would be entitled to if relied upon as the final judgment of the court upon the subject matter. This, we think, cannot be done. The consequence would be to give to the verdict on the issues, a conclusive absolute effect on the rights of the parties, when the order of the court, whose province it is to receive the finding of the jury and proceed upon it by a final act of jurisdiction, would be merely prima facie evidence of the will; for it cannot be overlooked that the point of the appellee's prayer goes to the very foundation of the plaintiffs' pretensions as heirs at law, to wit, the supposed incapacity of the testatrix. The issues at law are merely in aid of the jurisdiction of the orphans court, and the affirmance by the Court of Appeals adds nothing to the force of the proceeding as a judicial act. It is all the while 

 [*556]  a proceeding within the probate powers of the orphans court. State vs. Reigart, 1 Gill 1, 29. And when the Act [**45]  of 1831 speaks of probate, it is to be understood as referring to the act of the court or register, as the case may be, and not to any part of the proceedings on which the probate may be allowed.
If that Act did not contain this clause, it might be intended as a necessary conclusion, that the Legislature designed to give to probate of wills of realty the same effect which had always been ascribed to probates of those disposing of personally, or appointing an executor, upon the ground that they operate in rem, and bind all persons. 2 Greenlf. Ev., sec. 672. But here there are qualifying words, which we must suppose were designed to have some effect, and, in the absence of anything in the Act to indicate the contrary, it is but reasonable to impute to the Legislature the purpose of limiting the effect of the court's proceedings, according to the import of the language employed.
The sixteenth section also shows that the action of the orphans court was not to be final. It makes the Register's office a place of deposit for wills of which probate shall have been taken, and provides for their being used at trials of issues, "devisavit vel non," or at the trial of any issue involving [**46]  the will. Whether this section has reference to issues from the Chancery court, or to issues sent from the orphans court, or to any case at law or in equity, is not clear, but it demonstrates plainly enough that further contests, involving the will, were contemplated as likely to arise in other courts, after probate had been taken by the orphans court, and no mention is made of the effect that the probate should have, when granted, after a contest.
An argument was predicated on the tenth section, which provides for the sale of lands by executors, as showing that the orphans court was to have greater power over wills of land than was conceded by the appellants' counsel; that is, that the power to executors to sell and convey, implied a jurisdiction to grant probate that would be effective to pass the title to a purchaser. Mere probate in common form would not have such conclusive effect as to lands. The words of the Act are too 

 [*557]  plain for that construction: indeed, it is not claimed on the part of the appellee. If, therefore, this argument can be based on the tenth section, in aid of the present defence, the result would be, that a purchaser under a will admitted to probate [**47]  upon issues, and the finding of a jury, would be protected in his purchase, when one claiming under a less formal mode of taking probate, might lose the land. We do not suppose that the Legislature meant so to discriminate between cases of the kind. The words of the law do not show any such purpose, and however we may agree with counsel as to the propriety with which a wider scope might have been given to one mode of probate over another, where the same questions had been passed upon between the same parties, as the Act of Assembly makes no distinction, but refers to probate generally, we can only treat it as a casus omissus, which courts cannot supply. 10 Md. 278.
In giving this application to the Act of Assembly, we no more do violence to the maxim, "interest reipublicae ut sit finis litium," or to the doctrines of the law of estoppel, than does the common law itself, when it allows the validity of wills, as to land, to be questioned in actions of ejectment, after probate in solemn form. The ecclesiastical courts have no jurisdiction of matters concerning the realty, and the probate gives no validity to the will, as to such property, whether taken in common [**48]  form or per testes after summoning all parties in interest, and a full hearing. In view of the principles of estoppel, as sought to be applied here, it can make no difference that this probate was granted after a finding on issues, for the rule does not depend on the mode of trial so much as on the jurisdiction and judgment of the court. A case heard and determined by submission to the court is as effective, as an estoppel, as if passed upon by a jury. Probate by the orphans court establishes the will as to personal estate, whether taken in one way or another; it has the same effect as a judicial act, when taken upon a plenary proceeding as after the finding of a jury on issues. And, as to land, the effect is not varied according to the mode of proceedings. The mere affidavit of the witnesses on propounding the will, the caveat, answer and 

 [*558]  proofs on a plenary proceeding before the court without issues, and the finding on issues when framed, are but means of proving the instrument on which it is to be admitted to record or rejected. It is the order of the orphans court, at last, to which we must look to ascertain what has been done on propounding the will, and, when [**49]  its proceedings are relied upon, the Act says, that the probate, as to lands, must be deemed and taken only as prima facie evidence of such will.
Constrained by what we take to be the correct interpretation of the Act of 1831, ch. 315, we dissent from the ruling below, and reverse the judgment.
Judgment reversed and procedendo ordered. 

145 of 196 DOCUMENTS 

ABRAHAM BARNES vs. A. K. SYESTER, Ex'r of VIRGINIA W. MASON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 507; 1859 Md. LEXIS 91 

July 30, 1859, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Orphans Court for Washington County.

This appeal is from an order admitting to probate as to personalty, a paper purporting to be the last will and testament of Virginia W. Mason, deceased, propounded for probate by the appellee, the executor therein named.

The paper commences by declaring that "this is the last will and testament of me Virginia W. Mason, of Washington county, in the State of Maryland." By the first item thereof she gives her watch and chain to Thomson Mason, the eldest son of her brother, Melchoir B. Mason. By the second she gives all her clothing and a legacy of $ 100 to her old and faithful servant, Nelly Beender. By the third she makes provision for the manumission of all her servants at a certain age. By the fourth she gives all her silver to Mary A. M. Alvey, wife of R. H. Alvey, Esq., and then orders and directs her "executor, hereinafter named, to sell all my real estate, situated in Washington county, Maryland, and to make and execute a good and lawful deed, or deeds, of conveyance for the same, and to apply the proceeds as hereinafter mentioned." She then gives to "Mary King Wilcoxon, wife of Rev. Mason T. Wilcoxon, now living in [**2]  Uniontown, Pennsylvania, and daughter of the late Richard B. Mason, of the District of Columbia, the sum of fifteen hundred dollars;" to William, Mary M., Francis and Richard M., children of William Dodge, $ 500 each; to Elizabeth M. and Sarah W., daughters of Dr. John O. Wharton, $ 900 each; to Elizabeth M., daughter of Abraham Barnes, $ 1000; to Louisa G. and Elizabeth M., daughters of John T. Mason, $ 800 each; to Thomas M., eldest son of Melchoir B. Mason, $ 1000. "And lastly, I hereby nominate, constitute and appoint, Andrew K. Syester, of Hagerstown, Maryland, my sole executor, of this my last will and testament, revoking and annulling all former wills by me heretofore made, ratifying and confirming this, and none other, to be my last will and testament.

"In testimony whereof, I have hereunto set my hand and affixed my seal, this -----, in the year of our Lord -----.

VIRGINIA W. MASON.   (Seal.)

"Signed, sealed and delivered by Virginia W. Mason, the above named testatrix, as and for her last will and testament, in the presence of us, who, at her request and in her presence, and in the presence of each other, have subscribed our names as witnesses thereto."

Against [**3]  the probate of this paper a caveat was filed by the appellant, a brother of the deceased, which was answered by the executor, and testimony taken before the Orphans Court, to the following effect:

The deceased died on the 6th of October 1858, having been in perfect health the moment before she was seized with her final illness, which was instantly followed by unconsciousness, and in about two hours by death. The testamentary paper exhibited was found in her trunk a few days after her death. It was upon two sheets of blue fools-cap paper, tied together with a red string, and folded up and endorsed in the handwriting of the deceased: "Last will and testament of Virginia W. Mason." She had several trunks at different places. In the one which was in the room at the hotel which she was occupying at the time of her death, this paper was found near the top of the trunk, by itself. The same trunk also contained other papers, her watch, her jewelry and clothing. The paper as well as the signature thereto, and attestation clause is in her own proper handwriting. The Rev. H. T. Wilcoxon and wife, named in said paper, resided in Uniontown, Pa., from May to August 1856, at which latter period [**4]  he permanently removed from that place, with his family, and died in Baltimore, on the 30th of May 1858. The deceased and Mrs. Wilcoxon were intimate, and the former took a deep interest in the welfare of the latter, and they were much in the society of each other. Melchoir B. Mason had a daughter born on the 16th of December 1857, who was named Virginia, after the deceased, which fact the latter was aware of. She had no other nieces than those mentioned in this paper, except M. B. Mason's said daughter. Deceased sold her farm in Washington county, called "Richmond," containing about two hundred acres (which at the time constituted all her real estate in Washington county) to S. Zeller, on the 26th of November 1856, for between $ 9,000 and $ 10,000, and in part satisfaction of the same, she got other real estate, estimated at about $ 1,500. This last mentioned real estate she had also agreed to exchange with Wm. Harvey for 320 acres Iowa land, and the bargain had been closed, except the execution of the necessary papers, in the afternoon previous to her death. The exchange was an equal one, excepting that Harvey was to allow $ 20 for the rent of a tenant house on the farm, and for [**5]  which he gave her his due bill, which has not been found though diligent search has been made for it. Deceased was on her way to execute the necessary papers to consummate this exchange, in a legal form, when she was suddenly overtaken by death, as before stated. Her personal estate at the time of her death was worth about $ 4,500, exclusive of her negroes, and she owned land in Minnesota. About five or six years before her death she requested the appellee, a lawyer, to prepare a will for her according to her directions, which he did, and which was duly executed and attested. At the time he drew this will he instructed her as to the manner of executing it, and told her it was necessary to have three witnesses, to which she replied she knew it, and afterwards at her instance and request the witnesses thereto attested said will. In it the appellee was named executor, and a liberal bequest was made in favor of her brother Thomson Mason, who was then living. In July 1855, said Thomson died, and soon thereafter deceased again applied to appellee to prepare a codicil or new will for her, to which he replied, in substance, that as she had the form of a will in her possession, she might change [**6]  it herself to suit her own views, to which suggestion she assented. No other testamentary paper has been found but the one exhibited. The relations between herself and her brothers and their families at the time of her death were kind and cordial, and so were those with Mrs. Dodge's family and Mrs. Wilcoxon, the two latter being first cousins once removed of the deceased. She spent a great deal of time at Mrs. Dodge's. About five weeks before her death she sold one of her slaves for misconduct. She was in the habit of conferring with her brother, Judge Mason, about her business matters, but never made any reference to a will. In 1856 she had no personal estate of any material value, except her negroes, and her interest in the growing crops on her farm, nor had she up to the time of the sale of her farm to Zeller. She was a woman of intelligence, good business habits, of strong mind and strong will, and was about thirty-eight years of age at her death. Her trunks are in the possession of her brother, J. T. Mason, with their contents, and have been since her death, and in each of them are papers of more or less value. There were three bonds due on her farm from Zeller, two of which she [**7]  had deposited in the Savings' Bank, for $ 1,000 each, and one with Mr. Kinkle, her agent, for the sale of her real estate, for $ 500. One of her trunks was left for safe keeping with Mr. Kinkle, in which was a portion, if not all, of her silver. The third trunk had been left with Dr. Wharton, her brother-in-law, in Baltimore. Deceased left, as her next of kin and heirs at law, three brothers, Abraham Barnes, Melchoir B. Mason, and John T. Mason, and the children of her deceased sister, Mrs. Wharton. She was particularly attached to her brother Thomson, now dead, of whom the appellee was a warm personal friend, and in his misfortunes paid him particular attentions.

Mr. Harvey testified that, to the best of his recollection, the contents of the due bill before spoken of, were as follows: "Ten days after date, I promise to pay Miss V. W. Mason, eighteen dollars, the same being due her as half year's rent on a State farm just exchanged for 320 acres of land located in Howard county, Iowa.

H. H. HARVEY."

Mrs. Dodge testified that deceased told her in the spring of 1855 or 1856, she does not remember which, she had made her will and showed witness the paper which she said [**8]  was her will, but did not read it; witness cannot say the paper propounded is the paper so shown to her, but it looks like it. Since that time deceased has not told witness she had made her will, nor spoken of it. The trunks of deceased were brought to witness' house, where they were opened by Judge Mason, in her presence. The paper now propounded was found in the top of her travelling trunk, in one corner among her private papers. This was the trunk she always kept with her. The other was brought from Baltimore, in which was packed her summer clothing. The paper was not in an envelope. The paper deceased showed to witness in 1855 or 1856, was blue fools-cap paper tied with a red string. The trunk when it was brought to witness' house and opened in her presence, contained her watch and jewelry. Witness thinks when she saw the paper deceased had brought it from the Clear Spring Post Office; she cannot be certain of it for it did not make much impression on her.

Miss Schnebly testified that the evening before her death deceased told witness she had disposed of all her real property in Washington county, by exchanging it with Dr. Harvey for Iowa lands, and expressed her intention [**9]  to buy a small farm in Washington county, and go there to live. Witness heard deceased say many years ago that everybody should have a will and not wait till they died to make one, and that she intended to make her will one of these days. Witness has heard deceased say, time and again, that she intended to make her will and that she would leave witness something, but cannot say at what particular times she made these declarations. Witness and deceased were very intimate.

From the order of the court admitting the paper to probate as to personalty, the caveator appealed.  

DISPOSITION:
Order reversed.  

HEADNOTES:

A paper was propounded for probate as to personalty, in which the testatrix, among other things, directed her executor to sell all her real estate in Washington county, Maryland, and apply the proceeds to the payment of certain specified legacies. It was written in her own hand, and signed and sealed by her. There were no dates in it, blanks being left for the purpose, and there was an attestation clause in the usual form but no witnesses. The paper was written about two years before her death, which occurred about two hours after a sudden attack, during which she was unconscious. She was a woman of intelligence, strong mind and will, of good business habits and had been specially instructed by counsel as to the necessity of having three witnesses to a will to pass real estate. At the time this paper was written, she had real estate in Washington county, all of which she subsequently sold and disposed of, and was about to execute the necessary papers to consummate, in legal form, the disposition of a part of it when she was overtaken by the sudden illness which resulted in her death. The paper was endorsed as her will and was found near the top of her travelling trunk, in the room at a hotel where she was staying at the time of her death, and this trunk also contained other papers, her watch, jewelry and clothing. There was evidence that she had said frequently, that all persons should make wills, and that she intended to make hers, and that, at another time, she said she had made her will, but whether this last declaration had reference to this paper or to one that she had executed some years before, does not clearly appear. HELD: That probate of this paper must be refused.

An attestation clause without witnesses, makes the paper an unfinished testament, even when the party has signed it, and the presumption of law is against such papers, and though a slight presumption it must be rebutted by extrinsic circumstances before the paper can be admitted to probate. 

COUNSEL:
R. H. Alvey for the appellant:

The paper, propounded for probate, makes some few specific bequests and provides for the liberation of her slaves. The main bequests are dependent upon the proceeds of the sale of the real estate directed to be sold. The legatees, to whom pecuniary amounts are directed to be paid, would be deemed devisees, pro tanto, because it is expressly directed that the proceeds of the real estate shall be the fund for their satisfaction, and, therefore, the personal estate would be exonerated. 11 Ves., 185, Hancox vs. Abbey. 4 Ves., 82, Holford vs. Wood. 2 Drury &  [**10]  Warren, 64, Lamphier vs. Despard. 2 Spence's Eq., 342. This construction in connection with the fact that the deceased, at the time the paper was written, had no other fund than the land out of which the legacies could be paid, makes it clear that it was her intention to execute the paper formally, and in such a manner as to carry realty, or otherwise all the most considerable legacies would fail. The deceased was an intelligent woman. She understood perfectly well the formalities necessary to make her will effective as to her real estate. She made nearly the whole programme of her bounty depend upon the disposition of that character of estate. Can we then resist the conclusion for a moment, that she intended, at the time she made this instrument, to execute it in a formal and perfect manner, so as to effectuate her objects? If she did intend further execution of the instrument, and did not suppose at the time, that the paper would in its then form and condition operate as her will, or did not intend it so to operate, without further act or ceremony, then it cannot be received as a last will, unless it be shown that it was made so by subsequent adoption. 9 Gill, 53, Boofter vs. Rogers.  [**11]  

But were the legacies not so dependent upon the sale of the real estate, and were payable out of the personalty in the ordinary way, this paper affords abundant evidence, until repelled, of its own incompleteness and inchoate character, even as a will of personal estate, and, in the absence of evidence to repel them, we must argue this case upon the presumptions of original design as evidenced by the paper itself. In the testamentary disposition of personalty no form is necessary, if none be intended by the party. But if form be designed and attempted, it must be completed as projected. The question then becomes altogether material, whether every thing has been done that the party deemed necessary or intended? For, if not, the paper is incomplete and all the presumptions of law are against it. Here, it is evident, the deceased intended to do something more before she published the will. She was fully aware of the necessity of three witnesses to pass land. She had on a former occasion executed a will, when all the forms had been complied with, and, contemplating a similar mode of execution, we find that, in the preparation of this paper, she added the attestation clause and left [**12]  blanks for the insertions of the day, month, and year. Why were all these dates left blank? If her intention was to do nothing more to the paper, but to let it stand in its then condition, why did she not at once fill up the dates? Is it not plain that she left the blanks to be filled up at the time when she should, if ever, complete the instrument by formal execution? Why was the attestation clause added? She must have had a design in it, and that design was to have her will, if ever executed, formally attested by witnesses. And if she postponed the publication of the will to enable her to comply with forms even, or to effect a more formal execution, it is sufficient to show that her intention was not complete, that she had not at the time the animus testandi. This was so decided after thorough consideration in the case of Walker vs. Walker, 1 Merivale, 503.

Proceeding upon rational presumptions from the intrinsic evidence of intention, it has been frequently held, that if there be an attestation clause added, as here, at the foot of a testamentary paper, the inference is that the deceased intended to execute it in the presence of witnesses, and that it was incomplete in the [**13]  apprehension of the party till that ceremony was performed, and consequently the presumption of law is against the paper, if it be not attested by witnesses as apparently intended. 1 Phill., 19, Scott vs. Rhodes. 2 Phill., 177, Harris vs. Bedford. 1 Add., 154, Beaty vs. Beaty. 4 Ves., 186, Mathews vs. Warner. 1 Merivale, 503, Walker vs. Walker. This presumption is held to be very much strengthened when the paper purports to dispose both of real and personal property. 1 Hagg., 226, In Re Herne. 3 Md. Rep., 142, Plater vs. Groome. And so the presumption against the instrument is still stronger, indeed almost incontrovertibly conclusive, where the unexecuted will creates a common fund of real and personal estate with which to pay legacies. Such presumption can only be overcome by very clear and certain evidence. 3 Knapp, 1, Douglass vs. Smith. 4 Hagg., 183, Elsden vs. Elsden. Ibid., 192, Gillow vs. Bourne. Ibid., 199, note (a), Tudor vs. Tudor. The whole strength of this last measure of presumption bears against this paper. It not only creates a blended fund, of a personal and real character, but nearly the whole extent of the bounty is dependent upon the real fund.

If then this [**14]  paper was not, at the time it was prepared, intended in its then form to operate as the last will of the deceased, without any thing more being done, at what time subsequently did the voluntas testandi exist in her mind? The onus of showing the time when it existed, as to this instrument, is upon those who seek to sustain it as the last will, and in the absence of clear and unequivocal proof, the paper must fall. Lord Loughborough in his opinion in Matthews vs. Ward, 4 Ves., 209, has disposed of this whole case upon the clearest reason. In speaking of an imperfect instrument then before him, he said: "Under all these circumstances, with this evidence, and above all the evidence of the paper itself, I would have no difficulty, sitting as I have sat in a court of law, to put it so to the jury that I should expect a verdict that he had not devised; that it was no will, but only a project of a will, not a complete, definite rule and law for settling his fortune. It is not, it cannot, be denied, the argument presses so strong, that upon the perusal of this paper, the natural conclusion is, that it was his intention to make a more formal paper than this. That inference cannot possibly be [**15]  avoided. Then, ex hypothesi, this paper, at the time he subscribed it, was not the law, the testament. When then, at what period did the voluntas testandi exist in his mind, quoad this instrument? If it is admitted, as it must be, that when he subscribed his name he was looking to some future act, the decision that this is his will would destroy the most general maxim I know of, voluntas testatoris ambulatoria est usque ad mortem. No man can answer the question, at what time that intention existed in his mind. I know there was a period when a contrary intention existed. He has given that evidence under his own hand by the paper of 1789." The same argument was adopted by Judges Martin and Buchanan, against the will of Steuart, in 4 H. & J., 156. Whatever may have been the purpose of the deceased, at the time of writing this paper, it is manifest, that there was a suspended intention in regard to it.

The fact of the paper being preserved in her trunk, in the state it was found, by no means evidences, either an original intention to constitute it her will as it stood, or to make it such by subsequent adoption. Upon the contrary, that fact rather militates against the paper. With [**16]  constant and ready access to it, and without the slightest prevention, for more than two years it remained in its incomplete and unfinished condition, and is so left at her death. This fact is not consistent with the supposition of a fixed and final intention to make it her last will. The facts attending the paper propounded as the will of Steuart, are infinitely stronger to sustain the presumption of intention than the facts of this case. There the paper, in the handwriting of the deceased, was found in a place of the greatest possible security, giving evidence of great care and deliberation. These facts, coupled with the repeated strong declarations of Steuart, that he had made his will, and always kept a will by him, imparted considerable strength to the case, but yet the paper was rejected. I contend that the cases of Tilghman vs. Steuart, 4 H. & J., 156, and Plater vs. Groome, 3 Md. Rep., 134, are decisive of this. See also the case of Clagett vs. Hawkins, 11 Md. Rep., 381.

As to the declaration made by the deceased to Mrs. Dodge, they can have no application to this paper. They were made at a time before the paper was in existence. Mrs. Dodge is not certain whether they [**17]  were made in the spring of 1855 or of 1856, but whether made in the spring of the one year or the other, they were anterior to the existence of this paper. Mrs. Dodge says that the deceased got the paper out of the Postoffice, a thing that could not well have happened with the paper in question, because it is in her own handwriting, and therefore always in her own possession. But had these declarations been made after the existence of the paper in question, instead of before, they would be worth but little in the scale of evidence. To show how much weight is due to evidence of such declarations, I cannot do better than to quote a passage from the judgment of Sir John Nicholl in the case of Beaty vs. Beaty, already referred to, where that learned civilian said: "The mere vague declarations of testators that they have made their wills are not always to be implicitly relied on; and can never, standing singly, supply proof of due execution, or, consequently, of what is to be taken in lieu of it. In common parlance a man may well say, and possibly often does, that he has made a will, when he has written a testamentary paper, however incomplete or unfinished that paper may be." Judges Martin [**18]  and Buchanan, in Tilghman vs. Steuart, expressed themselves to the same effect in disposing of the declarations proved to have been made by Steuart as to his having made his will. 4 H. & J., 167, 175.

Since it has been decided by this court, in Plater vs. Groome, that the strong language used in Brown vs. Tilden, 5 H. & J., 371, in declaring for the paper there produced is to be understood as referring only to the particular codicil then involved, that case cannot be treated as an authority, and I shall not, therefore, undertake to show the great dissimilarity between this case and that. I shall submit this case on the authorities I have already cited, with this further remark, and the authority for it, that the rule is to be enforced with strictness in requiring satisfactory proof of the existence of the animus testandi, where formal execution appears to have been intended, and that the facility of establishing wills of personal property has been deemed an evil to be restricted rather than a good to be extended. 1 Phill., 19, Scott vs. Rhodes. 4 Ves., 210, Mathews vs. Warner.

John T. Mason on the same side:

It appears from the facts in the case, that at the time this [**19]  alleged will was written, which was more than two years before the death of the testatrix, she was possessed of little personal property other than her negroes, and that at the time, her estate consisted almost entirely of real property, and that she knew this paper was invalid to pass real estate.

1st. It is clear that this paper was never valid to pass real estate.

2nd. It is admitted to be sufficient to convey personal property, if it were so intended when it was made.

3rd. Therefore, the only issue to be determined by this court is, did she intend the paper to operate as her will in its present form and condition?

4th. This inquiry is answered by one of the admitted facts in the cause, viz., that she knew the will was inoperative when it was made, and knowing it to be invalid, it is an absurdity to say that it was designed to accomplish that which the deceased knew it could not accomplish.

5th. The paper being worthless at the time it was made, because it lacked the essential element of having been intended to operate as a will in its then imperfect condition, some new subsequent act of the deceased was necessary to infuse virtue into it, such as republication [**20]  or the like, which it never received. The paper must be regarded now, as it was when it was made, as a mere "project or plan for a will which was never adopted or carried into execution." 3 Md. Rep., 145, Plater vs. Groome.

6th. The law requires, in regard to wills of personalty, no particular formalities, as in real estate, but it is essential that it should be proven beyond a question, that they were intended to operate as such in the condition in which they were written. The formalities of wills of real estate create a legal presumption of such intention, which, in cases of incomplete wills, must be supplied by direct proof.

7th. The purpose of the deceased, as foreshadowed by this paper, was to dispose of her entire estate. To apply the present paper to her personal estate alone, would be to defeat her purposes almost as effectually as to say she died intestate; practically, much more so.

8th. The cases of Tilghman vs. Steuart, 4 H. & J., 156, and Plater vs. Groome, 3 Md. Rep., 134, it is submitted, are conclusive of this case.

A. D. Merrick and A. K. Syester for the appellee:

If this paper had no attestation clause appended to it, it would clearly be entitled [**21]  to probate, so far as personal estate is concerned. Wms. on Exc'rs, 56. 3 Phill., 614, Forbes vs. Gordon. This point is also fully settled in Maryland by the case of The Visitors of the Free School in St. Mary's Co. vs. Bruce, 1 H. & McH., 509, where the will, as exhibited, was not signed by the testatrix, nor was it in her handwriting, nor attested by any witnesses, and the date was left blank, as well as the name of the executor, and it undertook to dispose of both real and personal estate.

There is no case in Maryland where a testamentary paper, signed by the decedent, has been refused probate as to the personalty. Although, at the time of writing this paper, the deceased owned real estate in Washington county, and although this paper directs that estate to be sold by the executor, yet in reality, at the time of her death, she had nothing but personal estate to dispose of. On the day before her death, she exchanged the only lands she possessed in Washington county for Iowa lands, with Dr. Harvey, and a due bill was given to her by him for a sum of money due her on the exchange, as for rent for a tenant house, and in this due bill the fact of the exchange was recited, and the [**22]  terms upon which it was made, expressed. This was a sufficient memorandum in writing within the statute of frauds. Chitty on Cont., 70, 71, 300. 1 H. & G., 139, Higdon vs. Thomas. This, too, was the opinion of the deceased, who, on the evening before her death, told a witness, not that she was about to sell, but that she had sold all her Washington county lands. The evidence in the cause and the reasonable conclusions to be drawn therefrom, show, moreover, that from the time of the writing of this paper up to the day of her death, the deceased was steadily engaged in converting all her real estate into personalty, and that she commenced negotiations for the sale of her real estate as early as May 1856, in which month this paper was probably written.

In the case of Plater vs. Groome, 3 Md. Rep., 134, the court say: "To constitute a good will for personal property, the paper must be either complete on its face, or it must appear, if incomplete or defective, that it was intended by the testator, that it should operate as his will in its unfinished and imperfect state, or that he was prevented from completing the contemplated formalities by being overtaken by sickness or death, or [**23]  some other casualty. In all cases of imperfectly executed testamentary papers, like the present, it must appear that the deceased possessed the animum testandi at the time it was written, and that he intended and supposed the paper, as it stood, to be his will, without looking to anything further to be done in order to perfect it. Tilghman vs. Steuart, 4 H. & J., 173. Upon these general principles, which we think are sustained by all the authorities, the present controversy must be settled." An examination of the case of Tilghman vs. Steuart, here referred to, will show the nature of the imperfection alluded to. The paper in that case was not only unattested by witnesses, but was unsigned by the testator, and blanks were left for the names of the legatees, thus bearing on its face the most glaring imperfections, which it was impossible to explain or account for, except on the hypothesis that the animus testandi did not and could not have existed in the testator, either at the time of writing the paper or at any subsequent period. Although it may be conceded that the imperfections and omissions upon the face of the paper in that case were such as to show conclusively there was at no [**24]  time a fixed animus testandi in the testator, and consequently that the paper was rightly rejected, yet the reasoning of Judge Johnson shows conclusively that the doctrine sought to be established in this case was not then even urged before the court. He says: "Against the validity of the will it has been contended, that notwithstanding the ancient decisions may have supported such instruments, the modern determinations establish a different doctrine, and where the paper in question, on its face, carries evidence of an intention in the framer to perfect it by some further solemnity which he has died without having superadded, having had afterwards sufficient time and health to complete it, such paper may be inferred not to have been intended to operate as it stood, and the omission to perfect it may ground a presumption of a change of mind in the deceased. Roberts on Frauds, 453. If the position thus advanced was to be received in its full extent, the consequence would follow that no will, designed to pass real and personal property, where an intention on its face was manifest that it was designed to have been executed in conformity with the statute, could be effectual to pass the [**25]  personal property, although signed and sealed by the testatator; for as it would be apparent on the face of the paper, witnesses were designed to be obtained, the not procuring them would justify, according to the position, the inference of a change of mind on the part of the deceased. To this extent the principle has not been urged in this cause." 4 H. & J., 169. See further upon the distinction drawn between testamentary papers unfinished and imperfect on their face, and those that are merely defective in their manner of execution. Wms. on Exc'rs, 61; 2 Add., 354, Montifiore vs. Montifiore. But even if the animus testandi does not exist at the moment of writing a paper, a subsequent adoption or recognition of it as a will, will be sufficient. 9 Gill, 44, Boofter vs. Rogers. In this case, the signing of the paper by the deceased is a circumstance sufficient to render it prima facie a valid will as to personalty. In Barnet's Appeal, 3 Rawle, 15, it was laid down by Chief Justice Gibson, that "where a paper contains the substance of a will, with the usual act of execution subjoined, although without the names of subscribing witnesses, the fact that it was thus found in the decedent's [**26]  possession, ought, without actual publication, to be taken for prima facie evidence of its having been adopted as a testamentary act. But where, on the other hand, it is destitute of every formal act of authentication, the presumption ought to be adverse, in the absence of proof of an actual publication, or of any other act of recognition, equally satisfactory." In illustration of the same principle as to the presumption to be drawn from a party's signature, to take an agreement out of the statute of frauds, Lord Cowper observes, "that he knew of no case where an agreement, though all written with the party's own hand, had been held sufficient, unless it had likewise been signed by him; that the party's not signing it was evidence that he did not think it complete; that he had left it to an after consideration, and might make alterations or additions in it; therefore, unless it was signed by him, or something equivalent done to show that he looked upon it as completed, he thought such writing by the party himself was not sufficient to bind him within the statute." Bawdes vs. Amhurst, Prac. in Chan., 402.

The paper under consideration was either, 1st. A mere project or draft of [**27]  a will. 2nd. A revoked will; or, 3rd. The genuine will of the deceased. Now, first, was this a mere project of a will? Upon an examination of the paper, we find that the amount of all the legacies bequeathed by it is precisely $ 10,000, and there is no residuary legatee. The deceased evidently intended to make a complete disposition of all her property by this paper, as her "Richmond Farm" was sold on the 26th of November 1856, for between $ 9,000 and $ 10,000, which was all the land she then possessed in Washington county. Adam Kinkle was her agent in the sale of this farm, the negotiation for which was pending for about five or six months before it was concluded, and must, therefore, have been commenced as early as May 1856. This paper must have been written some time between May and August 1856, as the Rev. Mr. Wilcoxon, who is therein mentioned as residing in Uniontown, Pa., only lived there between those periods. Mrs. Dodge testifies that in the spring of 1855 or 1856, she does not remember which, (but other circumstances show that the latter date was the correct one,) the deceased told her she had made her will, and, at the same time, produced a paper in all respects resembling [**28]  this, which she declared was her will. Another prominent fact, taken in connection with previous ones, is, that another will had been prepared, according to the directions of the deceased, some three or four years previously, and, soon after the death of Thomson Mason, in July 1855, who was a brother of the deceased, and to whom a liberal bequest had been made in this will, she applied to her attorney to prepare her another will. He told her that as she had already the form of a will in her possession, she might change it to suit herself. Now, from a comparison and examination of all the facts together, is not the conclusion almost irresistible that the deceased, after this interview with her attorney, and in accordance with his suggestions, to which she assented, did prepare this will to suit her own views, which had been changed and, in part, frustrated by the death of her brother, and when she exhibited it to Mrs. Dodge, and declared it to be her will, in the Spring of 1856, and when she endorsed upon it the words, "Last will and testament of Virginia W. Mason," it was recognized and adopted by her as her bona fide will? The endorsement upon the paper is a declaration of the strongest [**29]  and most emphatic kind, not to particular persons, but to the whole world, that it was really and truly, at the time, the will of the deceased. In no possible view of this case, can this paper be looked upon as a sketch or project of a will, to be afterwards considered upon and then filled up by the testatrix in accordance with her completely formed wishes. On the contrary, the careful manner in which it was prepared, the particularity and minuteness of its dispositions, the nice arithmetical exactness with which the whole amount of legacies is made to correspond with the value of her estate; even the peculiarities of some of its dispositions, and its solemn recognition, afterwards, by the decedent, all go to show that it was no project or draft, like the paper in Tilghman vs. Steuart, but was, at the time of its writing, endorsement and subsequent recognition, a true will, and, it may be added, a will that had been most carefully prepared, calculated and meditated upon.

Nor can this paper be considered as a revoked will, for if it once be conceded that it was, at any time, the genuine will of the deceased, the burden of proof to show that it has been revoked is thrown on the [**30]  other side, and there is a total absence of evidence even tending to show such revocation. On the other hand, the deceased, from the very moment the paper was written, which was probably in May 1856, up to the day preceding her death, was engaged in the conversion of all her real estate into personalty, thus rendering the present paper, which was the genuine expression of her wishes regarding the disposal of her property, but which would not have been valid under the statute as a disposition of real estate, perfectly valid as it stood, without the attestation of witnesses. At the time it was written she owned real estate in Washington county. She knew what were the requisites of a good will to pass real property, and she knew, therefore, that this paper might be perfected in two ways: 1st, by its due execution, attestation and publication; or, 2nd, by the conversion of her real estate into personalty, which would in no wise interfere with the provisions of her will, since its bequests were all specific sums of money. This latter method she adopted and completed, and thereby dispensed with the necessity of having the paper attested by witnesses. These facts, we think, are a sufficient [**31]  reply to the argument the appellant attempts to derive from the fact that at the time this paper was written the deceased had no other fund than land out of which the legacies could be paid.

Many years before her death, and at different times, the deceased declared that everybody should have a will and not wait until they were about to die to make one, and her subsequent conduct proved that these declarations were afterwards made a rule of action for herself. As soon as her first will became inoperative by the death of her brother, we see her anxious to have another prepared. She accordingly writes the present paper and destroys the first will, as must be reasonably presumed from the fact that it cannot be found. Now, why did she destroy her first will if she did not intend the second should stand in its place, or why was not the second destroyed if she had ever changed her mind as regards its provisions? It may be said, on the other side, that her sudden death prevented her destroying the present paper; but is it not at least as likely that this was one of the principal causes, if not the only cause, why it was not fully attested?

We have thus endeavored to show that from [**32]  the facts and circumstances attending this case, it differs very materially from those of Tilghman vs. Steuart and Plater vs. Groome, which are the main authorities relied on by the appellant, and consequently that the rejection of the papers in those cases cannot affect this. On the contrary, we rely upon all the Maryland authorities on this subject which have been cited by the appellant, as sustaining our views. Even the modern English cases cited on the other side, would not, as we conceive, warrant the rejection of this paper. These cases all hold that the presumption arising from an unexecuted attestation clause, against the instrument, even when the paper is unsigned, is but slight, and may be rebutted by slight circumstances. The case of Watt & Leroy, 4 Wend., 168, is very similar to this. In that case a testamentary paper found in an iron chest among valuable papers, of a person deceased, without signature, having an attestation clause without witnesses, written by the deceased, evincing much deliberation and foresight in its provisions, and disposing of both real and personal property to a large amount, was received as a valid will as to personality. The following propositions [**33]  were there laid down: 1st. That, according to the common law, as generally received and understood in England as well as in this country, up to the time of the American Revolution, the paper propounded as a will in that case would have been admitted to probate although it was not signed by the testator, at the end thereof, had an attestation clause and was unattested; and 2nd, that although according to the modern decisions in the Ecclesiastical Courts of England, if there be an attestation clause to the paper propounded as a will, and it be unattested by witnesses, such clause raises a presumption against the paper as furnishing proof that a further act was contemplated to be done, still such presumption is but slight and may be rebutted by slight circumstances. And, after examining that case tested by these principles, the Chief Justice comes to the conclusion "that the paper produced should be admitted to probate, as in his opinion the circumstances fully rebut the slight presumption arising from the non-execution of the paper in the presence of witnesses."

In conclusion it is to observed, that the unexecuted attestation clause is laid hold of by the appellant as the material [**34]  and controlling circumstance to defeat the validity of the instrument before us as a will. All the authorities concur in the doctrine, that the presumption arising against the validity of such an instrument from the unexecuted attestation clause, is but slight, and that but slight circumstances will rebut it. In the case of Watts & Leroy, just referred to, extrinsic and intrinsic circumstances were considered, and the deliberation and foresight displayed in the preparation of the paper in that case with the fact that it was found in a place of security, were held sufficient after the most mature argument and deliberation to rebut the presumption of law against it, arising not only from the unexecuted attestation clause, but also from the fact that it was unsigned whilst there was a seal attached. In this case the paper is signed and sealed; the deceased treated it as among her most valuable articles; she left it in a place of the greatest possible security, compared with the manner and places in which her other effects were kept; we find it among her valuable and esteemed articles of jewelry, along with her private papers which she kept always with her in her travelling trunk. Similar [**35]  and like circumstances have always been held as very powerful to overthrow even stronger presumptions of law, than the bare circumstance of the non-execution of the attestation clause. 1 Phill., 345, Bone vs. Spear. 2 Phill., 122, Read vs. Phillips. Ibid., 177, Harris vs. Bedford. 3 Phill., 323, Buckle vs. Buckle. Ibid., 614, Forbes vs. Gordon. 1 Add., 383, Warburton vs. Burrows. 2 Add., 42, Doker vs. Goff. 3 Rawle, 15, Barnet's Appeal. The presumption of law arising from the circumstance we are contemplating, is not only as we conceive, entirely overcome by the pregnant facts of the present case, but the circumstance is itself susceptible (in connection with other facts) of an easy and most reasonable solution, without having recourse either to the supposition of an immaturity or change of testamentary intention. We think it may be explained altogether consistently with the existence of the animus testandi in regard to this paper. For instance, when this paper was written (probably before) the deceased was engaged in selling her Richmond Farm, comprising all her real estate in Washington county, and it was manifestly her intention to convert all her realty into personalty. This purpose [**36]  she industriously and perseveringly pursued up to the very hour of her death, when it was accomplished. This realty is worth $ 10,000, the exact amount of the legacies bequeathed. She had this purpose in view at the time, if not before, the writing of the instrument we are considering. She well knew that when that event should be accomplished no witnesses would be necessary to the validity of her will. We submit that these facts do demonstrate that she regarded this paper as containing her will, that in its existing form it should so operate, and that the attestation clause was to be executed only in the event of her dying possessed of real estate in Washington county, an event which her own active, diligent and persevering exertions at last finally defeated.

Upon the strong facts in the record, which we have endeavored to present to the court, and relying upon the authorities cited, and the uniform course of decisions in Maryland, we submit the case.  

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

OPINIONBY:
TUCK 

OPINION:

 [*527]  TUCK, J., delivered the opinion of this court.
It has been regretted that more strictness has not been observed in the admission [**37]  to probate of testamentary papers. To meet the apparent hardship of particular cases doctrines have been engrafted on the law, which have caused as much injustice in other instances as their introduction was designed to prevent, and, we think, it may be suggested as a probable consequence of some decisions, that, by the failure of courts to ascertain the real intent of the deceased, wills were made for persons who in fact had died intestate. Among the most difficult duties we have to perform is that of passing upon unfinished, imperfect, and informal papers, in the nature of wills, and it is greatly increased when the intention of the maker is to be gathered from the varying, and often conflicting, statements of witnesses, detailing declarations and acts, of uncertain import, at different times, the correct interpretation of which must depend on collateral circumstances into which the tribunal to decide the question cannot enter. And, if, for a solution of the difficulty, resort be had to adjudged cases, we find eminent jurists differing in their conclusions, though drawn from the same or similar acts and words, according to the peculiar facts disclosed at the time they were done or [**38]  uttered, and, in some cases, invoking, not merely the res gestae of the transaction, but, the conduct of the testator during his whole life, as far as it may appear to have had relation to the act in question. The decision of the present case is attended by 

 [*528]  these embarrassments, called upon, as we are, to pronounce for or against what is propounded as the last will of a woman shown to have been of intelligence, strong mind and will, of good business habits, and specially instructed by counsel as to the requisites to give full effect to such an instrument as the one before us, when she is no longer here to speak for herself. The paper in question was drawn by Miss Mason, and is effective to accomplish the purposes indicated, except that, though signed and sealed, it has no date, blanks being left for the purpose, and there is an attestation clause in the usual form, but no witnesses. The time of the writing may be inferred from extrinsic facts, and the signing does not appear to have been at any other time than when it was written. If done, at that time, it is plain that, if she designed the will to operate on all the property mentioned, she must have looked to the further [**39]  act of supplying the dates and publishing before witnesses. It was endorsed as her will, and found near the top of her travelling trunk, in the room at a hotel where she was staying at the time of her death, which occurred two hours after a sudden stroke, during which she was unconscious. The trunk also contained other papers, her watch, jewelry and clothing. One witness proved that she had said, frequently, that all persons should make wills, and that she intended to make hers some of these days, and, another, that she said she had made hers, but whether this last declaration had reference to this paper or to one that she had executed some years before does not clearly appear. There is other evidence, from which it may be inferred, that she did not intend to die intestate, but the question before us is, whether she designed this paper to operate as her will, as to the property which by the law it could effect, notwithstanding it might fail of effect as to other property. And, when we consider all the facts and circumstances belonging to the question, and the principles of law governing cases of the kind, we think that conclusion cannot be drawn with the certainty which the law requires [**40]  when it is attempted to disinherit those, who, in the absence of a will, are entitled to take.
If the present paper had not been signed by the party we 

 [*529]  could not hesitate to reverse the order of probate, on the authority of Plater vs. Groome, 3 Md. 134. It is well settled that an instrument, like the present, is to be classed among unfinished testaments, on account of the attestation clause without witnesses, even where the party has signed it; that the presumption of law is against such papers; and, though a slight presumption, must be rebutted by extrinsic circumstances, in order to its being pronounced for. This doctrine is fully stated in the case of Beaty vs. Beaty, 1 Addams 154, (2 Eccl. Rep. 60,) which in some respects was like the one before us, with the additional fact that the will was dated, and the testator had said that he had destroyed his former will and made a new one. In Harris vs. Bedford, 2 Phill. 177, Sir John Nicholl said: "From the circumstance of there being no witnesses to the attestation clause, the court is bound to presume that the deceased intended to do some further act--certainly the paper [**41]  is imperfect--and the presumption against it must be repelled, either by its being shown that he intended it to operate in its present form, or that he was prevented from finishing it by the act of God." In Modern Probate of Wills, 56, of unfinished or informal papers, it is said, "that the law on this subject is inflexible." The same principle was recognized in 4 H. & J. 156, Tilghman vs. Steuart, and 3 Md. 134. It may be observed also that the authorities treat the attestation clause as a more pregnant circumstance when drawn by the testator. Applying this rule of interpretation we do not consider the facts relied on by the caveatee as sufficient to repel the presumption, that, at the time of writing and signing the paper, Miss Mason intended to do some other act to give efficacy to it as her last will and testament; on the contrary there are circumstances having a very strong bearing the other way.
She had real estate at the time the will was written, which must have passed to the executor for sale, in order to effectuate the intent as to those very legatees who appear to have stood in the tenderest relations to her; yet she did not give the paper that [**42]  effect, by a formal execution per testes, and if she had then died the will could not have been 

 [*530]  fully carried out. But she actually sold this very land, out of which alone, at that time, the legacies could have been satisfied. Did she by that act design to affect those bequests, and that the others should operate? It is impossible to say. The most we can do is to speculate about her intentions, and, that which appears to be as reasonable as any other, is that, as the treaty for the sale of the land commenced about that time, it was her purpose to postpone the consummation of the act, in order that when executed it should be so altered as to operate on all her property according to its then condition, because the will disposes of all she had, and shows an intent not to die intestate as to any of her property. Although the land acquired from Zeller, in exchange, on the sale of "Richmond" would have gone in aid of the legacies that were affected by the sale of that farm, yet the land in Iowa, obtained from Dr. Harvey, would not; and, as the Zeller land was disposed of to Harvey, there was none in Washington county, on which the will could operate. Hence, we see that if [**43]  the paper had been executed these transactions must have defeated the intent expressed in it, so far as the legacies were to have been paid by a sale of land. As, in all the varying conditions of her affairs, during the two years and more that elapsed between the supposed writing and signing of the paper and her death, such as exchanging lands in Washington county, then for lands in another State, and buying land in a third State, probably with the proceeds of the Richmond farm, she never executed a will with the formalities that she was aware were necessary for the purpose of accomplishing what this paper shows she at one time intended, we think there was only a floating, unsettled purpose in her mind which she might or might not accomplish, in one way or another, as might be most expedient at the time of completing the act.
If it had appeared that she signed this paper after the sale of the Richmond farm, when she must have known that it could not affect the land, there would have been ground for the presumption that she designed it to operate, in its then unfinished form, as far as by law it might, but, even then, the dates probably would have been supplied, so as to show the time [**44]  of such change of intention.

 [*531]  Much reliance was placed on the fact that the will was found in her trunk with valuable articles. Now, the place of deposit is always an important fact, but not a controlling circumstance. Mrs. Edmonson's will was more carefully put away, and also that of David Steuart, (3 Md. 134, 4 H. & J., 168,) but the inference sought to be deduced was overcome by other other evidence. Is it not quite as probable that in the fluctuating state of her property the will was kept near her person in order that, when her affairs assumed a settled condition, she might make another, or execute that one in due form of law? A travelling trunk cannot be considered the usual depository of a will, made and intended to operate as a final disposition of one's affairs; they are commonly confided to the safe-keeping of others, or carefully put away. As we have said, her property was undergoing changes. She said to one witness that she intended to buy a farm and settle in Washington county, but on the day before her death, instead of selling and buying again, she agreed to exchange her land for land in Iowa, thereby parting with all the realty on which [**45]  the will could have operated for payment of the legacies, when she had in personalty, exclusive of negroes, not more than enough to satisfy half these bequests. She probably intended to have made a will after the exchange of the title deeds, and, on that supposition, the place where it was found is the one where she would most likely have kept it. It was not even carefully put away, but lying open near the top, easy of access when wanted. Considering her mode of living, with trunks containing valuables at other places of deposit, it is more reasonable to suppose that she did not consider it as her final disposition of property. The law in such cases treats the paper as merely evidence of an inchoate intention of what she designed, and we must dispose of it in the imperfect condition on which it is propounded for probate. We may thus defeat bounties which the deceased, doubtless had much at heart; but, though to be regretted, it cannot be avoided consistently with the principles of law to which it is the duty of the court to adhere.
Order reversed. 

146 of 196 DOCUMENTS 

JAS. P. J. HUBBARD vs. ENNALLS HUBBARD 

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 356; 1859 Md. LEXIS 80 

July 29, 1859, Decided 

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

This appeal is from an order granting an injunction and appointing a receiver upon a bill filed by the appellee against the appellant on the 16th of April 1857.

The bill alleges that the defendant is indebted to the complainant in the sum of $ 914.97, on a note in his favor, and on a note and open account in favor of Thomas Locherman and assigned to the complainant; that complainant has repeatedly called upon the defendant for a settlement of these claims and he pretended to have some set-off against the note in favor of Lockerman, and though informed by Lockerman that such was not the fact, complainant proposed to refer the matter to arbitrators for adjustment, which was agreed to by the defendants, and many of the preliminaries arranged, the referees agreed upon, the necessary bonds and papers drawn up, and appointments made from time to time for a meeting to complete the arrangements, but the defendant, though repeatedly at the place of meeting, never did complete the agreement, and, finally, repudiated the arrangement and refused to have anything to do with it, and ceased to communicate with complainant [**2]  upon that or any other subject; that, subsequently, complainant authorised Lockerman to call on the defendant for a settlement of his claims, but the latter not only refused to pay the same, or any part of them, but said he never would pay them, or any part of them, and that complainant could get them as he could, and that he, the defendant, meant to take care of himself. The bill further charges that some time before the occurrence of a fire at Keene's Landing, by which the store goods of the defendant were destroyed, the latter remarked to one Jas. Collins, as complainant is informed that he intended to wind up his business in the spring and leave the place, and since this fire, he, in conversation with one J. H. Spence, as complainant is also informed, while talking about complainant's claim, said he should never pay one dollar of it, and complainant might get it as he could. The bill also further charges that the defendant was carrying on merchandising in a store-house at Keene's Landing, belonging to complainant, since September 1855, and, during the past month, his goods, which were insured with the store which was not insured, were consumed by fire, and the defendant has made [**3]  a claim on the Baltimore Fire Insurance Company, in which he was insured, for the amount of his damages, and, in addition to this claim, he has various claims against citizens of Caroline county, in the neighborhood where he transacted his business, for goods sold on credit. The complainant charges, for so he is informed and verily believes, that the defendant is now diligently collecting the debts due him with a view to remove from his present location, and for the purpose of defrauding complainant or any other creditor he may have, by placing his means beyond the process of the law; complainant, therefore, charges that, from the acts and doings of the defendant as above stated, he has great reason for fearing, and he believes, that it is the object of the defendant to defraud him by refusing to pay any amount of his aforesaid claims, and to place, before complainant can reduce his claims to judgments and take process by execution or attachment, his debts, and goods and chattels, where complainant will not be able to reach them, and that he is and will be remediless without the interposition of a court of equity, by reason of the fraud, which the defendant is, as complainant verily [**4]  believes, about to perpetrate upon him, in manner and form as before stated.

The bill then prays for the appointment of a receiver to take charge of all the books, accounts, notes, papers, goods and effects of the defendant, collect the same and dispose of them under the direction of the court, and for an injunction restraining the defendant from collecting, assigning, transferring or releasing any debt, bill, note, account, or claim, or demand, due to him, and from disposing of any of his goods and effects, and to deliver the same to the receiver, and further enjoining the Baltimore Fire Insurance Company from paying to the defendant or to any one for him the amount claimed of them by him as aforesaid, and for general relief.

The bill was sworn to, and, on the 15th of April 1857, the day before the bill was filed, the court (HOPPER, J.) endorsed upon it an order appointing a receiver, and granting the injunction as prayed. From this order the defendant, having first filed his answer, appealed.

The bill gives the date and amount of the notes, and the amount of the account therein referred to, but not the date of the latter. It also alleges that the notes and account [**5]  were filed with the bill, but they are not in the record, which states they have not been filed. No injunction bond was required by the order appealed from or given.  

DISPOSITION:
Order reversed with costs.  

HEADNOTES:

A bill filed by a creditor against his debtor, alleging, in substance, that the complainant fears and believes that it is the purpose of the defendant to perpetrate a fraud upon him, by placing his effects beyond his reach before the complainant can obtain a judgment on his claims, does not authorize the granting of an injunction, or the appointment of a receiver. Such a case is not within the 2nd sec. of the Act of 1835, ch. 380.  

COUNSEL:
Carmichael and Brown, for the appellant, argued for a reversal of the order:

1st. Because it was passed before the bill was filed, in violation of the 1st rule of the Chancery court, as laid down in Alex. Ch. Pr., 366, which rules have been adopted and acted on as rules of practice in all the counties comprising the seventh judicial circuit.

2nd. Because it was based on supposed evidences of debt alleged to be filed as parts of the bill, but which, in fact, were not filed with the bill, and had not been filed when this appeal was taken. In the absence of these supposed evidences of debt, it was impossible for the defendant to make full answer, and he was driven to appeal.

3rd. The subpoena and injunction issued in violation of the 3rd rule of the Chancery court, as laid down in Alex. Ch. Pr., 366. The bill gives no certain description of the notes. It does not state whether they were due or not, whether given for value or not, or whether under seal or not. The amounts and [**6]  dates of the notes only are given, but there is no date given to the account, and, in the absence of all items, it must be the subject of conjecture merely. 8 G. & J., 324, Union Bank vs. Poultney.

4th. The complainant does not claim any interest as partner, or any lien on the property belonging to the defendant. It is an ordinary case of debtor and creditor, and the law affords the complainant full remedy. He does not even state that he had instituted proceedings at law, and that he had used the means of injunction and the appointment of a receiver as ancillary to his legal remedy. 7 Md. Rep., 398, Guyton vs. Flack.

5th. The bill does not make such a case as it ought to satisfy the conscience of the court that the supposed evidences of debt were in truth due, and therefore the injunction should not have been granted. It does not pray for an account, if that were proper, nor for a discovery of claims in bar, so that the injunction would, at all events, be nugatory.

6th. The court should have required a bond from the complainant as a condition precedent to the issuing of the writ of injunction. 5 Gill, 138, Alexander vs. Ghiselin. 3 Md. Ch. Dec., 331, Reynolds vs. Howard.  [**7]  

7th. The bill alleges that the complainant fears and believes the defendant designs to perpetrate a fraud on him by putting his effects beyond his reach before he can obtain judgments at law and issue execution thereon, but the facts stated in the bill do not begin to make out a case of fraud. 4 Gill, 364, Warfield vs. Owens.

8th. If there was no case to warrant an injunction, there was none certainly for the appointment of a receiver. If there was a prima facie case for an injunction, still the defendant ought to have been allowed opportunity to show cause why a receiver should not be appointed. 2 Md. Ch. Dec., 157, Drury vs. Roberts. 3 Md. Rep., 99, Furlong vs. Edwards. 9 Gill, 472, Speights vs. Peters.

No counsel appeared for the appellee.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*359]  LE GRAND, C. J., delivered the opinion of this court.
This case we regard as concluded by the decision in Uhl 

 [*360]  vs. Dillon, et al., 10 Md. 500. That was a case which, although in its general features somewhat like the present, was stronger in its allegations of fraud, but the court did not consider [**8]  it such an one as to justify the granting of an injunction and the appointment of a receiver. It alleged that the complainant, having sold his real estate and received the money for it, was proceeding to collect his debts, as they were informed and believed, with the intention to abscond to parts unknown, and thereby defraud his creditors. Here the principal allegation is, that the complainant fears and believes that it is the purpose of the defendant to perpetrate a fraud on him by placing his effects beyond his reach before he can obtain a judgment. Neither the case in 10 Md. Rep., to which we refer, nor this one, is within the 2nd section of the Act of 1835, chapter 380.
Order reversed with costs. 

147 of 196 DOCUMENTS 

JULIUS P. PFELTZ and others vs. SARAH PFELTZ and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 376; 1859 Md. LEXIS 83 

July 29, 1859, Decided 

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

This appeal is from an order granting an injunction and appointing a receiver upon a bill filed on the 23rd of October 1857, by the appellees against the appellants.

The bill alleges that George C. Pfeltz, in his lifetime, purchased from J. J. Speed, trustee, under a decree in chancery, a tract of land in Baltimore county, containing one hundred and twenty-one acres, more or less, described in a deed therefor from said Speed, as trustee, to said George, in fee-simple, dated the 26th of June 1847, which was duly recorded, and is filed as an exhibit with the bill; that after his purchase the said George entered into possession of the land, claiming title thereto under this purchase and deed, and continued in the peaceable possession thereof until April 1855, when he died, leaving the complainant, Sarah, his widow, and the other complainants, his children, all of whom are infants under the age of twenty-one years, and, also, leaving a will, which is filed as an exhibit with the bill, by which he devised this land to the complainant, Sarah, during her widowhood, or until his youngest child should arrive at full age, she to receive [**2]  the rents, issues, and profits thereof, and apply the same to the support, education and maintenance of herself and the testator's children, and should she marry, or when his youngest child shall attain the full age of twenty-one years, whichever shall first happen, then she is to sell the same and divide the proceeds, after payment of her dower interest therein, among his children, share and share alike; that, after the death of the said George, the complainants, claiming under this will, went into the peaceable and quiet possession of this land, and continued to receive the rents and profits thereof, and to apply the same to the purposes of the will, until on or about the month of May last, when the defendant, Julius P. Pfeltz, unlawfully, violently, and contrary to equity and good conscience, entered upon and into the possession of said premises, and has since continued to hold the same unlawfully and against equity and good conscience, to the great and manifest wrong and injury of the complainants, withholding from them any use or benefit of said premises, whereby they are, in great measure, deprived of their proper legal and equitable support and maintenance of and from the rents [**3]  and profits of said land, he, the said Julius P. Pfeltz, not denying some right and title of the said George, but sometimes pretending and giving out in speeches that the right and title of said George was only equitable and not legal, and feigning and pretending some alleged forfeiture thereof, and pretending that his children, the other defendants, are entitled to said land, because of such alleged forfeiture, and that the legal estate is outstanding, in a certain Job Smith, in trust for their use under some pretended deed, and, at other times, pretending some other excuse for his said violent, unlawful and inequitable conduct in the premises, all of which pretences and excuses the complainants aver are false and without foundation in law or equity. The bill also charges that the said Julius P. Pfeltz is utterly insolvent, and then prays that he may be compelled, by decree, to surrender and yield up said land to the complainants, as in their former estate, and to account with them for the rents and profits thereof whilst so held by him, and pay over the same to the complainants for their own use and benefit, according to the terms of said will, and that the title of the complainants [**4]  may be declared and quieted, and that, pendente lite, a receiver may be appointed of said rents and profits, and that said Julius P. Pfeltz may be enjoined and compelled to surrender up the premises to the receiver, when appointed, and for general relief.

On the same day that the bill was filed, the court (KREBS, J.) passed an order appointing a receiver, and granting an injunction as prayed, from which, after answer filed, the defendants appealed.  

DISPOSITION:
Order reversed without costs, and cause remanded.  

HEADNOTES:

A testator being seized of a legal estate in fee in certain land, devised the same to his widow, during her widowhood or until their youngest child attained the age of twenty-one years, for the support of herself and their children, with remainder to the children, in fee, subject to the dower of the widow. Upon a bill filed by the widow and the children, charging against the defendant an unlawful and violent entry upon the land, taking the products thereof, and depriving the complainants of their means of support and maintenance, and praying that he may be compelled to surrender the land to them, and for an injunction and a receiver of the rents and profits, pendente lite. HELD:

1st. That the facts charged in the bill do not show that the defendant was committing irreparable damage to the property, to prevent which an injunction was necessary.

2nd. That the case presented by the bill is proper for redress at law, where the remedy is ample and complete, either by action of trespass, ejectment, or under the statutes for a forcible entry, and in such case a court of equity cannot rightfully interfere. 

COUNSEL:
Chas. F. Mayer and Coleman Yellott for the appellants.

1st. The bill asserts a legal fee-simple title in the appellees, and an unlawful and violent entry by the appellant, Julius P. Pfeltz. It does not charge that he is doing irreparable waste. Under such a state of facts the appellees can have full and adequate relief without resorting to a court of equity, 1st, by proceedings under the statues for forcible entry and detainer. 1 H. & McH., 428, Proprietary vs. Brown. 9 G. & J., 107, Isaac vs. Clarke. 2 Harr. Ent. 59, 66. Statutes 5 Richard II., ch. 8. 15 Richard II., ch. 2. 8 Henry VI., ch. 9, and Acts of 1816, ch. 187, and 1832, ch. 121; 2nd, by action of ejectment; 3rd,  [**5]  by action of trespass quare clausum fregit.

2nd. The appellees, having adequate remedy at law, could not ask relief in a court of equity. Story's Eq. Pl., secs. 473, 490. 1 H. & G., 220, Drury vs. Conner. 6 Gill, 391, Methodist Prot. Ep. Church vs. Mayor & C. C. of Balto. 2 Md. Rep., 320, Brumbaugh vs. Schnebly. 4 Md. Rep., 26, Clayton vs. Carey. 7 G. & J., 191, Berrett vs. Oliver.

3d. This proceeding is virtually an ejectment bill, which is not allowed by courts of equity. Story's Eq. Pl., sec. 476.

4th. The case made by the bill did not authorise the appointment of a receiver, or the issuing of an injunction. 3 Md. Ch. Dec., 456, Herr vs. Bierbower. Ibid., 503, Carlisle vs. Stevenson. 3 Md. Rep., 480, Ches. & Ohio Canal Co. vs. Young. In the case last cited, at page 490, this court denies the doctrine that, because a party asserts only an equitable title, and cannot succeed at law, a court of equity gains jurisdiction and may exercise it in the manner here claimed. It might be shown from the will of George C. Pfeltz, the exhibited source of the appellees' title, that a legal title is in the widow for protecting all rights of herself and her infant children, but that [**6]  ascertainment is not at all necessary. A bill in equity cannot be made to serve for an ejectment or for a writ of forcible entry, or for an action of trespass. Story's Eq. Pl., sec. 476. The cases cited under the appellees' second point are far from establishing the doctrine indispensable for their bill, that because an infant asserts the right to land, and is excluded by another from possession, the person in possession must be deemed guardian, and may be called by bill in equity, not only to a trial of title, but actually through the interposed appointment of a receiver to surrender the possession, and at once. Even where a party has been made amenable in equity to an infant for mesne profits as quasi guardian, and by reason of entry without title superior to the infant's, a previous determination under ejectment, of title against the pernor of the rents and profits, is necessary. 1 H. & G., 220, Drury vs. Conner. Such an expansion of chancery power, in using a bill in equity, not for even trying title, but only for challenging title, and through an injunction deciding it instanter for the complainant, and then, through a receiver and his engrossing power over the product of the [**7]  land, divesting possession, is grossly and oppressively mischievous. Such is the present adventure in equity.

T. Parkin Scott, for the appellees, argued:

1st. That the infant children of George C. Pfeltz, deceased, have an interest in the property under the will of their father, who had title to, and died in possession of the land, which was transmitted to them. 8 Md. Rep., 517, Binnerman vs. Weaver.

2nd. That the appellant, Julius P. Pfeltz, having taken possession of their estate, is accountable in equity, whether their estate be legal or only equitable. 1 Gill, 370, Chaney vs. Smallwood. 8 Gill, 397, Barnes vs. Compton. 2 Md. Ch. Dec., 117, Swan vs. Dent. 7 Gill, 366, Richards & Wife vs. Swan, et al.

3rd. That this is a proper case for an injunction and receiver, and especially as the appellant, Julius P. Pfeltz, is insolvent. 1 Md. Ch. Dec., 70, Clark vs. Ridgely. 4 Gill, 34, Hamilton vs. Ely. 1 Md. Rep., 543, White vs. Flannigain.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*381]  BARTOL, J., delivered the opinion of this court.
None of the authorities cited by the appellees are sufficient to establish the jurisdiction [**8]  of a court of equity, over the case presented by the bill of complaint. The title of the complainants' testator, George C. Pfeltz, is alleged to have been a legal estate in fee, which, by his will, was devised to his widow, the complainant Sarah, during her widowhood, or until their youngest child shall attain the age of twenty-one years, for the support of herself and their children, the other complainants, with remainder to the children in fee, subject to the dower of the widow. The acts of the appellant, Julius P. Pfeltz, complained of in the bill, are an unlawful and violent entry upon the land, taking the products thereof, and depriving the complainants of their means of support and maintenance; and the relief prayed is, that "said Julius P. Pfeltz may, by decree of this court, be compelled to surrender and yield up said land to the complainants, and account with them for the rents and profits, and pay over the same to the complainants; that the title of the complainants may be declared and quieted; and that, pendente lite, a receiver may be appointed of the rents and profits, and that Julius P. Pfeltz may be enjoined and compelled to surrender up the premises to the receiver, [**9]  when appointed.
The facts charged in the bill do not show that the appellant was committing irreparable damage to the property, to prevent which an injunction was necessary. Hamilton vs. Ely, 4 Gill 34. The Chesapeake & Ohio Canal Co., vs. Young, 3 Md. 480. Davis vs. Reed, 14 Md. 152.
The object of the proceeding is to obtain possession of the land, and the case presented is proper for redress at law, where the remedy is ample and complete, either by action of trespass, ejectment, or by a summary proceeding under the statutes for a forcible entry. In such case a court of equity cannot rightfully interfere. Story's Eq. Pl., secs. 473, 476, 490. Drury vs. Conner, 1 H. & G. 220. 2 Md. 320, (and note 325,) 4 Md., 26.

 [*382]  The case is not within the principle decided in Drury vs. Conner, 1 Har. & Gill 220, and Chaney vs. Smallwood, 1 Gill 367, or Barnes & Fergusson, vs. Compton's Adm'rs, 8 Gill 391. Here the legal estate, as it appears from the bill, (and on this appeal our attention must be [**10]  confined to what is therein stated,) is vested in the complainant Sarah, who is sui juris, and may assert, on behalf of herself, and her children the cestuis que trust, the legal remedies against the appellant.
The order of the Circuit court granting injunction and appointing a receiver will be reversed.
Order reversed without costs, and cause remanded. 

148 of 196 DOCUMENTS 

SAMUEL F. MARTIN vs. DAVID M. GOOD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 398; 1859 Md. LEXIS 86 

July 29, 1859, Decided 

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

Assumpsit brought on the 13th of December 1855, by the appellee against the appellant. Plea, non assumpsit, with leave to the plaintiff to offer any evidence which would be competent and proper, if there were counts in the declaration on the agreement stated to have been made between the parties in the following paper, which was filed in the case before the trial:

"Articles of agreement made 1st of September 1847, between David M. Good and Samuel F. Martin, partners, of the firm of Good & Martin, both of Washington county, State of Maryland: Whereas, the firm has been dissolved for some time and the business remains in an unsettled state, the partners have this day come to a conclusion to divide the assets of the firm and close the business. And as the parties are desirous of having a statement and condition, and considerations on which said business has been closed, and with a view of avoiding all misunderstanding in relation to the matter, we do hereby state such agreement and consideration to be, that the said David M. Good agrees, on his part, to pay sundry judgments in favor of John H. Duvall & Co., Jacob Albert, J.  [**2]  W. Curley & Co., Powles, Hyde & Wallis, Marriott, Marye & Co., out of his own private funds, and, in consideration of which, the said Good agrees to take the accounts in favor of Good & Martin, contained in a list in folios 482, 483, 484, amounting to $ 1066.19, and make out of them what he can, and apply them to his own private use. The said Samuel F. Martin, on his part, agrees to pay an account in favor of Heiser & Dougherty, an account in favor of Martin & Kemp, and a note in favor of widow Martin, out of his own private funds, and, in consideration of which, the said Martin agrees to take the accounts in favor of Good & Martin, contained in a list on folios 477, 478, 479, amounting to $ 1494.69, and make out of them what he can, and apply them to his own private use."

1st Exception. The plaintiff proved by Lantz, a competent witness, that he had known the plaintiff and defendant for a long time, and was acquainted with the handwriting of each of them, and that the signatures to the following note, shown to him and offered in evidence by the plaintiff, were the genuine signatures of the plaintiff and defendant respectively:

"$ 450. Twelve months after date we promise [**3]  to pay to the order of Barbara Martin, four hundred and fifty dollars, with interest for value received. Witness, our seal and signature, this 29th day of January 1846.

D. M. GOOD,   (Seal.) and SAM'L F. MARTIN,   (Seal.)"

This witness further proved that the plaintiff and defendant in 1846 and 1847, were partners in trade in the town of Leitersburg, Washington county, and, about that time, dissolved partnership. Witness was clerk of the firm while it existed under the name of Good & Martin. Barbara Martin, the payee of the above note, was a widow and the mother of the defendant, and witness knew of no other debt due by the firm to her. Some time after the partnership business had been discontinued, witness was present at a settlement between the plaintiff and the defendant at their store, when it was agreed that the accounts due the firm should be divided into two portions, and each partner should take one for his own use and should pay certain debts due by the firm. Witness made out the accounts. They were divided into two parcels, and each partner actually took and received the parcel allotted to him under their agreement. Witness cannot now remember what was the [**4]  amount of the accounts taken by each partner, or whom the accounts were against, nor what were the debts which each assumed to pay, and being asked whether the above note was one of the debts agreed to be paid by Martin, says he has no recollection of it. The plaintiff's counsel then showed the witness the paper above stated and filed in the case, for the purpose of refreshing the recollection of the witness, and asked him if that paper was in his handwriting, and if so, whether it contained a correct statement of the agreement between the plaintiff and defendant? to which witness answered that it was in his handwriting, but he had no recollection of the paper, and if it had not been shown, he should not have known that it had ever been written; he does not remember when or where he wrote it, but he believes it was written in the store; or whether it was on the day of the settlement or a week afterwards; he thinks it was on the day; it must have been within a week; he does not remember how he came to draw it, or who asked him to draw it, whether Good or Martin, or both, or either of them, but he could not have been induced to put in it anything which he knew to be wrong or was not [**5]  part of the agreement as he understood it; if either Good or Martin had asked him to draw it he would have done so, and he does not know that Martin knew anything about it; witness was about eighteen or nineteen years of age at the time, but he is sure he would not have drawn it if he had not thought it was right; he has no doubt the paper contains a correct statement of the terms of the agreement, as he was present when the agreement was entered into, and the paper was written about that time, and he is sure he would not have stated anything in the paper he did not believe to be true. The witness also stated, in reply to a question by the plaintiff's counsel, that his memory was not refreshed by reading the paper, so as to enable him to recollect the amount of accounts taken, or the particular debts assumed by each partner. He was then asked by the plaintiff's counsel whether he had any doubt that the terms stated in this paper, in reference to the accounts to be taken and the debts to be paid by each partner, were the terms of the agreement which was made in his presence, as testified to by him? to which he replied that he had no recollection of the particular accounts to be taken [**6]  and the debts to be paid by each partner, but from the paper being in his handwriting, he had no doubt it did contain the true terms of the agreement made in his presence. The plaintiff's counsel, after objection being made by the defendant's counsel to this mode of examination and kind of proof, then read over in detail to the witness each and all the terms of the contract, as stated in this paper, and asked him, as to each, if he had any doubt whether that was part of the agreement made between the parties in his presence, and he replied, as to each, that he had no doubt it was, although, at the time of testifying, he had no recollection of the particular accounts to be taken or of the particular debts to be paid by each; and, upon cross-examination, being asked whether, in his conscience, and on the oath he had sworn, he was prepared to say, that the contents of the paper truly stated the agreement he had heard between the parties? said that he was prepared to swear that the paper contained the agreement as he understood it. The court (PRICE, J.) overruled the objection of the defendant's counsel, and allowed the testimony of the witness so taken to be given to the jury for the [**7]  purpose of proving the contract sued on in this case. To this decision the defendant excepted.

2nd Exception. The plaintiff then offered in evidence the record of a suit against him by the administrators of Barbara Martin, on the note above mentioned, in the Circuit court for Washington county, showing the recovery of judgment against him and the payment thereof under execution issued thereon. The defendant then proved by the same witness, Lantz, that whilst the plaintiff and defendant were carrying on their business as merchants, they usually signed notes given by them as partners, in the name of the partnership, Good & Martin; that Good was a sharp and intelligent merchant, and that the word "and," opposite the signature to the note offered in evidence, was in the handwriting of Good, as well as the body of the note. The defendant then, by his counsel, offered to prove by this witness that the general reputation of Good among his neighbors was, that he was a tricky man and would take liberties with paper in his hands, thereby altering its character, the counsel stating that this proof was offered to show that the witness might have been imposed on, and he should follow up this [**8]  testimony by further proof tending to show that the note given in evidence in this case had been altered. The court refused to allow any of the testimony so offered to be given to the jury, and to this ruling the defendant excepted.

3rd Exception. The defendant then proved by a son of Barbara Martin, the payee of the note offered in evidence, and who lived with her for several years before her death, and attended to her business, that, during that time, he repeatedly saw this note, and is certain that the word "and" was not opposite the signatures at that time, and has been put to it since. Upon all the testimony the defendant then asked the following instructions:

1st. If the jury shall believe that the note given to Mrs. Martin, and offered in evidence in this case, was given for the individual debt of Good, the plaintiff is not entitled to recover, unless they shall believe, from the proof in the cause, that the defendant subsequently agreed to pay the same.

2nd. If the jury shall believe the note in favor of Mrs. Martin was a partnership transaction, they must find for the defendant, unless they shall be satisfied from the evidence that the affairs of the partnership [**9]  have been finally settled, and that Martin agreed to pay the same.

3rd. The plaintiff is not entitled to recover in this case, on the special contract, unless he proves the whole of the special contract, and in the absence of proof as to the claims contained in folios 482, 483, 484, and in folios 477, 478, 479, the whole of said contract is not proved, and the plaintiff is not entitled to recover.

4th. If the jury shall believe that the special contract in this case has been sufficiently proved by the plaintiff, it is an entire contract, and the plaintiff is not entitled to recover unless he proves that he has performed all on his part to be performed.

5th. If the jury shall believe that the note to Mrs. Martin has been altered by Good for the purpose of changing the character of said note, and making it a note to bind the partnership, he is not entitled to have any recovery for any part of the same.

The court granted the second prayer and refused the others, and to this refusal the defendant excepted. The verdict and judgment were in favor of the plaintiff for $ 772.41 damages and costs, and the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A paper containing the terms of settlement between two partners, by which each was to take certain specified accounts of the firm and pay certain specified debts, was placed in the hands of a witness to refresh his memory. The witness recognized the paper as in his handwriting, but did not remember where or when he wrote it, though he thought it was on the day of the settlement, and it must have been within a week thereafter. His memory was not so refreshed, by reading the paper, as to enable him to recollect the amount of accounts taken or the particular debts assumed by each partner, but from the fact of its being in his handwriting, he had no doubt it did contain the true terms of the agreement made in his presence, and each and all the terms of the contract, as stated in this paper, being read to the witness, he answered as to each, he had no doubt it was part of the agreement made between the parties in his presence. HELD: That this evidence was properly received.

Where the writing is neither recognized by the witness as one which he remembers to have seen before, nor awakens his memory to the recollection of anything contained in it, but, nevertheless, knowing the writing to be genuine, his mind is so convinced that he is, on that ground, enabled to swear positively to the fact, the testimony will be received.

Evidence that the general reputation of the plaintiff among his neighbors was that he was a tricky man, and would take liberties with paper in his hands, thereby altering its character, is not sufficient to prove that he had perpetrated a fraud on the defendant, nor is it, when followed by testimony, showing that the note given in evidence had been altered, sufficient or admissible to prove forgery or alteration of the note by the plaintiff.

Two partners settled their business, each agreeing to take certain accounts and pay certain debts of the firm. One of them, on being compelled to pay a debt which the other had so agreed to pay, brought suit on this agreement. HELD:

That it was not a condition precedent to the plaintiff's right to recover, that he should prove he had paid all the debts which he had assumed by the agreement.

The addition of the word "and" between the signatures of two parties to a sealed note, does not change their liabilities on it.  

COUNSEL:
Jervis Spencer, for [**10]  the appellant, argued:

1st. That the evidence of Lantz, to prove the special contract sued on this case, was incompetent and inadmissible, and ought to have been rejected. The memory of the witness was not refreshed by reading the paper, and he says that, independently of the paper, he knows nothing of the matters contained in it. The rule of evidence in such cases is stated in 1 Phillip's Ev., 209: "A witness can depose only to such facts as are within his own recollection. But to assist his memory he may use a written entry or memorandum, or the copy of a memorandum; and if afterwards he can positively swear to the truth of the fact there stated, such evidence will be sufficient. But if he cannot, from recollection, speak to the fact any further than as finding it stated in a written entry, his testimony will amount to nothing." The same rule is stated in 1 Starkie on Ev., 154, 155. See also on this point, Cowen & Hill's Notes to Phillips, note 377, page 412, in 4 Phillips, (3rd Ed.,) 730; 1 Phillips, (3rd Ed.,) 419; 3 Wash. C. C. Rep., 109, Richardson vs. Golden. 4 Harrington, 265, Redden vs. Spruance, et al.; 3 Ala., 100, Vastbinder vs. Metcalf; 11 Wend., 485, Feeter vs. Heath;  [**11]  1 A. K. Marshall, 188, Owings vs. Shannon; 1 Richardson, 234, O'Neale vs. Walton; 4 Ala., 46, Langford vs. Cummings, et al. 4 Littell, 338, Key vs. Lynn; 6 Pick., 222, Glover vs. Hunnewell; 5 Wend., 301, Lawrence vs. Barker; 16 Maine, 248, Clark vs. Bigelow; 3 Md. Rep., 269, Lewis vs. Kramer, et al.; 11 Md. Rep., 276, Howard vs. Carpenter.

2nd. The rebutting evidence of Lantz, on his examination by the defendant, ought to have been admitted. The evidence, that the appellee was a tricky man, was important in association with the previous testimony of the witness, to show that the witness had been imposed upon by him, and that the written memorandum shown was a contrivance of his. That he was a tricky man and would take liberties with paper in his hands, thereby altering its character, was also important in association with the testimony of the witness, Martin, to sustain him in the proof that the paper was actually altered on its face.

3rd. The defendant's first prayer should have been granted. Good sued for reimbursement for a sum he had paid on a note signed by himself first and then by Martin, and drawn in the handwriting of Good. The abstract proposition of this prayer [**12]  cannot be disputed. If the note was given for the individual debt of Good he was not entitled to reimbursement. The refusal of this prayer was tantamount to an instruction that the jury were bound to believe it was a partnership note, and that Martin had assumed to pay it. Did the facts warrant it? That it was signed by both was no evidence of partnership. 11 Johns., 161, Hopkins vs. Smith. The note does not purport to be a partnership note. It is in the handwriting of Good. According to the testimony of Lantz, it was not drawn as Good & Martin drew their firm paper. The jury might infer that there was some reason for this, and would not overlook the fact, that in ordinary transactions the principal party signs first. If Lantz's testimony was competent, it goes no further than to show the partnership was indebted to a widow Martin, but what widow Martin, or for what amount, his testimony does not show. We hold that it was not proper for the court to take from the jury the question as to whether this note was given for the individual debt of Good.

4th. The third and fourth prayers should also have been granted. It is certain, if there was a contract, that the claims which the parties [**13]  were to take respectively were as much a part of it as any thing else. Without showing what they were, the rights of the parties were wholly indefinite. The receipt of the claims due the firm, which Martin was to take, constituted the consideration for his assumption to pay the widow Martin's claim against the firm, if there was such an assumption. Again, upon the proofs in the case, how could it be said that Martin had a right to any one claim, or if he should recover it he might not be called upon by Good to account for it to him? The consideration of every simple contract must be set forth and proved.

5th. The fifth prayer ought to have been granted. There was evidence that the paper had been altered in the handwriting of Good.

1. Nevitt Steele for the appellee:

1st. It is difficult to determine from the manner of taking the first exception, to what it was intended to apply, whether to the testimony preceding or that following the objection; and as it cannot apply to both, the exception is futile because the same evidence as that objected to was permitted to go to the jury without objection, and hence the appellant has received no injury from this ruling. But the [**14]  ruling was correct, supposing the exception was properly taken. The witness, Lantz, was present at, participated in, and had full knowledge of the agreement between the plaintiff and the defendant in the settlement of their partnership affairs, and prepared the written statement of the terms of that settlement at or about the time it was made. He swore at the trial that he was sure he would not have put anything in the statement which was not true, and that he had no doubt that the particulars of the settlement contained in that statement were each and all of them the terms of the agreement made between the parties. Under these circumstances, it was competent for the witness to testify to the truth of the facts stated in the paper produced at the trial, from the paper itself, although he had no recollection of the facts independently of the paper, and the rule of evidence which permits a witness so to testify, is peculiarly applicable to a case like this, where the parol agreement to which the proof refers, was entered into ten years before the trial of the cause, and where the witness recollects and proves the general terms and character of the agreement, and only relies on the paper [**15]  for certain amounts and names of persons. It must be borne in mind that the paper was never offered in evidence, the witness merely having given parol proof of the contract from the paper, after having looked at and identified it as in his handwriting, and this distinction will explain the conflict in some of the American cases on this point. The rule of evidence is correctly laid down in 1 Greenlf. on Ev., sec. 437, and the contrary doctrine in 1 Phillips, 209, is not sustained by the authorities cited. In 2 Nott & McCord, 334, State vs. Rawls, it is clearly shown that Mr. Phillips has mistaken the case of Doe vs. Perkins, 3 Term. Rep., 753, relied on by him for the position that a witness cannot testify, after reading the paper, unless he can speak of the facts independently of the paper. See, also, on this point, 2 Camp., 112, Burrough vs. Martin; 1 Carr. & Kir., N. P., 320, Topham vs. McGregor; 2 Mann. & Ryl., 5, Maugham vs. Hubbard; 3 Rhode Island Rep., 132, State vs. Colwell; 33 New Hamp., 167, Bartlett vs. Hoyt; 16 Wend., 595, Merrill vs. Ithica Rail Road Co.; 4 Sandf., 129, Huff vs. Bennett; 15 New York Rep., 485, Halsey vs. Sinsebaugh; 3 Md. Rep., 286, Lewis vs. Kramer, et [**16]  al.; 4 Phillips (Cowen & Hill's notes) note, 377.

2nd. The evidence offered by the defendant in the second exception, as to the general reputation of Good, the plaintiff, was properly ruled out. It was not competent for the defendant to prove a forgery, if that was his object, in this way, and so far as the alteration of the note was concerned, it was immaterial who made it, or whether it was made at all, for the insertion of the word "and" in no manner altered the character of the paper, and had no effect whatever.

3rd. The prayers that were rejected, were properly refused. The first, because there was no evidence in the cause that the single bill was given for the individual debt of Good. The third, because it called upon the court to say that proof of the contract in the very terms and language in which it was made by the parties to it, was insufficient to prove the contract. The fourth, because upon the true construction of the contract offered in evidence, the payment by Good of the debts which he had agreed to pay, was not a condition precedent upon which depended the obligation of Martin to pay the note to Mrs. Martin. 5 G. & J., 255, Watchman vs. Crook. 3 Bing., N.  [**17]  C., 355, Stavers vs. Curling. The fifth, because the only evidence as to any alteration of the note, was the testimony offered to show that the word "and" had been placed opposite the signature, and such an alteration would neither have "changed the character of the note," nor "made it a note to bind the partnership," as the prayer called upon the court to say.  

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

OPINIONBY:
TUCK 

OPINION:

 [*408]  TUCK, J., delivered the opinion of this court.
The objection to evidence made by the appellant is to be found in the middle of the statement of facts, it not appearing whether the point was raised on what precedes or on that which follows the objection. Although this was remarked upon at the trial, we think it can make no difference, because as the objection cannot be considered as applying to both portions of the statement, and, as the evidence, before and after the objection is substantially the same, one or the other must be considered as having gone to the jury without objection. But, as the question is an important one, and was fully argued, 

 [*409]  we shall not regard the manner of making the objection, but decide the point [**18]  intended to be raised for review, and that is, whether the evidence of the witness as to the terms of the agreement between the parties was properly admitted, after he had said that he had no recollection of the paper, and that his memory was not so refreshed by reading it as to enable him to recollect the amount of accounts taken, or the particular debts assumed by each partner?
Whatever rules may have existed, as shown by the early cases, requiring that the witness should be able to say, after reading a memorandum, that his memory was so far refreshed as to enable him to testify to the facts therein stated, independently of the memorandum, it is very certain that they are not now enforced with the same strictness as formerly. In this country and in England, the doctrine has been extended and applied to cases where justice would, otherwise, have failed, and, as we think, on grounds quite compatible with fundamental principles. For example, where it became necessary to prove the receipt of money, and the witness said that from seeing the entry in his own book, made by himself, he had no doubt he had received the money, his testimony was allowed. Maugham vs. Hubbard, 15 Eng. C. L. Rep. 147. [**19]  8 Barn. & Cress. 14. The same principle applies where persons are called to prove the execution of deeds, and other writings to which their names appear as witnesses, or to speak of dates, amounts and other details which a man cannot carry in his mind, but of which they have made memoranda. They may have no recollection of the facts, and yet, with the utmost safety, be willing to swear that they have no doubt of their occurrence, merely because their handwriting would not have appeared in connection with them if they had not taken place as therein stated. We might refer to many authorities in support of this view, but content ourselves with naming 1 Smith's Leading Cases, 139, Price vs. Earl of Torrington; 4 Ph. Ev. (Cowen & Hill, 726, note 377,) 1 Greenl. Ev., sec. 437; 16 Wend. 586, where the cases may be found. In The State vs. Rawls, 2 Nott & McCord 331, it is shown that the doctrine in 1 Phillips' Ev., 209, that a witness cannot 

 [*410]  testify, after reading the memorandum, unless he can speak of the facts independently of the memorandum, is not sustained by the cases referred to by him; and [**20]  several judges, whose attention appears to have been particularly called to the subject by the remarks of Mr. Justice Nott, have expressed their concurrence with him, and, indeed, the annotators upon that valuable treatise have signalized his opinion as a "bold and successful vindication of the English cases from the narrow construction of Phillips." Cowen & Hill's Phillips, Vol. 4, page 731, note 377. See Topham vs. M'Gregor, 1 Carr & Kir. 320, in 47 Eng. C. L. Rep. 2 Adol. & Ellis 210. 15 Wend. 193, Clark vs. Vorce. 16 Wend. 586, Merrill vs. Ithaca & Owego R. R. Co. Halsey vs. Sinsebaugh, 15 N. Y., (1 Smith,) 485. Haven vs. Wendell, 11 N.H. 112. Watson vs. Walker, 3 Foster 471. State vs. Colwell, 3 R.I. 132. Bartlett vs. Hoyt, 33 N.H. 151.
From an examination of the adjudged cases, we are of opinion that the law applicable to the point under review is correctly stated in 1 Greenlf. Ev., sec. 437, as follows: "Where the writing neither is recognized by the witness as one which he remembers to have seen before, nor awakens [**21]  his memory to the recollection of any thing contained in it, but nevertheless, knowing the writing to be genuine, his mind is so convinced that he is, on that ground, enabled to swear positively to the fact," the testimony will be received. The examples put show the reasonableness of the doctrine, and that the ends of justice require it to be so. A more recent author, whose conclusions, we think, are generally sustained by the authorities, states the English doctrine substantially in the same way. Powel on Evidence, 308, in 96 Law. Lib. 119. Here the witness stated, that from the paper being in his own handwriting, he had no doubt it did contain the true terms of the agreement made in his presence, and upon cross-examination he gave, in effect, the same testimony. If more were required in such cases, memoranda to refresh the memory would be of little use, because few men could undertake to relate the particulars of such transactions, independently of the paper, and the purposes 

 [*411]  of judicial tribunals, in promoting the ends of justice, would be defeated.
We are not aware of any rule of evidence that sanctions the appellant's attempt to get in the testimony proposed [**22]  in the second exception, and excluded by the court. It was insufficient to prove that the witness had been imposed on by Good in preparing the agreement; in other words, that he had perpetrated a fraud on Martin, which was one object alleged in the offer, and the same may be said of the purpose to follow it by evidence that the note had been altered. Forgery or alteration of paper cannot be proved in that loose and uncertain way. Besides, the inquiry was not within the issue. A man's character might be ruined by these means, without any power, on his part, to rebut the charge, for when a party is required to prove his case, in an action of this kind, it is not understood that he must be prepared to defend his reputation for honesty when assailed by the other side. The exceptions as to the admissibility of evidence being disposed of, we proceed to the prayers.
The first was properly refused, because there was no evidence that the note in question was given for the individual debt of Good, but there was proof tending to show that it was a partnership transaction, and of that view of the case the defendant had the benefit by the allowance of his second prayer.
The third and fourth were [**23]  also properly refused. The case did not require proof of payment of all the debts which Good had agreed to pay as a condition precedent, before he could recover for this one which he had paid for Martin. If Good had not performed his contract, and Martin had been made to pay debts assumed by him, it might have been shown, but the plaintiff was not required by the law to open that inquiry. The partnership had been settled on the terms proved, and each became liable for whatever either might have to pay on the other's account, and all that either claimant could be required to show, in an action for money so paid, was the agreement and payment of the sum demanded. Of course matter of defence would have to be met as in other cases.
There was no evidence from which the jury could have 

 [*412]  found that Good had changed the character of the note, so as to bind the partnership; on the contrary, the proof was that it was originally a debt of the firm, and that Martin had agreed to pay it. Adding the word "and" did not change the liability of the parties, there was, therefore, no warrant for the fifth prayer.
Judgment affirmed. 

149 of 196 DOCUMENTS 

THOMAS M. WATKINS, (Free Negro,) vs. THE STATE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 412; 1859 Md. LEXIS 87 

July 29, 1859, Decided 

PRIOR HISTORY:
 [**1]  ERROR to the Criminal Court of Baltimore City.

The writ of error in this case issued out of the Circuit Court for Baltimore city, on the 9th of April 1859, and directed to the Criminal Court of Baltimore city, brings up for review the judgment of the latter court (STUMP, J.) pronounced upon the plaintiff, in error. The indictment and judgment are fully stated in the opinion of this court.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

The Act of 1858, ch. 324, for the punishment of convicted free negroes, provides, that in case of their conviction "of the crime of simple larceny, to the value of five dollars and upwards, they shall be sentenced to be sold at public sale, as slaves, for the period of not less than two, nor more than five years," and for various other crimes they were to be sold, "either within or beyond the limits of the State," for certain periods. HELD:

That for the offence of simple larceny the court has no power to sentence the party to be sold "out of the limits of the State; the only sentence that can be passed is that prescribed by the Act, viz., that the party shall "be sold at public sale," for the prescribed period, and under such sale he may be purchased either by a citizen of the State or a non-resident.

A judgment, as shown by the docket entry, "to be sold for the period of five years out of the limits of the State," was extended in the record, "be sold out of the State of Maryland, at public sale, as a slave, for the period of five years, under the provisions of the Act of Assembly in such case made and provided." HELD:

That the judgment as extended is more than a technical amplification of the docket entry; it is not the same judgment; its legal effect and intendment are changed by the insertion of the words "at public sale."

The omission of the court, in passing sentence upon a free negro convicted of simple larceny, to direct the sale to be public, as required by the Act of 1858, ch. 324, renders the judgment illegal and void.

The effect of a reversal for error in the judgment itself, after trial and a proper verdict, is to defeat all former proceedings in the cause.  

COUNSEL:
Chas. E. Phelps for the plaintiff in error:

The leading question presented upon this record is, whether upon conviction of a free negro for larceny, the court is authorized to sentence him to be sold out of the limits of the State? The whole argument for the plaintiff in error in support of the negative of this proposition, will refer, as its basis, to the elementary principle: "That no other punishment can be inflicted than such as the laws prescribe; that, consequently, judges in the exercise of their discretion can invent no new penalties to suit the offence, or to gratify their own caprices, and that, therefore, they can inflict no punishment which did not exist at common law, except in those cases where the law has expressly allowed its infliction." 1 Chitty's [**2]  Cr. Law, 710, 712. 4 Bl. Comm., 377, 378. Since neither slavery nor banishment are to be found in the common law catalogue of penalties applicable to the crime laid in this indictment, and as the sentence in this case undertakes to inflict both, it follows that the judgment in question must stand or fall only upon the Act of 1858, ch, 324, entitled "An Act to modify the punishment of free negroes convicted of larceny and other crimes in this State."

1st. This statute (sec. 1) enumerates eight distinct crimes, or classes of crimes, to each of which a different punishment is affixed, varying in severity according to the degree of criminality. In five of these cases, the court is authorized in its discretion to sentence the convict to be sold as a slave, "either within or beyond the limits of the State." In the three remaining cases the court is authorised, generally to sentence the convict "to be sold as a slave" for the specified term of years. The case of larceny is one of these three. From this simple analysis it is perfectly plain that in the present case the court below has assumed a discretion not given it by law, but on the contrary, positively withheld by implication. Expressio [**3]  unius est exclusio alterius. 5 Rep., 119. 8 Barn. & Cress., 74, Rex vs. Bolton. Dwarris on Statutes, 707. It is scarcely necessary to suggest that this statute should be strictly construed for a double reason. It is both penal and in derogation of the common law. Apart from these reasons, "Acts which abridge the liberty of the subject ought to receive the strictest construction." 4 Bing., 183, Looker vs. Halcomb. Dwarris, 749. On the other hand, if it were necessary, it could easily be shown that even the most lax and liberal interpretation could not justify such a sentence as is now under review. The Act, as has been seen, provides for the punishment of numerous crimes of various grades. It is but reasonable to impute to the Legislature, a priori, an intention to do the common justice of adapting the degree of punishment to the grade of the offence. Accordingly, looking at the Act, we find crimes of a higher grade, such as robbery, horse-stealing, vessel and negro stealing and enticing or harboring slaves, punished with a longer term of slavery, and with the discretion in the court to add banishment to slavery. Upon the other hand, crimes of a lower grade, such as larceny, malicious [**4]  stabbing, &c., of beasts, stealing under the value of $ 5, or stealing under the value of $ 1, accompanied with breaking into out-houses, &c., are assigned a shorter term of slavery, and the power of banishment is withheld. That the crimes last mentioned are considered by the Legislature to be crimes of comparatively low degree, is obvious, not only from the Act itself, but from the Act of 1809, ch. 138, sec. 6, in pari materia. Now, if a sentence upon conviction of simple larceny, like that now in question, can be supported at all, it must be upon the theory that the unqualified power to sell as a slave generally includes the absolute power of disposition over the person, and, consequently, the right of removal from the State. It cannot be upon the theory that in such cases the court has discretion to restrict or not the ownership to the State limits, for that discretion, as we have seen, is peremptorily negatived by the pregnant silence of the Act itself. But as the Legislature has clearly manifested its appreciation of the distinction between slavery within and slavery without the State, the construction now contended against would involve the Legislature in the strange and stupid [**5]  injustice of having actually discriminated against petty offences in favor of crimes of a graver and more atrocious character. In other words, a negro convicted of wilfully burning down a court-house, or of enticing slaves to run away, has a chance of being kept comfortably at home by a merciful application of the discretion committed to the court, while a negro who pilfers a ham or a jewsharp, is to be hopelessly assigned to the clutches of the speculator, and has absolutely no chance of escape from a doom which everybody knows is equivalent to perpetual slavery, aggravated by banishment. "Ea est accipienda interpretatio quae vitio careat." Dwarris, 689. But as the strict construction is the only proper construction, the court has no right either to take from or to add to the plain expressed terms of the law. Even if the words were, on their face, ambiguous, and even if the cumulative reasons which, in this case, demand a rigid construction, were all out of the way, the court could not take "the liberty to introduce words into or exclude words from the clause, but would be bound to construe the words which the clause contains." 6 Barn & Cress., 174, Bloxam vs. Elsee. Dwarris, 718.  [**6]  This is a case, however, where, to use the words of Lord Coke, in 2 Inst., 533, "the words are plain, without any scruple, and absolute without any saving, and absoluta sententia expositore non indiget." If, therefore, the proper sentence under the law had been passed, the status of the convict under it would have been that of a "slave entitled to freedom after a term of years." Now, the "transporting out of this State" of just such slaves, the law of Maryland classes among crimes and misdemeanors, and the Act of 1817, ch. 112, entitled, "An Act to prevent the unlawful exportation of negroes," &c., was passed expressly "to prevent such heinous offences, and to punish them when committed," and the efficacy of this Act was increased, and its scope enlarged, by the supplementary Act of 1834, ch. 266. See, also, the Acts of 1810, ch. 15, sec. 3, and 1856, ch. 154, sub. ch. 5, sec. 133. The judgment in this case is not only a piece of arbitrary judicial usurpation, but inasmuch as it gratuitously deprives this negro of the protection of the laws just cited, the benefit of which is expressly secured to him by the 3rd Art. of the Declaration of Rights, it assumes the graver aspect of a cruel [**7]  or careless violation of a sacred and chartered right. But the last vestige of a doubt, if any could exist on such a question, is entirely removed by a reference to previous legislation. The Acts anterior to that of 1858, in pari materia, upon the subject of penal slavery, are 1831, ch. 323, secs. 1, 3, 4; 1842, ch. 281; 1847, ch. 309, secs. 3, 5, and 1849, ch. 461. A single reference to these statutes is enough to show that where the Legislature directs, in general and unqualified terms, the sale of a negro, "as a slave" for a limited period, a sale restricted to the State is always understood, and that, on the other hand, whenever the intention of the Legislature is to banish as well as to enslave, such intent is always clearly expressed in plain and positive terms. See 10 Rep., 138, c. Dwarris, 717. It is submitted, therefore, that in any aspect of the case, and upon every principle of interpretation, the judgment is erroneous: 1st. Upon the ipsa verba, the strict and immediate letter of the law. 2nd. Ex visceribus actus, upon a rational and comprehensive reading of the purview looking to the legislative intent, as apparent from it and from the justice of the case. 3rd. Upon the [**8]  still broader construction of the whole law of Maryland, in pari materia.

2nd. But this is not all. The judgment, as pronounced, and as recorded in the prisoner's presence, did not comply with the law with respect to the manner of the sale, and this imperfect and illegal sentence was actually sent to the sheriff for execution, to the manifest prejudice of the prisoner. It is claimed that the subsequent addition of the statutory words "at public sale" in the formal record, is nothing more than a mere technical amplification of the docket entry. The question is submitted to the court whether it is not, on the contrary, an ex gratia and unwarranted interpolation of matter of substance--an ex post facto clerical amendment of an incurable judicial blunder. 3 British Crown Cases, 301, Queen vs. Hartnett, et al. It is deemed particularly important that this point should be settled, in view of the growing disposition manifested in some courts of criminal jurisdiction, to tamper with their records, and to dress them up for the inspection of the appellate court, in a garb manufactured for the occasion.

3d. It remains only to consider the effect of a reversal, and the future disposition [**9]  of the case. The principle is, that "when the judgment is erroneous, that and all former proceedings in it, in case of a conviction, are defeated by the reversal." 1 Chitty's Cr. Law, 755. 1 Bl. Com., 393. 2 Just., 210. Hawk., Book 2, ch. 50, sec. 18. The first criminal case in this State, in which a procedendo was issued, was State vs. Buchanan, 5 H. & J., 317. That was an indictment for conspiracy, which came up to the Court of Appeals on a special demurrer, sustained by the County court. This court reversed the judgment, overruled the demurrer and maugre the opposition of counsel, ordered the court below to proceed with the trial. This case was followed by Cassel's case, 2 H. & G., 409; Dent's case, 3 G. & J., 8; Dowell's case, 3 G. & J., 310; Negro Evan's case, 7 G. & J., 290; Sutton's case, 4 Gill, 494, and Phelps' case, 9 Md. Rep. 21, which were all cases where the judgment had been arrested below on motion and writs of error sued out by the State. Price's case, 12 G. & J., 260, and Fearson's case, 2 Md. Rep., 310, like the case of Buchanan, came up on demurrer, sustained by the court below. Root's case, 10 G. & J., 374, Capritz's case, 1 Md. Rep., 569; Black's case, 2 Md. Rep.  [**10]  , 376; and Rabb's case, 7 Md. Rep., 483, each came up upon motion in arrest, overruled by the court below. In these cases the indictments were radically defective, (except in Rabb's case, where the court had no jurisdiction,) and the judgments being reversed, no writs of procedendo were issued. Franklin's case, 12 Md. Rep., 236, (since the Act of 1852, ch. 63,) was like the last named, except that it came up on the traverser's demurrer, overruled by the court below. The court thought the demurrer should have been sustained, and therefore reversed without procedendo. The only cases in which judgments in favor of the State have been reversed, and writs of procedendo awarded, are, Cochrane's case, 6 Md. Rep., 400, and Ford's case, 12 Md. Rep., 514, both of which came up on motion in arrest, overruled below. The case at bar is unlike either of these cases. In Cochrane's case the indictment was demurrable. In Ford's case, as in Sutton's case, there was no "valid and sufficient verdict;" hence in both cases there was a mistrial, and therefore a necessity for a venire de novo. Here, however, there is no mistrial. The indictment is correct, the verdict entirely regular, and all the proceedings [**11]  prior to final judgment unexceptionable, both in point of form and substance. The prisoner has been once regularly tried and convicted, by a good and lawful jury; there is no demurrer, no motion in arrest, in short, no reason why "a valid judgment could not have been entered," and there is, therefore, no ground for a venire de novo. 12 Md. Rep., 263, State vs. Reed. There is but one case reported in Maryland where a court has blundered in passing sentence upon a duly convicted criminal. In Negro Peter vs. The State, 4 H. & McH., 3, a slave was convicted of larceny, and Frederick county Court sentenced him to be whipped and pilloried, "and also that Lucy James, to whom negro Peter is a slave, pay unto Daniel Burkhart, the proprietor of the goods and chattels so stolen as aforesaid, the quantity of 48 lbs. of tobacco, and the costs," &c. Here, as in the case at bar, there was neither demurrer, nor motion in arrest, and upon writ of error, the General Court reversed the judgment, without procedendo. Upon these precedents, it is respectfully submitted that the judgment in this case should be reversed absolutely.

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

1st.  [**12]  The first section of the Act of 1858, ch. 324, provides "That in all cases hereafter, where free negroes shall be convicted of the crime of simple larceny, to the value of five dollars and upwards, or as accessory thereto before the fact, they shall be sentenced to be sold at public sale as slaves, for the period of not less than two nor more than five years." Under this provision the court acted, in passing the judgment sought to be reversed. The provision is--"shall be sold as a slave." There is nothing in the language looking to such a limit of the power as is contended for by the plaintiff in error, and the State contends that this power, vested in the court without any restriction, is amply sufficient to authorize the court to order the party to be sold either in or out of the State. It is but one punishment, and that is prescribed by the Act referred to, and is not, therefore, any new penalty invented by the court. The Legislature has not said, in this provision, whether the party shall be sold in or out of the State. Had it been their intention to have confined the court to the selling of the party within the limits of the State, they would have so expressed themselves; but [**13]  they have used the general expression "shall be sold as a slave;" therefore necessarily leaving it for the court to say, as a part of their judgment, whether the party shall be sold either in or out of the State. It was the intention of the Legislature to relieve the community of such a class of individuals, and were there any other construction adopted, the very evils intended to be remedied by this Act would be increased tenfold. Neither is such judgment opposed to the spirit of our legislation. It is contended that the sale of the party out of the State is a banishment, not authorised by this Act, and that the transporting out of the State of such a slave, the law of Maryland classes among crimes and misdemeanors. The Act of 1817, ch. 112, is relied upon as one passed expressly "to prevent such heinous offences," &c. This Act was passed more effectually to "prevent the kidnapping of free negroes and mulattoes," and to prevent the sale out of the State of slaves for a term of years, except under the restrictions therein contained, and does not, in any sense, apply to the case contemplated by the Act of 1858, of a free negro convicted of a crime, and for such crime ordered to be sold.  [**14]  And the same remarks apply to the supplementary Act of 1834, ch. 266, cited by the plaintiff in error. And both Acts present cases of contemplated fraud upon the rights of the negro, and are passed to prevent the commission of such frauds, whilst the Act of 1858 is passed to punish the party convicted of crime. So, also, the Act of 1810, ch. 15, sec. 3, only applies to servants or slaves, and are all intended to regulate the relation of master and slave in Maryland. So, also, of the Act of 1856, ch. 154, which only applies to and regulates the form of a bill of sale of a slave for years. The Acts of 1842, ch. 281, 1847, ch. 309, and 1849, ch. 461, are also relied upon in this connection. The first is an "Act to prevent the formation and assemblage of secret societies of negroes." The second is an Act applying to slaves running away from their masters, declaring it felony, and authorizing the sale of the party, and his transportation out of the State, showing the policy of the Legislature to relieve the community of that class of persons. By the Act of 1831, ch. 323, sec. 12, the courts are vested with the power of transportation into another State, and the general policy of the State [**15]  has been, to sell them out of the State. See, also, the Act of 1835, ch. 200, sec. 3. And the State contends that in the passing of the sentence in this case, the court simply exercised its legitimate authority under the Act of Assembly. If there could be any doubt upon this point, under the Act of 1858, the judgment in this case cannot be reversed, because, if the court had not the power, under that Act, to sell the party out of the State, then the presumption is that the court ordered the party to be sold out of the State under the Act of 1835, ch. 200, the provisions of which clearly and expressly give the court that power. The presumption is, in the absence of any thing upon the record to the contrary, that the court below acted within the scope of its authority. Nothing appears upon the record to show that this party convicted did not come within the provisions of the Act of 1835, ch. 200. If there is no other Act authorizing the action of the court in this case, the presumption must be, that he came under the provisions of that Act, and that the court exercised its power under the same.

2nd. The judgment pronounced by the court complies with the law in respect to the manner [**16]  of the sale. The judgment is, "to be sold for the period of five years," &c. Sold how? In what manner? Why, according to the provisions of the law, "at public sale." The judgment extended in the record is nothing more than a technical amplification of the docket entry, according to its legal meaning and effect. 7 Md. Rep., 448, Weighorst vs. The State.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*421]  BARTOL, J., delivered the opinion of this court.
This case comes before us from the Criminal Court of Baltimore on a writ of error issued by the Circuit Court for Baltimore City, and directed to the Criminal Court. The plaintiff in error was indicted for the larceny of a silver watch, valued at six dollars, and, upon a verdict of "guilty," judgment was pronounced by the court, which, it is contended, was erroneous.
As the alleged error is in the judgment rendered, it is proper for us first to ascertain what judgment was, in point of fact, rendered.
In the record transmitted to this court, it is thus stated:
"Therefore, it is considered by the Court here, that the said free negro, Thomas Watkins, be sold out of the State of Maryland,  [**17]   at public sale, as a slave for the period of five years, under the provisions of the Act of Assembly in such case made and provided."
By an amendment of the record, it appears that the judgment rendered by the court and entered upon the docket, was as follows: "Judgment--to be sold for the period of five years out of the limits of the State, from March 31st, 1859. Transcript sent."
It is said by the attorney for the State "that the judgment extended in the Record, is nothing more than a technical amplification of the docket entry according to its legal meaning and effect." If this were so, no objection on that ground could be made to the proceeding; it would find its sanction, both in the necessity of the case, and in the approved practice of courts of justice. In Weighorst vs. The State, 7 Md. 442, this court said, "It has always been the habit of clerks to take minutes and docket entries of the court's proceedings, and 

 [*422]  subsequently to enter them at length, in technical language, according to the established forms. This is necessary to the dispatch of business, and relieves these officers from the inconvenient, if not impracticable, labor [**18]  of making correct full records of proceedings as they transpire." That was said in a case where the verdict of the jury, as set out in form upon the record, had the same legal effect and intendment, as the brief entry thereof made by the clerk on the docket.
But, in all cases, great care must be observed to state the proceedings correctly, and not, under pretence of amplifying the docket entries, to alter the substance and legal effect of the verdict rendered by the jury or the judgment pronounced by the court. To allow this, would be to deprive the citizen of the safeguards thrown around his life or liberty by the Constitution and the law, and to subject him to the consequences of the ignorance or mistake of the clerk. Without intending to impute unworthy motives to any one, we have no hesitation in saying that the judgment which was actually rendered by the court in this case, pronounced in the presence of the prisoner, entered upon the docket and transmitted to the sheriff under the solemnity of the court's seal, to be executed by him, is not the same judgment set out in the record and originally transmitted to this court for review. The discrepancy between the two is obvious and [**19]  material. By the former the sheriff is not directed to sell at public sale, but "to sell for the period of five years," &c., thus leaving it to the discretion of the sheriff to sell the convict, if he chooses, at private sale, while, by the Act of Assembly, it is the duty of the court, in its judgment, to direct a public sale. The judge has no power to pronounce any judgment under the Act, except such as the Act declares. He cannot lawfully place in the hands of the sheriff such a discretion, and his omission to direct the sale to be public, would render the judgment, as pronounced, illegal and void, even if it were not so, for other reasons, which will hereafter appear. The strictness which it is the duty of the courts to observe in the administration of the criminal law, is founded on sound reason and the sanction of the experience and wisdom of ages. Nothing is more important than that the 

 [*423]  rights of the citizen should be well defined, and the power of courts of justice exactly declared by the law, whose requirements ought to be strictly and rigidly observed; without this, the law itself will cease to be observed or respected. In the case before us, the [**20]  plaintiff in error belongs to an abject class of our population, yet they are entitled to the protection of the law. It is our pride and boast, that while no man is so high as to be above the responsibilities of the law, there is no one so humble as to be beneath its protection. In this case, whether we consider the judgment as pronounced by the court, or as it is set out at length upon the record, it is not in conformity with the law. The plaintiff in error was indicted and convicted under the first section of the Act of 1858, ch. 324, which provides, "That in all cases hereafter, when free negroes shall be convicted of the crime of simple larceny to the value of five dollars and upwards, or as accessory thereto before the fact, they shall be sentenced to be sold at public sale, as slaves, for the period of not less than two, nor more than five years."
The judgment of the court is, that the free negro "be sold as a slave, for five years, out of the limits of the State." Now, this is not the sentence directed by the law. It is obvious from its provisions, that for the offence of simple larceny, the court cannot sentence a party to be sold out of the limits of the State. The [**21]  Act enumerates eight distinct classes of crimes, and prescribes the several punishments for them respectively. In five of them the court is authorized, in its discretion, to sentence the convict to be sold as a slave, "either within or beyond the limits of the State." In three of them, no such discretion is conferred on the court. Simple larceny is one of these, and, as we have seen by the words of the first section, the punishment prescribed for that offence is, that the convict "be sold as a slave" for the specified term of years.
Under the sentence prescribed by the law, the convict may be purchased and held by a citizen of Maryland, or he might be purchased by a non-resident; under that pronounced by the court, the former could not be done.
It is the duty of the court to enforce the law as it is declared 

 [*424]  by the Legislature. This has not been done in this case. The judgment was not authorized by the law, and must be reversed.
The effect of the reversal for error in the judgment itself, is properly stated by the counsel for the plaintiff in error in his argument. It defeats all former proceedings in the cause. This will abundantly appear by reference to [**22]  the following authorities cited by him on this point: 1 Chitty's Crim. Law, 755; 4 Bl. Com., 393; Hawkins, Book 2nd, ch. 50, sec. 19.
Judgment reversed. 

150 of 196 DOCUMENTS 

THE BALTIMORE AND OHIO RAIL ROAD COMPANY vs. HORACE RESLEY and JAMES RESLEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 424; 1859 Md. LEXIS 88 

July 29, 1859, Decided 

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

Assumpsit brought on the 13th of March 1853, by the appellees against the appellant, to recover for excavating and constructing the 21st section of the Baltimore and Ohio Rail Road, West of Cumberland. The present trial was under the procedendo issued by this court, upon the reversal of the judgment upon the former appeal, reported in 7 Md. Rep., 297.

The parties entered into a written contract, dated the 6th of July 1850, by which the plaintiffs agreed to grade the section according to the manner and conditions, and for the prices therein specified. During the progress of the work, monthly estimates were to be made by the resident engineer, of the quantity, character and value of the work done during the month, and four-fifths of this value were to be paid to the contractors; and, when the work was completed and accepted, a final estimate was to be made, and the balance appearing due them was to be then paid to the contractors, on their executing a release to the company, under seal. It was agreed that these monthly and final estimates were to be conclusive between the parties, unless revised and altered by the chief engineer,  [**2]  in which event, the estimates of the latter were to be substituted in their place.

The plaintiffs continued to execute the work, under this contract, till the 20th of March 1851, when they represented to the company that the work was costing them too much, and that they could not go on with it at their contract prices. A modification of the contract was then made, to the effect that they were to go on with the work, and were to be paid according to their expenses until the work was completed, when it was to be finally measured up, and the quantities returned. If anything was due them over what they had already received for work done before this arrangement, it was to be paid to them; they were not to lose their twenty per cent. in the hands of the company on the work done prior to this time, and they were to be protected from further loss on the work. Save in these particulars, the contract was to stand as it was; their expenses were to be the monthly estimates.

1st Exception. It was agreed that, in the present trial, all the testimony offered at the former trial, as found in the procedendo record from the Court of Appeals, should be read in evidence to the jury, and that [**3]  the record in the case in the Court of Appeals in the former appeal, shall be a part of this record, and used as such. The testimony mentioned in this agreement was then read to the jury, and some additional testimony was offered on both sides, the effect of which is stated in the opinion of this court. The plaintiffs then offered three papers, the first of which only appears in the record, and is substantially as follows:

1st. If the jury shall believe, from the evidence, that the plaintiffs and defendant entered into the written contract of the 6th of July 1850, and that the work was executed by the plaintiffs under this contract, up to the 20th of March 1851, and that during the progress of the work up to that time, the monthly estimates offered in evidence by the defendant, of the quantity and character of the work done, were made, and that at that time a new arrangement or contract was made, by which, from that time forward, the defendant was to pay the plaintiffs their monthly expenses till the completion of the work, in lieu of the monthly estimates provided for by the original contract; and on the completion of the work that a final estimate or measurement should then [**4]  be made, of the work done by the plaintiffs prior to the 20th of March 1851, and that under this new arrangement or contract, the plaintiffs proceeded to execute the work up to the 19th of August 1851, and that at that time it was agreed between the plaintiffs and defendant, that the former should retire from the work in the state in which it then was, and that the final estimate and measurement of work done prior to the 20th of March 1851, as provided for by the new arrangement or contract of that date, should then be made, and that such final estimate or measurement was then made by William H. Small, the resident engineer, having charge of the work at that time; and if the jury shall further believe, that said final estimate of the said Small was fraudulently made, that then said final estimate is not conclusive on the plaintiffs, and that gross negligence, in making said final estimate, is evidence from which the jury may find fraud in taking the same.

The defendant then offered the following prayers:

1st. If the jury shall believe from the evidence, that the plaintiffs and defendant made and entered into the contract offered in evidence, of July 6th, 1850, and that the [**5]  plaintiffs performed the work on said section of the road prior to the 20th of March 1851, under the provisions of this contract, and that monthly estimates of the quantity, character and value of the work done during the month, or since the last monthly estimate, were made in accordance with the provisions of the contract by the local or resident engineer having charge of the work for the time being, bona fide, and that the plaintiffs received the four-fifths of such estimates, as provided for in the contract, then each and every one of the monthly estimates so made and paid, is an adjustment of the work done up to each estimate, and each monthly estimate so made, is conclusive between the parties to the contract, unless the chief engineer deemed it proper, at any time, to revise and alter the same, or either of them, in which event the estimate of the chief engineer would be final and conclusive between the parties, in the absence of all fraud on the part of the defendant, or its engineer or engineers.

2nd. If the jury shall believe from the evidence, that the plaintiffs and defendant made and entered into the contract of July 6th 1850, as offered in evidence by the defendant;  [**6]  that the plaintiffs performed the work done by them on said section, under the provisions of this contract, and that the contract was executed by them up to the 20th of March 1851, and that at that time it was agreed between the parties, that instead of the monthly estimates provided for by the contract, they should be paid their expenses for the work done during the month; and if the jury shall further believe, that the actual expenses were returned and paid by the defendant under such agreement, instead of the monthly estimates, as provided for by the contract, and received by the plaintiffs, then each payment of the monthly estimates or expenses, so made and received by the plaintiffs, is an adjustment of the work done up to each estimate or return of expenses and payments so received, and is final and conclusive as to the work done up to such estimates or returns of expenses respectively, in the absence of all fraud on the part of the defendant or its engineers, and that the plaintiffs cannot now go behind these adjustments or payments to recover for work and labor done.

3rd. If the jury shall believe from the evidence, that the plaintiffs and defendant made and entered into [**7]  the contract of the 6th of July 1850, as offered in evidence by the defendant; that the plaintiffs performed the work on said section of the road up to the 20th of March 1851, under the provisions of this contract, and that monthly estimates of the quantity, character and value of the work done, during the month, or since the last monthly estimate, were made in accordance with the provisions of the contract, bona fide, by the local or resident engineer having charge of the work for the time being, and that the plaintiffs received the four-fifths of these monthly estimates, as provided for in the contract; and if the jury shall further believe, that at the time, or within a few days thereafter, for taking the monthly estimate for work done after the 20th of March 1851, it was mutually agreed between the plaintiffs and the defendant, that the plaintiffs should go on with the work, and should be paid their expenses instead of the monthly estimates, as provided for by the contract of the 6th of July 1850, until the work was completed, that then it should be finally measured up, and if there should appear to be any thing due the plaintiffs over what they had already received for work done [**8]  before that time, it should be paid to them, that the plaintiffs were not to lose that part of the 20 per cent. for work then done, which was remaining in the hands of the defendant; that the plaintiffs were to be protected from all further loss on the section; that the plaintiffs' expenses were to be the monthly estimates, and that the contract of the 6th of July 1850, save in these particulars, was to stand as it was; and if the jury shall further believe from the evidence in the cause, that the expenses of the plaintiffs, after the 20th of March 1851, were so returned as the monthly estimates, and exceeded what the estimates would have been under the contract, at the contract prices, and paid by the defendant and received by the plaintiffs as such, then the plaintiffs are only entitled to recover in this action that portion of the 20 per cent. remaining in the hands of the defendant, if any, for work done prior to the 20th of March 1851.

The plaintiffs asked the following modification of this third prayer: The plaintiffs are entitled to recover, for the work done by them prior to the 20th of March 1851, whatever amount the jury shall believe from the evidence, the plaintiffs [**9]  are entitled to under the written contract, if they shall believe that Small, as resident engineer, made the final estimate offered in evidence by defendant, as his final estimate under the written contract, and the new arrangement, (if they believe them to have been made,) and that this final estimate was not made bona fide in pursuance of the contract and arrangement.

4th. If the jury shall believe from the evidence, as stated in the defendant's third prayer, which is made part of this, the plaintiffs are not entitled to recover for work done after the 20th of March 1851, anything save their actual expenses; that the true construction of the contract and modification, as set out in the third prayer, is, that for the work done prior to the modification of the written contract, the plaintiffs are to be paid according to the stipulations of the written contract; the work done after the new arrangement, the plaintiffs are only to be allowed their actual expenses.

5th. That the jury will exclude from their consideration all testimony offered by the plaintiffs relating or referring to the costs of excavation and embankment on said section, of spoiling or wasting the earth from [**10]  the section on the Maryland side of the river, of the embankment and excavation on the Virginia side of the river, and of the excavation and embankment on the section, after the new arrangement was entered into, provided they believe from the evidence that the plaintiffs and defendant entered into the contract of the 6th of July 1850, and also the facts set out in the defendant's third prayer.

6th. If the jury shall believe from the evidence, that the plaintiffs and defendant made and entered into the written contract of the 6th of July 1850, as offered in evidence by the defendant, and that the plaintiffs performed the work on said section for the defendant, up to the 20th of March 1851, under the provisions of this contract, and that, after the modification, as stated in defendant's third prayer, and made part of this, the plaintiffs were to be paid their actual expenses instead of the monthly estimates, then the jury will exclude from their consideration all the testimony offered by the plaintiffs in relation to the quantity, character and value of the work done by them before the modification of the contract.

7th. If the jury shall believe from the evidence, the facts [**11]  stated in the defendant's third prayer, which is made part of this, the plaintiffs are not at liberty to establish by any other evidence than that prescribed by the contract, the quantity, character and value of the work done before the modification of the contract; unless they find that the plaintiffs, after proper exertions on their part, had made an ineffectual attempt to procure the same, according to the terms of the contract; that it was their duty to have applied to the engineer to make the measurements of the work done before the modification of the contract, before any other evidence would have been admissible as a substitute for such proof.

8th. If the jury shall believe, from the evidence, that the plaintiffs and defendant made and entered into the contract of the 6th of July 1850, and that the work was performed by the plaintiffs on said section up to the 20th March 1851, under this contract, and that after that period the expenses of the plaintiffs were to be substituted for the monthly estimates; that Wm. H. Small was the resident engineer, having charge of the work at the time the final estimate was taken as offered in evidence by defendant; that this final estimate [**12]  is final and conclusive between the parties to this action.

9th. That the final estimate offered in evidence by the defendant is final and conclusive between the parties to this action.

10th. If the jury shall believe from the evidence that the erection and keeping up of the temporary bridge was only a means or mode by which the work, in part, on the section was to be executed, although the jury may believe it was the intention of the parties, at the time the contract of the 6th of July 1850, was entered into by the parties, that the said bridge was to be kept up or in repair by the defendant; yet, if the jury shall believe that the defendant, after the bridge was washed away, ordered it, and the plan of executing the work was thereafter altered by the defendant according to the provisions of the written contract, so as to require the work to be executed without the bridge as a means of executing it, the defendant is not liable for any damages for not keeping up the bridge after it was washed away, but is only liable for any additional expense caused by such change, if any, as the engineer of the defendant, in his judgment, ascertained and determined.

11th. If the jury [**13]  shall believe, from the evidence, that the agreement of the 6th of July 1850, was entered into by the parties and the modification thereof made, by which monthly estimates were to be the expenses of the plaintiffs on the work up to the 19th of August 1851; that, at that time, the plaintiffs had not finished the work, but that it was then agreed the work should pass over to the defendant, and that the plaintiffs should then retire from it in the state it then was, and that the local or resident engineer having charge of the work for the time being, made a final estimate of the quantity, character and value of the work agreeably to the terms of the agreement and modification thereof, and returned the same to the chief engineer of the defendant, and that such engineer revised the estimates so returned to him, and made the final estimate offered in evidence by the defendant, then the estimate of the chief engineer shall be substituted in the place of the said estimate, and is final and conclusive between the parties.

12th. That by want of bona fides, found in the prayers granted by the court, is meant "a fraudulent intention," "an intention to act corruptly," not an oversight or wrong [**14]  judgment, if honorably made, nor a mistake, and that the jury, in order to find that there was a want of bona fides, must believe there was a fraudulent intention on the part of the engineer or engineers.

The court (PERRY, J.) refused to grant the plaintiff's second and third prayers, but granted their first, because conceded. The court also granted the defendant's 1st, 2nd, 3rd, 4th, 10th and 12th, and refused to grant its 6th, 7th, 8th, 9th and 11th. The court also offered to grant, and did grant, the defendant's 8th, 9th and 11th prayers with this modification at the end of each, "if they shall believe the same to be bona fide made." To the refusal to grant its 6th and 7th, and the refusal to grant the 8th, 9th and 11th prayers, without the modifications, the defendant excepted.

2nd Exception. Whilst the counsel for plaintiffs was making his closing argument before the jury, and was contending that by the law, as laid down by the Court of Appeals, when this case was before them, in 7 Md. Rep., and arguing that the final estimate, as offered in evidence by the defendant, was not such a final estimate as was provided for by the written contract and the modification thereof,  [**15]  but that the final estimate contemplated by the contract, as modified, was to cover alone the work done before the 20th of March 1851, he was stopped by the counsel for the defendant, who insisted that he should not be permitted by the court to argue before the jury that this final estimate was not made pursuant to the terms of the written contract and its modification, which objection to the argument the court overruled; whereupon the defendant, by its counsel, offered the following prayer:

13th. If the jury shall believe, from the evidence in the cause, as stated in the defendant's fifth prayer, found in 7 Md. Rep., 302, that the final estimate now (being the same referred to in said prayer) offered in evidence, is a sufficient compliance with the requisitions of the contract and a substantial compliance with them.

The court refused to grant this prayer, and to this refusal the defendant excepted.

The verdict and judgment were in favor of the plaintiffs for $ 5,500 and costs, and the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

In a trial under a procedendo, no error can be imputed to the rulings of the court below, based on the terms of a contract and a modification thereof as interpreted by the appellate court on the first appeal.

Where the record does not show whether a certain prayer was granted or refused, and no exception in reference to the court's ruling upon it was taken, it is not before the appellate court for review, for if it was granted, the appellant cannot complain, and if rejected, no exception was reserved to such ruling of the court.

The appellate court having, on the first appeal, reversed the judgment because of the rejection of certain prayers, in which they said they "saw no defect," and these prayers having submitted to the jury the question of bona fides in making certain estimates, it must be intended that the court thought there was evidence on that question proper for the jury.

Where the plaintiff's prayer, leaving to the jury the inquiry whether certain estimates were made bona fide or not, is granted with the assent of the defendant, the latter cannot afterwards object to the same inquiry being made part of his own prayers.

What is admitted to be the law of the case, cannot be gainsayed before the jury, and a defendant, after conceding a prayer involving a certain question of fact, cannot deny that such an inquiry is before the jury, any more than he can argue against the law of instructions given without such assent.

Prayers should be so framed as to instruct, not to embarrass, juries, and where the court thinks they may have the latter effect, it is not its duty to place a construction on the language employed by counsel, but may reject the prayers as offered.

A prayer that if the jury find the making of a certain contract, &c., "and that, after the modification, as stated in the defendant's third prayer, and made part of this," &c., does not submit to the finding of the jury the facts stated in such third prayer, but refers merely to the modification of the contract.

A prayer that if the jury believe certain facts, then "the plaintiffs are not at liberty to establish, by any other evidence than that prescribed by the contract, the quantity," &c., of work done, is erroneous in leaving the interpretation of the contract. which is a question of law, to the jury.

The refusal of a prayer is no ground of reversal, if the same has been substantially granted before in other prayers, because such refusal does the party no injury, while, at the same time, it prevents embarrassment by a complication of unnecessary propositions of law and fact.  

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

1st. That the defendant's fifth prayer ought to have been granted. It left to the jury to [**16]  find the facts to be true, as stated in the third prayer, viz: that the parties entered into the contract of the 6th of July 1850; that the plaintiffs performed the work up to the 20th of March 1851, under the provisions of this contract; that monthly estimates of quantities, character and value of the work done during the month, were made in accordance with the provisions of the contract, bona fide, by the resident engineer, and that the plaintiffs received four-fifths of said estimates; that, before taking the monthly estimate for work done after the 20th of March 1851, it was agreed that the plaintiffs should go on with the work, and should be paid their expenses instead of the monthly estimates, and that it should, when the work was completed, be finally measured, and whatever should appear to be due for work done before that time, should be paid them; that the plaintiff's expenses were to be the monthly estimates, and that the expenses of the plaintiffs, after the 20th of March 1851, were so returned, and exceeded what the estimates would have been under the contract of the 6th of July 1850; that the expenses were paid by the defendant, and received by the plaintiffs as such.  [**17]  If the jury found these facts to be true, then the testimony set out in this fifth prayer for work done after the new arrangement, ought to have been excluded from the consideration of the jury, because the expenses were the cost by the new agreement.

2nd. The sixth prayer ought also to have been granted, because it required the jury to find as true the same facts as stated in the third prayer, and, if they so found the facts, then the contract of the 6th of July 1850, prescribed the mode in which the quantity, character and value of the work done was to be ascertained, and that excluded every other mode, unless the mode prescribed in the contract could not be availed of. 9 Pet. 326, United States vs. Robeson. 11 G. & J., 58, Wilson vs. York & Md. Line Rail Road Co. Redfield on Railways, 210, note 17, 221, 223, 224, and note 8. 3 Eng. Railway Cases, 17, Parkes vs. Great Western Railway. For the same reasons, and on the same authorities, the seventh prayer ought to have been granted.

3rd. The court ought to have granted the eighth, ninth and eleventh prayers, without the modification of "bona fide," because there was no testimony before the jury which could authorize the court [**18]  in submitting a question of that kind to the jury. 10 Md. Rep., 67, Wilson vs. Smith. 9 Gill, 331, Clarke vs. Marriott. 7 H. & J., 36, Davis vs. Davis. 7 G. & J., 20, Cole vs. Hebb. 3 H. & J., 109, Tyson vs. Rickard. Here the final estimate was in evidence, and the court was asked to say that it was final and conclusive between the parties. The prima facie was, that it was made bona fide, and was, therefore, legally sufficient to bind the parties. Now, what evidence did the plaintiffs offer to impeach its bona fides, from which, according to authorities just cited, a rational or well-constructed mind could infer it was not made bona fide? It was the legal sufficiency of the final estimate the court was asked to pass upon, and there was no evidence offered, impeaching its bona fides, that authorized the court to submit the question to the jury.

4th. The parties, by the contract of the 6th of July 1850, fix the mode in which the quantity, character and value of the work should be ascertained, and, by that contract, appoint the arbitrator or arbitrators. The final estimate is the award of the officer named in the contract. The finality of this award is governed by the same rules [**19]  as apply to awards generally. 3 Rawle, 84, McCalmont vs. Whitaker. 1 Miles, 418, Horton vs. Stanley. 8 Verm., 79, Learned vs. Bellows. 7 Gill, 488, Emery vs. Owings.

5th. The parties, by the contract of the 6th of July 1850, provide for the award or final estimate, who shall make it, and how it shall be made. This court has already decided, in 7 Md. Rep., 313, that the final estimate, offered in evidence, is a substantial compliance with the requisitions of the contract, and not an evasion. The appellant, therefore, insists that in a court of law, this final estimate is final and conclusive, and that the court had no power to set it aside or leave it to the jury to regard or disregard. Under the statute of 9th and 10th Will., III, ch. 15, in England, and under the similar provisions of our Act of 1778, ch. 21, secs. 8, 9, the court has power to set aside awards made under a reference from court, but neither the English nor the Maryland Statute authorizes the court to leave the question of its finality to the jury. Where, however, the award is not by reference from court under the Statute, as in this case, but by the contract of the parties, there is no power to set it aside, even [**20]  for fraud or misbehavior in the arbitrators, save in a court of equity. Watson on Awards, ch. 9, pages 262, 263. 2 Story's Eq., sec. 1452. Kidd on Awards, 6, 327, 328. Billings on Awards, 9, 175, 176, in 5 Law. Lib. Russell on Arbitrators, 49, 614, in 63 Law Lib. Redfield on Railways, 207, 214, 216. 1 Saund., 387, (c.) and notes I. and J. 8 East., 344, Braddick vs. Thompson. 2 Wils., 148, Wills vs. Maccarmick. 2 Johns. Ch. Rep., 366, Underhill vs. Van Cortlandt. 2 Johns., 62, Newland vs. Douglass. 3 Johns., 368, Barlow vs. Todd. 18 Ala., 174, Strong vs. Beroujon. 11 Missouri, 624, Finley vs. Finley. 8 Md. Rep., 208, Roloson vs. Carson. Even if a bill were filed in this case to set aside the award, no court of equity, on the testimony, would set it aside. As to what will authorize a court of equity to set aside an award, see Underhill vs. Van Cortlandt, 2 Johns. Ch. Rep., 339, where the authorities are reviewed.

6th. The court should have granted the 13th prayer, because the Court of Appeals had so ruled the law of this case in 7 Md. Rep., 297. This required the jury to find, 1st. That the contract of the 6th of July 1850, was entered into by the parties and remained unaltered,  [**21]  except as stated in the fourth prayer of the former trial. 7 Md. Rep., 301. 2nd. That the resident engineer made a final estimate agreeably to the terms of said agreement and the modifications thereof, bona fide. If the jury found these facts, why was not the final estimate conclusive. This prayer is a repetition of the fifth prayer of the former trial, which this court held good, and that the final estimate was "a substantial compliance with the requisitions of the contract."

Thos. Devecmon and Geo. A. Pearre, for the appellees, argued:

1st. That the defendant's sixth prayer was rightly rejected. It excludes from the consideration of the jury all question of bona fides in the measurements and estimates of the engineer, and, indeed, leaves out of view altogether any such measurements or estimates. It goes solely upon the making of the contract and the new arrangement, without incorporating into it any reference to the fact that either party performed their parts of the same, or to the mode in which the defendant performed its part. By the modification of the contract, as stated in the third prayer, it was agreed that when the work was completed "it was to be finally measured [**22]  up." Now this prayer repudiates the right of the plaintiffs to have this feature of the modified contract fulfilled, and excludes from the jury all evidence which would show the actual quantity of work done by the plaintiffs prior to the 20th of March 1851, and all evidence which would tend to show that the engineer had not acted bona fide in making up his estimate or estimates. But even if it should be held that the words in this sixth prayer, "and that after the modification as stated in defendant's third prayer and made part of this," have the effect to embody the entire third prayer, and not alone the modification of the original contract, as stated in the third prayer, (which last, we say, is its proper construction,) then the prayer ought not to have been granted, for the reason that "the testimony offered by the plaintiffs, in relation to the quantity, character and value of the work done before the modification of the contract," bore directly upon the question of bona fides in the engineer, in making his estimates, whether monthly or final. In granting the third prayer, which was based upon the hypothesis that the monthly estimates, up to the 20th of March 1851, were made bona [**23]  fide, gave the defendant all it could ask, as what was asked by this sixth prayer would have shut out from the jury the question of bona fides in the estimates.

2nd. That the seventh prayer was properly rejected. We suppose this prayer the defendant will endeavor to sustain by showing that the estimate made out by its resident engineer, and revised and corrected by its chief engineer, was not in conformity with the contract as modified by the parol agreement of the 20th of March 1851, inasmuch as it did not undertake to ascertain the quantity of work done before the modification, and separate that from what was afterwards done. Admitting this estimate to have been erroneously made in the mode in which it was made, yet it was made by the proper officer of the defendant, and presented to the plaintiffs as the estimate of their work, and payment offered to them according to it;--offered in evidence in this case and relied upon by it as such estimate. When an estimate, under such a contract as this, is made by the proper officer, as the estimate, the plaintiffs are not bound to ask him to make another on a different plan. As well might it be said that a contractor was bound to point [**24]  out all errors committed by an engineer in an estimate, whether as to quantity or classification, and ask him to revise the estimate before he could sue. Whatever paper the proper officer makes out as the estimate, is to be treated as the estimate of the contract, so far, at least, as to relieve the contractor from asking another. In Wilson vs. York & Md. Line R. R. Co., 11 G. & J., 58, no estimate had been made by the proper officer.

3rd. The eighth prayer was properly rejected, 1st, because it assumes the existence of a final estimate, without leaving to the jury the finding of that fact; 2nd, and because it does not leave to the jury to find, whether the final estimate was made by the proper officer, or by the resident engineer; 3rd. The prayer was granted by the court with the addition: "if they shall believe the same to be bona fide made." 4th. The estimate was not final and conclusive, because not made pursuant to the contract as modified, and did not ascertain the work done prior to the 20th of March 1851.

4th. The ninth prayer was properly rejected. 1st. Because it does not embody any of the facts to be found by the jury, to make the estimate final and conclusive,  [**25]  viz., 1st, that a final estimate was made; 2nd, that it was made by the proper officer; 3rd, it was granted with the addition, "bona fide made."

5th. The eleventh prayer was properly rejected, because, 1st. It submits a question of law to the jury, viz: "Whether the resident engineer, having charge of the work for the time being, made a final estimate of the quantity, character and value of said work, agreeably to the terms of said agreement and modification thereof?" The court ought to have determined whether the estimate was in conformity with the contract. The making both, of the contract and the estimates, were facts for the jury, but whether the latter was made pursuant to the former was a question of law for the court, and not of fact for the jury. This court, on the former appeal, had construed the contract in 7 Md. Rep., 312, and the court below, with the estimate before it, and the contract too, was the tribunal to determine the conformity of the estimate to the contract. 2nd. The court granted the prayer with the modification, "if they shall believe the same to be bona fide made."

6th. The thirteenth prayer was properly rejected, 1st. Because the prayer refers,  [**26]  for what the jury was to believe, in this cause, on this prayer, to the fifth prayer found in 7 Md. Rep., 302, when such fifth prayer was not in evidence before the jury, and thus the facts which the jury were to find, as the foundation of the legal result sought by the prayer, were not made known to the jury. How were the jury to know, from the evidence in the cause, what they were to believe, "as stated in defendant's fifth prayer, found in 7 Md. Rep., 302," unless such fifth prayer was before them? The agreement, as to evidence, only goes to the extent of giving in evidence to the jury that tried this case, "the testimony offered at the former trial thereof, as found in the procedendo record." 2nd. Because the prayer states as a fact, without leaving to the jury to find it, that the final estimate now offered in evidence is the same referred to in said prayer. 3rd. But in fact the final estimate offered in evidence was not made in compliance with the written contract and the modification thereof. See 7 Md. Rep., 312, as to their true interpretation by this court. Now this estimate did, in no manner, ascertain the work done prior to the new arrangement. From it no man can discover [**27]  what the amount of such work was. It was made by the engineer as and for the final estimate, but not properly and according to the contract and the modification thereof. 4th. In the eleventh prayer, the question, whether the estimate was made pursuant to the contract is left to the jury, and in this the court is asked to say whether the estimate complies with the contract. Now it cannot be both a question of law and of fact. We say it is a question of law, but neither party having put a prayer to the court when the argument before the jury was progressing, and when the counsel for the plaintiffs was arrested, we had the right to reason as we did. The question is however alone on the prayer. And another reason why it should not have been granted is, because it refers to the "contract," which, in all the other prayers, is referred to as the "written contract," and leaves out the modification thereof. It would have misled the jury.

7th. The question of bona fides, in making the estimate, was properly left to the jury. There was abundant evidence in the case to show either bad faith or gross negligence on the part of the engineer in making it, and gross negligence is evidence from [**28]  which the jury may infer fraud or want of bona fides. 11 G. & J., 79. The same evidence was before the jury in this case as in the former trial, and the court then held, in 7 Md. Rep., 313, that the fourth and fifth prayers, which then left the question of bona fides to the jury, were in all respects proper and free from error; and moreover the prayers of the defendant in this case, which were granted by the court, concede the point, and submit the question of bona fides to the jury. Nor can this estimate be regarded as an award; (11 G. & J., 75, 77;) and even if it could be regarded as an award, it is totally void. 33 Maine, 216, Boynton vs. Frye.  

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

OPINIONBY:
TUCK 

OPINION:

 [*440]  TUCK, J., delivered the opinion of this court.
No error can be imputed to the ruling of the court below, based on the terms of the original contract, and the modification thereof, as interpreted by this court on the former appeal. And, as the additional evidence does not materially alter the case, those prayers which were then held to be correct must govern the same questions arising on the present record.
At the trial the plaintiff [**29]  offered three prayers, the first of which was granted because conceded, as we are informed by the exception, and the other two refused. The defendants offered thirteen, of which the first, second, third, fourth, tenth and twelfth were granted; the sixth, seventh and thirteenth were refused, and the eighth, ninth and eleventh granted, with the addition of words, designed to leave to the jury the question of good faith on the part of the engineer of the company, in making the estimates referred to in the prayers. It does not appear whether the fifth was granted or refused. This, however, can make no difference, because, if granted, the defendant cannot complain, and, if refused, there was no exception reserved to that ruling of the court, therefore, it is not before us for review.
The effort on the part of the company was to bind the plaintiffs by the estimates made by their engineer, on the ground that, according to the contract and the modification, they were to be the measure of compensation for doing the work. The plaintiffs, on the contrary, insisted that, although where a contract contains such a stipulation, the rules announced by the defendant prevails, yet where an estimate [**30]  has been made by the proper officer of the company, it is open to the contractor to show that it is not binding by reason 

 [*441]  of the want of good faith in making it. This qualification of the principle is not denied by the company, where there is mala fides, though it contends that there is no evidence in this cause from which the jury could draw such a conclusion.
This court, on the former appeal, reversed the judgment below on the fourth and fifth prayers, using this language: "We see no defect in the fourth prayer. It requires the jury to find all the necessary facts to warrant the legal conclusion which it deduces from them." *** "We discover, also, no error in the fifth prayer." It will be remarked that these prayers submitted the question of bona fides in making the estimates to the jury, and it must be intended that the court thought there was evidence on that question proper for the jury, because, without such a construction, they could not have been sustained, in view of the ground taken by the plaintiffs against the binding and conclusive effect of the estimates. It seems to have been the understanding of the defendant that that was the gist of the inquiry [**31]  upon the estimates, because all its prayers involving them, as a basis of adjustment, proceeded upon the hypothesis that the jury should find there was no fraud, before they could avail the company. The court said there was no defect in the fourth. To have been perfect, it must have submitted to the jury all questions of fact, of which there was legally sufficient evidence, on which the other side had a right to rely in answer to the defence set up against their claim, one of which answers was fraud in making the estimates. The argument of the appellants on the former appeal implied that the question of good faith was an ingredient in the cause, and their concession of the plaintiffs' first prayer on this appeal and some of its own, show the same thing.
But, in the present state of the record, we think we need not inquire whether there was evidence of fraud or bad faith in making the estimates, as preliminary to determining whether the ruling of the court was correct on the 8th, 9th and 11th prayers, in annexing the inquiry on that question as an addition thereto, because, as we have stated, that very question 

 [*442]  had gone to the jury, with the defendant's assent, as a [**32]  part of the plaintiffs' prayer, and it could not afterwards object to the same inquiry being made part of its own prayers. What is admitted to be the law of a case cannot be gainsayed before the jury. The defendant, after conceding a prayer involving a certain question of fact, could not deny that such an inquiry was before the jury, any more than it could have argued against the law of instructions given without such assent. The same rule applies here. If the court had granted these prayers, without the addition, there would have been different instructions on the same part of the case--one side insisting that, according to its prayers, the question of fraud was open; the other insisting that no such question was to be considered, because its prayers had been granted without reference to that inquiry. We cannot perceive how, with such directions, and the arguments of counsel that might have been predicated on each, the jury could have found the issues according to the law of the case, though it is perceptible that they might have been confused and misled. All the defendant's prayers, therefore, which involve a consideration of the estimates, are incorrect, if the question of good [**33]  faith in making them is overlooked, and this we think applies to the 6th, 8th, 9th and 11th.
It is supposed, however, that the sixth prayer is relieved of this objection, because, as is said, it embodies the 3rd prayer, which was granted by the court. If there be any well-founded doubt whether the necessary facts are included, it was a proper ground for rejecting it. Prayers should be so framed as to instruct, not embarrass, juries, and where the court think they may have that effect, it is not their duty to place a construction on the language employed by counsel, (which, in some cases, might defeat the counsel's purpose, his interpretation being different from that of the court,) but it may reject the prayer as offered. We have an illustration here--one side insisting that all the facts set out in the third prayer are embodied into the sixth, while the plaintiffs contend that only the modification of the contract is incorporated. And we are admonished, by the ingenuity displayed by counsel in support 

 [*443]  of their respective theories of this very prayer, that erroneous notions of the law might be applied to the case, and, consequently, the ends of justice be perverted, according [**34]  to the construction that might be accepted by the jury, when the law should be certain, and not depend on the interpretation counsel might place on the court's instructions. In our opinion, however, this prayer does not submit to the jury the finding of the facts stated in the third prayer, which is distinctly done by the seventh, but refers merely to the modification of the contract, and, on the facts asserted, without reference to the making of estimates or the bona fides of their preparation, seeks to exclude evidence offered by the plaintiffs, the very object of which, among other things, appears to have been to show that there was gross negligence, amounting to fraud, in making them.
The seventh prayer is well framed, as far as concerns the facts stated in the third, but it leaves to the jury a similar question of law to that for which the eleventh prayer, on the former appeal, was held to have been properly rejected. Besides this, the effect of the prayer, if granted, would have been to repudiate the estimate made by the officers of the company, after it had been offered as a basis of settlement, according to the new arrangement, and, throughout the trial, relied upon by [**35]  the defendant as binding on the contractors, and prayers had been granted at the instance of the company, based on its validity. This estimate had been made by the proper officers, and, as we understand the evidence, the engineer had refused to settle on any other basis. If the plaintiffs were bound by it at all, they certainly were not unless made in good faith, and the prayer leaves out of view that inquiry.
The remaining question relates to the 13th prayer. We may well suppose that counsel in a cause comprising so many facts and propositions of law, would endeavor to abridge the labors of the trial, by reference to previous proceedings, instead of setting them out at length, and this is often done. Here the reference is not to the fifth prayer, as found in the procedendo record, but to the printed report of the former appeal. 

 [*444]  Apart from the unusual manner of asking the instruction, even conceding that the prayer had been introduced into the cause by the agreement of counsel for the admission of the former record, we think it was properly refused. It is a well-settled rule, that the refusal of a prayer is no ground of reversal, if the same has been substantially [**36]  granted before, for the reason that such refusal does the party no injury, at the same time that it prevents embarrassment by a complication of unnecessary propositions of law and fact. Now, supposing the fifth prayer, and the fourth, to which it refers, to embody all that the plaintiffs had a right to require in a prayer coming from the opposite side, it is quite plain that the same point, on the same facts substantially stated, had been presented to the jury by the plaintiffs' prayer, and those of the defendant, which were granted; that is to say, that the estimates, if made bona fide, were conclusive in the defendant's favor, and, if not so made, they were not binding on the plaintiffs.
Finding no ground for disturbing the judgment, it is affirmed.
Judgment affirmed. 

151 of 196 DOCUMENTS 

WM. C. REDDALL vs. WM. H. BRYAN and Others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 444; 1859 Md. LEXIS 89 

July 29, 1859, Decided 

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

This appeal is from an order refusing an injunction, upon a bill filed by the appellant against the appellees in April 1858.

The bill alleges that the complainant is and has been for a long time, and was, long before the commission of the trespasses hereinafter described, seized and possessed of a valuable tract of land called "The Resurvey of Magruder's and Bell's Honesty," situated in Montgomery county, containing one hundred and thirty acres, more or less; that certain individuals, (the defendants,) contriving and confederating together, on the 1st of April 1857, and on divers days and times between that day and the day of the filing of this bill, with force and arms, broke and entered complainant's said close or tract of land, tore down his fences, cut down and destroyed his crops, dug up and subverted his soil, and other great and irreparable damage to him then and there did, to his great injury; that said defendants have resolved and declared to complainant, and openly to others, that it is their fixed determination to continue said trespasses, and to do in and upon said land, and to complainant,  [**2]  like and further and greater irreparable damage; having dug deep holes in the earth and soil of the complainant, they are steadily and recklessly proceeding to plant and build thereon a large and heavy stone pillar or abutment, of about forty feet at the base, to be planted above one hundred feet beneath the soil, the said pillar being, as they allege, intended for the support of a bridge or aqueduct across a stream of water called "The Cabin John Branch," adjacent to complainant's said land, and they aver and declare that it is their fixed resolution and determination to continue the erection of said stone pillar or abutment until it shall be finished, or until the said bridge or aqueduct shall be completed and permanently established, which will be doing irreparable damage to complainant, inasmuch as it will be impossible for him except at incalculable and ruinous expense, to remove, fill up and restore the same, and that said bridge and pillar will be wholly useless to him, and if it were not, it is the fixed and avowed determination of the defendants so to construct said bridge or aqueduct, that it shall never be used by him or the public at large.

The bill further charges [**3]  that the defendants have, in addition to their other trespasses, driven down into complainant's land two lines of stakes, beginning at the proposed termination of said bridge on his land and extending entirely across or through a part of his land, and have marked out a space between said lines of two hundred feet in width through the whole of said extent, for the purpose, as they allege, of digging up, carrying away and converting to their own use, the inexhaustible banks of clay there to be found, which clay is of a character peculiarly valuable to complainant, being of that sort known as aluminous clay, and worth to him a large sum of money, all which they declare they mean to use in the construction of said aqueduct, or for purposes connected therewith, both on and off his land. In procuring said clay and in constructing said aqueduct, they aver their intention of digging up complainant's soil to a great depth, and, for the purpose of forming an aqueduct through his land, will necessarily be compelled to go to the depth of twelve or fifteen feet in many places, and in others, where the land is lower, will be compelled to raise great banks upon his land, and also to erect brick walls [**4]  through the same, and to cause a large and perpetual stream of water to flow through it for the sole use and benefit of said aqueduct, and to his entire exclusion, all which they declare it is their intention to do. This the complainant alleges will be doing irreparable damage to him, by permanently dividing his land, not only to depriving him of said valuable clay, and of the use of the land over and through which the said deep holes shall be dug, and the said ditches shall be cut, and the said aqueduct shall be built, but totally and forever obstructing him in his necessary use of his land for tillage, and his passage and progress for farming and other purposes, from one part to the other of that portion of his land so intended to be divided, dug up, built upon and obstructed.

The bill further states that complainant has instituted his action of trespass quare clausum fregit in the Circuit Court of Montgomery county, for the purpose of recovering damages against the defendants for the said trespasses, in the trial of which cause his rights will be adjudged by said court, and justice done him, so far as relates to said past trespasses, but not to any trespass which may be subsequently [**5]  committed, or the exercise of any preventive justice by which they may be restrained from doing irreparable damage to him.

It further states that said defendants pretend that in all trespasses which, as above charged, they have committed, and for all they threaten and meditate doing, as now set forth, they are authorized and protected by the authority of the Executive of the United States, such action of the Executive not being sanctioned by any Act of Congress, as complainant avers, under which any taking of private property for actual or pretended public use could be justified, but the only purpose of such action being the supply of water to the city of Washington, or the cities of Washington and Georgetown, beyond the territory of the State of Maryland, for which supply Congress has made merely, from time to time, appropriations, without any legislative enactment prescribing the taking of property, or any other proceedings or means for effecting such supply. The complainant further states that said persons so transgressing, claim colour of authority for that action of the Executive of the United States, under the Act of the Legislature of Maryland of 1853, ch. 179, which purports [**6]  (invalidly and ineffectually, as complainant insists) to give authority to the United States to purchase land for so supplying water through construction of dams, reservoirs, buildings and other works, and over such land to exercise necessary jurisdiction concurrently with the State of Maryland, and authorizing, in case of owners of lands and materials not agreeing with the United States for a sale, adverse appropriation of such lands and of requisite materials from lands in Maryland, by condemnation, and in valuation in manner as prescribed in the case of the Chesapeake and Ohio Canal Company's occasions for land and materials for that company's works, and he avers that no Act of Congress allowing any purchase by or for the United States, was ever passed, nor was any attempt by or for the United States ever made towards an agreement with him for a purchase of his land with reference to said works, and he insists and charges that all pretended authorization and sanction aforesaid, under said action of the Executive of the United States, and under such Act of the Legislature of Maryland, is repugnant to the Constitution of the United States and the Constitution of Maryland, and apart [**7]  from any constitutional interest, and without regard to any organic law or principle of written law, is invalid, and cannot operate or deprive him of his property to transfer it to a municipal corporation or corporations beyond the limits of a State within whose jurisdiction and protection it lies, and for no public purpose of the State of Maryland, nor for a purpose connected with the United States, as such, and of a federal and general character, nor even so declared to be in said Act of Assembly, or in any action of Congress.

The bill then prays for an injunction restraining the defendants from cutting down any further timber on said land of the complainant, or further proceeding in the planting or erecting any stone pillar or abutment thereon or therein, or any further digging in or through the same, or building brick or stone work thereon or therethrough, or the introduction of water through the same, or any further trespass thereon.

On this bill the court (BREWER, J.) passed an order refusing the injunction, from which the complainant appealed.  

DISPOSITION:
Order affirmed with costs, and cause remanded.  

HEADNOTES:

Digging deep holes and planting therein large stone pillars or abutments, digging and carrying away large banks of valuable clay, and constructing an aqueduct by ditches and embankments through, and thus permanently dividing the complainant's land, are acts which, if done without authority of law, would present a case of irreparable damage, authorizing the interference of a court of equity by injunction.

The right to an injunction is not ex debito justitiae, but the application is addressed to the sound conscience of the chancellor acting upon all the circumstances belonging to each particular case.

The chancellor has the right to require a full and candid disclosure of all the facts, and if there appears in the proceedings sufficient to show that this has not been made, he may properly refuse to grant an injunction.

The Constitution of this State declares that, "The Legislature shall enact no law authorizing private property to be taken for public use without just compensation, as agreed upon between the parties, or awarded by a jury, being first paid or tendered to the party entitled to such compensation." HELD:

1st. That these words are mandatory, both as to the use for which private property may be taken and the previous payment or tender of compensation therefor: it can be taken only for public use.

2nd. But the words, "public use," do not mean merely a use of the government or State of Maryland, and its inhabitants as such, but embrace within their scope a use of the Government of the United States.

3rd. The expropriation of land in Maryland for the purpose of supplying the city of Washington with water, is, in every sense, a taking of it for public use, and, therefore, the Act of 1853, ch. 179, authorizing such expropriation, is not unconstitutional.

4th. The Government of the United States has power, under the last two clauses of the Constitution of the United States, to construct an aqueduct, drawing its supply of water for the city of Washington, from within the limits of Maryland, and using and occupying land for that purpose in Maryland, by permission and consent of the State.  

COUNSEL:
John S. Tyson for the appellant:

The first question is as to the [**8]  sort of damage done and contemplated, to stay which the writ of injunction was sought. Was it irreparable? There cannot be a doubt on this subject. No one can hesitate to pronounce as irreparable such damage as is set forth in this bill--the digging of deep holes in the earth and planting therein stone pillars one hundred feet high, by forty feet in diameter; the digging and carrying away large banks of valuable clay; the construction of an aqueduct through the complainant's land from twelve to fifteen feet deep in some places, while in others it was raised on high banks, and permanently dividing the land by an insuperable barrier. But if it were not a case of irreparable injury, still it would remain a case of usurpation on the part of the defendants, and thus present sufficient ground for the summary interference of a court of chancery.

Has this irreparable damage to our property been rightfully or wrongfully committed? Is this alleged usurpation of property, indeed, no usurpation, but only rightful occupancy on the part of the defendants?

We have proceeded against the defendants as if they were private individuals, because acting as individuals merely, without authority,  [**9]  or acting under a false authority, they are personally responsible. They assume, or rather we assume for them, that they acted as the agents of the United States. Whether lawfully or unlawfully, is the question.

They pretend to derive their authority from sundry Acts of Congress authorizing the construction of an aqueduct for the purpose of supplying the city of Washington, or the cities of Washington and Georgetown, with water, also from the Act of the General Assembly of Maryland of 1853, ch. 179.

The initiatory Act of Congress on this subject was passed in 1852, 1st Sess., 32nd Cong., ch. 108, and is a mere appropriation to enable the President to cause surveys to be made for determining the best means of affording a supply of water to the cities of Georgetown and Washington.

By an Act passed at the second session of the same Congress, ch. 97, being the general appropriation Act of that session, $ 100,000 are set apart to be expended under the direction of the President for the purpose of bringing water into the city of Washington, and mention is made of the city of Georgetown. This appropriation is accompanied by the proviso, "That if any plan adopted by the President,  [**10]  should require water to be drawn from any source within the limits of the State of Maryland, the assent of the Legislature of that State should first be obtained."

This appropriation and proviso was not a separate and entire Act, inaugurating a separate and entire subject, concentrating upon it, alone, the whole force and authority of the legislative power, but a mere item in a general law--an appropriation Act, embracing a vast number of other items and appropriations.

The first preliminary to any assent on the part of Maryland, was to be the adoption by the President of a plan requiring water to be brought from some source within the limits of that State. Other preliminaries had been rendered necessary by a resolution of Congress, passed Sept. 11th, 1841, (5 Stat. at Large, 468,) which requires that the land or location to be purchased in another State, should first be selected, the title approved by the Attorney General of the United States, and the assent to its purchase requested of that State by the Secretary of War, before any such assent could be given or received. The Legislature of Maryland kindly dispensed with all these preliminaries, by the voluntary passage [**11]  of the Act of 1853, ch. 179.

This Act was not passed after the adoption of a plan by the President requiring water to be drawn from Maryland sources, but made to take effect upon the contingency of such adoption, and it renders unnecessary any compliance on the part of the Attorney General and the Secretary of War, with the resolution of 1841, by an anticipatory grant. So eager was this little State to surrender to "The Monster Republic" her precious right of eminent domain, that, in the uncertainty whether any or which Maryland fountain or fresh stream would be selected, she offers, by one fell swoop, to sacrifice them all to the President of the United States--peaceably, if it can be accomplished by the peaceable surrender of the citizen; if not, then by the intervention of all the powers of the State and of the United States.

This statement of the case should lead us to the conclusion that the Act of 1853 is repugnant to any organic law which a free State could be supposed to form, and, accordingly, we do find and pronounce that it is repugnant:

1st. To the Constitution and laws of Maryland.

2nd. To the Constitution and Laws of the United States.

It is repugnant [**12]  to that clause of the Constitution of Maryland (Art. 3, sec. 46) which declares that "the Legislature shall enact no law authorizing private property to be taken for public use without just compensation, as agreed upon between the parties, or awarded by a jury, being first paid or tendered to the party entitled to such compensation."

This Article does not expressly authorize private property to be taken for the public use; it tacitly recognizes the right as inherent in the government, (as, indeed, it is in every civilized government,) and merely guards its exercise. But neither the recognition nor the guard were incorporated into the old Constitution, both being regarded as equally inherent in the political organization of the State--lex non scripta--the inherent right of eminent domain. This right is ever accompanied with qualifications equally inherent and binding on the Government--

1st. Not to take private property, unless for public use.

2nd. Not so to take it without just compensation.

The right of the Government to take property, thus qualified, is derived (or presumed so to be) from original compact, and is only acknowledged by Art. 3, sec. 46, of the Maryland [**13]  Constitution. Let us, then, ascertain the meaning of the words, "public use." 1st. Who are the public? 2nd. What is the nature of the use? 3rd. Who is to judge of the nature of the use?

To be able to answer the first question, it is only necessary to know who are the parties to the aforesaid compact. They are each individual and the whole State. The public here meant, are the public of Maryland--no other public being parties to the compact. Public use, therefore, means the use of the people of Maryland.

In 5 Md. Rep., 320, Moale vs. The Mayor & C. C. of Balto., Chief Justice Le Grand, in drawing the distinction between the taxing power and the right of eminent domain, adopts the able opinion of Justice Ruggles in the case of the People vs. The Mayor, &c., of Brooklyn, 4 Comstock, 423, 425: "Taxation exacts money or services from individuals, as and for their respective shares of contribution to any public burthen. Private property taken for public use by right of eminent domain, is taken, not as the owner's share of contribution to a general burthen, but as so much beyond his share. Special compensation is, therefore, to be made in the latter case, because the Government [**14]  is a debtor for the property so taken; but not in the former case," &c. "So much beyond his share;" who are the other contributors? The rest of the people of Maryland. Among whom is the surplus share to be divided? Am ng the rest of the people of Maryland. And the compensation to the individual owner, for his surplus share, who pays that? The rest of the people of Maryland. The public is the public of Maryland. The shareholders are the people of Maryland. The parties benefitted are the people of Maryland. The contributors to the compensation are the people of Maryland. Not any other people; not the people of any other State; not the people of the United States; not the people of Washington City.

Surely the word, "public," in Art. 3, sec. 46, of the Constitution of Maryland, could not refer to any public other than the public--the people of Maryland; not to the people of any foreign State, or of any one of the States of this Union; nor to the people of the United States, all of whom are foreign States in reference to Maryland. The Convention of 1850 represented the people of Maryland, and could create a compact for no other people. Where a great public measure, such as the Act [**15]  incorporating the Chesapeake and Ohio Canal Company, is enacted by the Legislature of Maryland, subject to the adoption of other States, such Act receives no vitality until such general adoption, because each State acts under its own sovereignty, and can confer no benefit, nor impose any obligation on any other sovereignty.

Mr. Attorney General Cushing, in his argument on this subject, insists that the public use of the United States is a public use of each part of the United States, and, therefore, of each one of the States--that is, that the public of the United States are the public of Maryland, and the public use of the United States is the public use of Maryland. It is just as reasonable to say, that the public use of Maryland is the public use of the United States, which, legally and constitutionally, it certainly is not. Each State of the Union, and the whole United States, as a body in reference to each other, are as distinct and separate in their several political capacities, as either one is from a foreign European State. The people of Maryland are people of the United States, but does it follow that the people of the United States are the people of Maryland? The planet [**16]  Jupiter is a part of this solar system; her inhabitants are inhabitants of the solar system, but does it follow that all the inhabitants of the solar system are inhabitants of Jupiter? The idea is absurd.

The Constitution of Maryland, therefore, when it speaks of her Legislature and the public, means her own Legislature and the public of the State.

2nd. The use must be public--that is, for the people of Maryland. Another ingenious thought of the Attorney General here presents itself: "The Art. 3rd, sec. 46, of the Maryland Constitution, is of command only as to the matter of compensation. It assumes the power of the State to expropriate in the right of eminent domain, and looks by way of enactment to the single fact of guarding the citizens against loss, by reason of the expropriation." Opinion of Attorney Generals, Vol. 7, page 120. She may expropriate as she pleases, and what she pleases; she may seize and sell at her discretion; she may take your paternal acres, although your most darling desire is, that these shall descend to your children, provided, she will only pay for a legal, that is, an arbitrary, compensation. We know that this is not the law of Maryland. It is [**17]  true that our Constitution assumes the right of eminent domain, with its consequent powers, but as a right only to be exercised for the good of the whole State, not arbitrary, but well defined, precisely as it is in the said third Article.

The very same provision is in the Constitution of the United States, (5th Amendment.) Would Mr. Cushing put the same construction upon it? Will he say, that the only limit under that amendment to the right of expropriation is the obligation to compensate? And that, with this limitation alone, Congress may expropriate, at its pleasure, over the Union? No doctrine could be devised which would so completely place the States of this Union under the absolute control of the Federal Government. It would prove a "north-west passage" to consolidation, and finally to absolute power. The language, both of the Constitution of the United States and of the State of Maryland, is expressly at variance with any such interpretation. "Private property shall not be taken for public use," (which means, except for public use,) "and without just compensation."

Further, Mr. Cushing thinks that, "because the aqueduct is intended to benefit the city of Washington,  [**18]  it will in part be for the use of Maryland, because Washington is the seat of the Federal Government of the United States, and is, pro tanto, a seat of government for the State of Maryland, at which she appears, not only by the Executive in whose election she participates, and her members of the House of Representatives, but more emphatically by Senators, who constitute the very ministers of her state sovereignty in the Congress of the United States."

In the first place, Mr. Cushing is mistaken in assuming that the city of Washington is the seat of government of the United States. The 1st Art., 8th sec., No. 18, of the Constitution, gives "exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of government of the United States," &c. This ten miles square was ceded and accepted, and accordingly became the seat of government--the Capital of the United States. This ten miles square has also the character of a territory. Indeed, we have high authority for saying that because it has a distinct political society, it is a State, according to the definitions [**19]  of writers on general law, although not a State of this confederacy in the sense used in the Constitution. 2 Cranch., 445, Hepburn et al., vs. Ellzey.--Ch. J. Marshall. Being, therefore, in a general sense, a State, and in every sense a territory, it may have its capital. It has its capital, and that capital is the city of Washington. The whole territory of Columbia is the capital of the United States, made so by the Constitution; Washington is but the local capital of the territory. Washington is no more the capital of the United States than is the city of Georgetown, which is also in the District of Columbia; yet no one will contend that expropriation for the use of Georgetown would be expropriation for the use of Maryland. Even if Washington were the capital of the United States, the Act of 1853 would be void, because the power to enact it is not granted by the Constitution of Maryland, nor understood in her original compact.

Further arguing, Mr. Cushing says, "Even if the land thus acquired, could be considered as an addition to the District, still it would constitute no objection, because, in declaring that Congress may exercise exclusive jurisdiction in a district, not exceeding [**20]  ten miles square, ceded to become the seat of government, the Constitution does not mean to prescribe the geometrical form, but only the superficial contents of such district, which, as at present constituted, is of a rhomboidal form, and much less than ten miles square in actual dimensions."

The answer to this is, that this is one of those cases in which matter of form is matter of substance. This territory was to be the greatest capital of the greatest nation of the world, and required the most appropriate figure for the development of its beauty, glory and perfection. This was seen by the eye of Washington, as from the heights of the present capital, or those above Georgetown, he beheld the beautiful region watered by the Potomac. He saw that a square only, and not a triangle, or rhomboid, or paralellogram, or trapezium, was the proper figure, and ten miles square the proper space, for the development of the capital, and it was fixed in the Constitution that such should be its form and dimensions. Congress has the power to cede away a part of this territory, which it has done. But it has no power to add to it, without adding also to the Constitution.

But acceptance was [**21]  necessary to the validity of the original grant of a seat of government, and it followed the grant. Acceptance is equally necessary to such a grant as that contained in the Act of 1853, and there has been none. It is for this reason, if for no other, void.

But I have yet to learn under what clause of the Constitution of the United States, Congress has power to purchase lands or water power in another State, for the construction of an aqueduct for the use of the city of Washington. It is pretended that the 1st Art., 8th sec., No. 18, of the Constitution confers it in the following words: "Congress shall exercise exclusive legislation over all places, purchased by consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards and other needful buildings." There is no mention of aqueducts, nor is there any thing in the clause from which the right to build aqueducts could be inferred, unless it be contained in the words, "needful buildings." But these words clearly have reference to forts, magazines, arsenals and dock-yards, and mean needful buildings incidental to them. They are the principals, the needful buildings [**22]  the accessories.

But there is one thing always required in these cases, and that is, purchase. The government must purchase the property which it means to acquire, and then call upon the State to sanction such purchase. His honor, Judge Brewer, affixes the idea of purchase to a forced inquisition and assessment of damages, such as that prescribed in the Act of 1853. But this is not the idea of purchase, sanctioned by law, nor is it that which is meant in the Constitution of the United States. Blackstone, Book II, Ch. 15, enumerates various sorts of "purchase," and among them, speaks of that "vulgar acceptation, which is applied only to such acquisitions of land as are obtained by way of bargain and sale for money, or some other valuable consideration." That is the common sense understanding of the term. This vulgar acceptation, this common sense understanding of the term, is precisely what was meant by the word "purchase," in the Constitution of the United States. Why? Because the Constitution was intended for all the people of the United States, and, therefore, would only use words of universal application, such as is the word "purchase," in its vulgar and common sense interpretation.  [**23]  The laws of the United States invariably use it in that sense. 5 Stat. at Large, page 468. So do the laws of Maryland. See the case of the Naval Academy Act of 1847, ch. 158, and the various laws on the subject of the Cumberland Turnpike Road.

Now, this bill positively avers that no attempt was ever made by or for the United States, to form an agreement with the complainant for the purchase of his land with reference to said aqueduct. The appropriation, therefore, of the land of the complainant for the use of the aqueduct, was in direct violation of the Constitution of the United States. And if such contract had been made by any member of the government with the appellant, the same not having been authorized by any law of Congress, as required by the Act of 1820, ch. 52, it would, under that Act, have been wholly inoperative and void. It would have been equally void under the resolution of Congress, Sept. 11th, 1841, (Stat. at Large, Vol. 5th,) which requires the assent to such purchase of the State of Maryland, to be asked and given.

The appellant, therefore, is thrown for protection upon the 21st Article of the Bill of Rights of Maryland: "That no freeman ought to be taken [**24]  or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers, or the law of the land." The disjunctive conjunction, "or," in this Article, must be taken to mean "and," because a case may be supposed in which a freeman may be deprived by a judgment of his peers, in violation of the law of the land. The appellant, however, has been deprived of his property without judgment of his peers, and in violation of the law of the land.

The appellant is thrown, also, for protection upon the 10th sec. of the first Article of the Constitution of the United States, which forbids any State to pass any law impairing the sacred obligation of contracts. It is universally conceded that by the term contract, is here included conveyances and grants of land, and public compacts. The deed, therefore, conveying to the appellant his land, and the compact between him and the State of Maryland, by which the latter was solemnly bound not to take his property except for public use, were such contracts, and have been grossly violated by the Act of 1853, ch. 179.

3rd.  [**25]  The last question to be considered is, who are to judge of the nature of this use, and to define the relative obligations of the citizen and the State? The answer is obvious: The judiciary. This question is, here and now, before the proper tribunal. In the wildness and recklessness of legislative action, laws may be passed repugnant to other laws, repugnant to the organic law of the State, subversive of the rights of the citizen, and subversive of the peace and order of the government. This may be done, and has been done. The only remedy and corrective is to be found in an enlightened judiciary. In such a case, and to such a judiciary, I now appeal, with the utmost confidence in the integrity and intelligence of their decision.

John Brewer for the appellees.

A reference to the various laws of Congress, and the law of Maryland of 1853, ch. 179, in relation to the Washington Aqueduct, will show that Congress has appropriated $ 2,400,000 for the completion of this work; that these appropriations have been made as the work progressed, from 1852 to June 1858; that these laws do not contemplate the supply of Georgetown with water, and that for the supply of that city there are [**26]  other special means to be appropriated; that the work must be nearly completed, the last appropriation being for its completion; that the Government of the United States is the grantee under the law of Maryland of 1853, ch. 179, and that this power was conferred within two months after the Act of Congress of 1852, ch. 97, approved the 3d of March 1853, and that the Government of the United States, afterwards in four several Acts of Congress, recognize this law of Maryland, and under it proceeded with the necessary legislation to complete the work.

1st. As to the point in relation to the failure of the complainant to set out such a case of irreparable damage as will enable the court to grant him an injunction, it is not proposed to comment upon the cases (as this court have so recently in Shipley vs. Ritter, 7 Md. Rep. 408, examined the subject as between individuals and as to private rights,) but merely to show that in such cases no injunction will be granted where the remedy at law exists as between individuals still holding and owning the lands. But in this case, and such like, the irreparable character of the damage done to the complainant is essentially different. He has no [**27]  property remaining in the land condemned for the public use, taken by the State by virtue of its right of eminent domain. The Act of 1853, ch. 179, was passed for the very purpose of taking away from the citizen his lands, if resuming the paramount right of the State, of causing a divestiture of the owner's right. The damage must be irreparable in a different sense, therefore, when the State resumes the property and the citizen's interest in it is taken away. The irreparable character of such damage in the cases of condemnation of land, arises when no provision is made for the payment of the condemnation money assessed as damage and value of the land thus taken by the State from the citizen. His damage is irreparable, if his lands be taken without compensation, and that is the only way in which it is irreparable. The State might, by virtue of this right, condemn his whole farm, make a reservoir of it, or apply it to any other public use, and if he was paid or tendered its value, the damage could not be considered as irreparable. Now, in this case, though it is hinted at and implied, and rather obscurely set forth, that this land of the complainant has been condemned and taken for the [**28]  public use, under the Act of 1853, authorizing it to be so taken for the Washington Aqueduct, yet the complainant does not state that his land was or was not condemned. He does not state whether or not there was damage allowed him for this taking of his land, what it was, or whether or not it was paid or tendered. He makes no such statement, therefore, as shows that the damage done by taking his land would not be amply paid for, by the money awarded to him by the court and jury, as authorized by this Act of 1853. Hence he does not show, as he was bound to do, that there is any irreparable damage done to him. It was necessary, in order to enable him to obtain an injunction, to state the condemnation and the refusal to pay or tender, and that no provision had been made for the compensation. He has failed to place before the court all the facts of the case. There is also another defect in the bill, in stating the alleged damage and the want of proper redress. He alleges that he has instituted an action of trespass, in the trial of which, his rights will be adjudged and justice done him, so far as relates to the past trespass, but not as to future trespasses. Now, as the injury done, according [**29]  to his description of it, is an utter destruction of his property, he must be allowed its entire value in the trespass suit, and if he be allowed its entire value, there is no scope or ground for any other damage, or any other recovery, and thus his action of trespass, by his own showing, is fully sufficient to enable him to recover for all the damages done to his land, and none of them are irreparable.

2nd. The Act of 1853, authorizes lands in Maryland to be condemned for the purpose of supplying the city of Washington with water, and that the same proceedings shall be had as in the law (Act of 1824, ch. 79, secs. 15, 19, &c.) conferring that authority on the Ches. & Ohio Canal Co. As already stated, there is nothing in the bill to show that the condemnation of this land has not, in all things, been legally executed and the title vested in the United States. He alleges that no attempt was ever made by or for the United States towards an agreement with him for the purchase of his lands, with reference to the said works, and this is relied on to show the failure of the United States to comply with the law. To this we reply: 1st. That in the connection in which the words are used [**30]  in the bill, the works referred to are those of the Chesapeake and Ohio Canal, which renders the averment irrelevant and immaterial. 2nd. Both the Acts of 1853 and 1824, make a discrimination in the mode of proceeding, between resident and non-resident owners of land to be condemned. If the owner be a non-resident, or be out of the State or county, no effort need be made to purchase the land of him before proceedings of condemnation. Now, the complainant does not claim to be a resident of this State. He has not stated his residence. He cannot, therefore, avail himself of the privilege given to residents which seems to imply that such proceedings to condemn must be when the United States cannot agree with the owners, who are residents. In this, therefore, he has failed to allege that the law has not been complied with by the United States. 3rd. The Act of 1824, in its 19th sec., declares that it shall be lawful, where the consent of the owner cannot be obtained, to enter upon his land and proceed with the work, and that the pendency of any proceedings in any suit in the nature of ad quod damnum, and any other proceedings, shall not hinder or delay the work. Hence, it was obviously intended [**31]  that these great public works should not be arrested by the obstinacy or extortion of individuals, and that no injunction should be granted for such a purpose, even pending the condemnation. 4th. These proceedings to condemn, and this valuation or assessment, by sec. 15 of the Act of 1824, are declared to be conclusive upon all parties. 5th. There is no averment in the bill that the United States have not offered to buy the six acres required; the averment in this respect being only that there was no effort to purchase his "aforesaid land," which means his whole land or farm of one hundred and thirty acres, and the averment, therefore, does not necessarily exclude the conclusion that the United States may have offered to purchase the part of this land required.

There is another objection to the averments of the bill as alleging no sufficient cause for an injunction. It alleges that these trespasses were committed from the 1st of April 1857, till the day of filing the bill, some time in April 1858. For more than twelve months, therefore, after these works were being erected, were these trespasses continued without objection on the part of the complainant. Before that time Congress [**32]  had passed various laws for the purpose of constructing this aqueduct. In 1853, the Maryland law on the subject was passed. Congress had before these alleged trespasses began, appropriated $ 1,600,000 for the construction of this work, as it was being expended from 1852 to 1857. Now this complainant being presumed to know all these laws, must have known too, that these vast works, these excavations and embankments, and abutments, built at the expense of thousands of dollars, and stone and other materials brought on his land at the expense of tens of thousands more, were for this costly aqueduct. Yet, knowing all this, he makes no objection for twelve months, and after having thus induced the United States to expend on his land more than a hundred times it value, he then comes forward and files this bill for an injunction to arrest this great work in its progress. This lying by and permitting large sums of money to be expended without objection deprive the complainant of all equity. Saxton's Rep., 518, Southard vs. Morris Canal. 3 Edw. Ch. Rep., 552, Water Commissioners vs. Lawrence. 9 G. & J. 468, Amelung vs. Seekamp. 2 Bland, 99, Binney's Case. In the case of an individual who remains [**33]  silent while another assumes a right to build on, and does build on his land, his neglect to object concludes him forever. The injunction must be recommended by the dictates of conscience and sanctioned by the clearest principles of justice, and it is then a question for the discretion of the court. 8 G. & J., 93 Md., Savings Inst. vs. Schroeder. 9 G. & J., 479, Tide Water Canal Co. vs. Archer. 10 Md. Rep., 89, Roman vs. Strauss. 12 Md. Rep., 315, Nusbaum vs. Stein et al. When such a high and extraordinary power is called for, as the granting of an injunction attended with such consequences as the granting of this would be, I must see clearly and distinctly, says Judge Archer, in Wilson vs. Mayor & C. C. of Baltimore, 5 Gill, 391, that a positive injury has been inflicted. See, also, 23 Conn., 421, Whittlesey vs. Rail Road Co. 2 Green's Ch. Rep., 467, Capner vs. Flemington Co. Ibid., 482, Perkins vs. Collins. 11 Md. Rep., 1, Cherry vs. Stein. The court will the longer hesitate to reverse the order of the judge in this case from the fact that the records of condemnation of these lands, if they existed, (and from the statements of the bill and his opinion, we have the right to assume [**34]  that they do exist,) would be in the court where he presided when this bill was presented for his action, and from them he would have knowledge, judicially, of these condemnations, and of the proceedings of the United States in the construction of this work, which knowledge this court cannot have, because the bill has failed to disclose whether or not any condemnation has taken place.

3rd. The Act of 1853, is not in conflict with the 46th sec. of the 3rd Art. of the Constitution of Maryland. It does in its very language require the condemnation of the land, and payment or tender of the value according to the mode pointed out by the Act of 1824, which has often, in the many cases in which the Chesapeake and Ohio Canal Company was a party, been decided to be constitutional. Millions of property have been expended by the State and individuals upon the concession, that this law of 1824 is constitutional. 4 G. & J., 1. Is this Washington Aqueduct a public use? The Legislature are the exclusive judges of this matter. 9 Barb., 350, Harris vs. Thompson. 19 Barb., 166, Hartwell vs. Armstrong. It is public though confined to a particular district. The benefit need not be universal, nor [**35]  even general, and some may be benefitted more than others. The court will presume the Legislature acted on good and sufficient evidence, and that presumption is conclusive. 19 Barb., 81, De Camp vs. Eveland. 5 Paige, 137, Varick vs. Smith. It is sufficient if the public convenience, or utility, or welfare, requires it. 5 Gill, 383, Alexander et al. vs. Mayor & C. C. of Balto. 5 Md. Rep., 320, Moale vs. Mayor & C. C. of Balto. 7 Md. Rep., 500, Steuart vs. Mayor & C. C. of Balto. 3 Bland, 451, Belona Company's Case. Where the only question is the constitutionality of the law, equity will not interfere, but leave the party to his remedy at law. 4 Halst. Ch. Rep., 237, Troth vs. Troth. But the aqueduct is a public use. The supply of water is for the city of Washington, the capital of the government of the United States, where, as this court will judicially notice, all the offices of the government, executive, legislative and judicial, perform various of their most important duties and many of them reside. It is the capital of that government of which this State is a component part; it is the capital of the United States of which Maryland is one. It is in one sense, therefore, the capital [**36]  of this State for the transaction of all the business of this State which is required to be done by the general government under the Constitution and laws of the United States and which are the supreme law of this State. Maryland has a much more direct interest, as a State of this Union, and does thereby confer more generally, a public use, in conferring on the United States this power than she has in conferring the power to condemn land on the Chesapeake and Ohio Canal Company, for the purpose of its corporation. The health of this city, the preservation oft he public buildings erected in part by the money of the people of Maryland, and which have often been consumed by fire, with valuable public records, for want of this very ample supply of water, the growth of this city, and numerous other paramount public considerations require, that Washington should be supplied with water by such an Aqueduct through part of this State. The eloquent remarks of Judge Woodbury in the case of West River Bridge Co. vs. Dix, 6 How., 545, 547, apply strongly to the effort here made to arrest this great public work. He says: "So as to a road, if really demanded in particular forms, &c., to accommodate [**37]  a growing and changing community, and to keep up the wants and improvements of the age, such as its pressing demands for easier social intercourse, &c., and it is manifest unless such a course can be pursued, social and commercial intercourse might be petrified, and remain for ages, like the fossil remains in sand-stone, unaltered, and the government, the organ of a progressive community, be paralyzed in every important public improvement." The Legislatures of the United States and of Maryland, having both decided that the public interest requires the use of this water by such an aqueduct, in the various laws referred to this court, will consider that point as conclusively established. 5 Paige, 137, Varick vs. Smith. 9 Barb., 350, Harris vs. Thompson. 27 Ala., 104, Burden vs. Stein. 4 Cushing, 60, Lumbard vs. Stearns. Who can judge of the wants of the city of Washington and of the propriety of relieving them better than these legislatures? If it be not clear that the use is private the injunction will not be granted. 1 Bald., 205, Bonaparte vs. Rail Road Co. So far from this being the case, is it not clear that the use is for the public, not for a corporation, whose object (though [**38]  that may be public) would be for the profit of its individual stockholders, but for the General Government, its officers, buildings? &c. Assuming, as we have the right to do, from the failure of the complainant to aver the contrary in his bill, and from the implications that it is so in various parts of his bill, that his land has been condemned, he is now concluded by that condemnation, no other court having jurisdiction over the matter, the special means of redress being under that law and that law only. Act of 1824, Ch. 79, secs. 15, 19. 4 Johns. Ch. Rep., 352, Le Roy vs. Corporation of New York. 5 Gill, 398, Alexander, et al. vs. Mayor and C. C. of Balto. 8 G. & J., 443, Wil., & Susq. Rail Road Co. vs. Condon. 11 G. & J., 398, Ches. & Ohio Canal Co. vs. Grove. 1 Md. Rep., 567, Hamilton vs. Annapolis & Elk Ridge Rail Road Co. 7 Md. Rep., 500, Steuart vs. Mayor & C. C. of Balto. 10 Md. Rep., 544, Graff vs. Mayor & C. C. of Balto. "The unconstitutionality of a law must be clear, decided, inevitable. The court cannot inquire into the wisdom, policy or justice of the Legislature." 1 Bald., 76, 441, 442. "To render a law unconstitutional, the repugnance must be clear, immediate and direct,  [**39]  not merely speculative, indirect and contingent." 3 Gill, 14, Howell vs. The State. "We are bound to presume, in the absence of evidence, that the tax was laid according to the Constitution," say the court in 1 Gill, 308, Waters vs. The State. Nor is this Act of 1853, unconstitutional in view of sec. 17, Art. 3, of the Constitution of Maryland. That point is so fully disposed of in the opinion of Judge Brewer in the case of Anderson vs. The United States, and by this court in Davis vs. The State, 7 Md. Rep., 159, that nothing more need be said on that subject.

4th. As to the constitutionality of the Act of 1853, and the proceedings thereunder, in respect to that part of sec. 8, Art. 1, of the Constitution of the United States, which declares that Congress shall have power to exercise exclusive legislation in all cases whatever, over such district not exceeding ten miles square, as may by the cession of particular States, and the acceptance of Congress, become the seat of Government, and to exercise like authority over all places purchased by the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards and other needful buildings.  [**40]  For the meaning of the word, purchased, in this clause, we refer to the opinion of Judge Brewer in Anderson vs. The United States, and the authorities cited by him. If this general extended meaning of the word purchase be not adopted, the Government of the United States would not have the power to accept a gift or devise of land for a fort or other necessary public work. But the Act of 1853, does not authorise the United States to exercise exclusive legislation, or indeed any legislation at all, over the condemned land to be used for this aqueduct, but to purchase such lands and construct dams, &c., and to exercise concurrently with Maryland, such jurisdiction over the same as may be necessary for the purpose of constructing dams, &c. Maryland still continues its jurisdiction. If, therefore, this law does not authorize exclusive legislation over the condemned land, this clause of the Constitution of the United States does not apply to it. This clause does not, nor does any other in that instrument, prohibit the exercise of the concurrent jurisdiction to purchase lands, build dams, &c., with the consent of the State. It was intended to limit the instances of exclusive legislation to [**41]  be exercised by the United States. It was no objection under this clause, that the United States became a stockholder in the Chesapeake and Ohio Canal Company, and with its other corporators, exercised this very power now conferred on the United States concurrently with Maryland by the Act of 1853. The effect of such a limited construction of the powers of the national government in the acquisition of territory upon the purchases it made of Louisiana, Florida, and parts of Mexico, would lead to consequences that might destroy the Union. But it is submitted that the powers conferred by the last section of this article, "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States or any department thereof" may be invoked to maintain the laws of the United States in relation to this subject. Now, assuming, as we have the right to do since the legislation of Congress and of Maryland has taken place, that an abundant supply of wholesome water is required at the seat of government, and cannot be obtained in the District of Columbia, and that it can be had in [**42]  Maryland, cannot the United States accept this Act of 1853 and execute it? If it cannot, then the capital of the Union may be without a supply of water, which the health of the officers of the government, their comfort and convenience, the security of the public buildings, the safety of the public records and other property, require; then the seat of Government of the United States may fail to answer the object of its establishment; then this "exclusive legislation in all cases whatever" over this District, does not comprehend the power of legislation to prevent the failure of the seat of government to answer the end for which it was established. This is such a suicidal construction of the powers given over the District of Columbia as to be altogether inadmissible. 3 Story's Com. Const., secs., 1243 to 1250. The same rigid construction would prove that the establishment of the Military Academy in New York, the Naval Academy in Maryland, the Observatory in Washington, the laws authorising the coast survey, the erection of custom houses, post-offices, and even forts, magazines and light-houses, are unconstitutional for want of express powers in the Constitution of United States. 3 Story's [**43]  Com. Const., sec. 1253, note 1.

It is also said the 5th amendment to the Constitution of the United States, that private property shall not be taken for public use without just compensation, applies to this case, and inhibits the United States from taking this land for the aqueduct. Now, this assumes that private property in this case was taken without just compensation, which the bill does allege as a fact, and, therefore, the fact does not appear in order to apply this clause to the case. It cannot apply to the Act of 1853, for that in its very terms requires the condemnation, &c., and moreover this clause does not apply to any limitation upon the power to be exercised by the States, but solely to a limitation on the power of the United States to take private property for public use without just compensation. 7 Pet., 243, Barron vs. Mayor & C. C. of Balto. It seems to us, therefore, that this clause does not aid the complainant's case. But does it not aid the defence? It is in effect a declaration that private property may be taken for public use with just compensation, by the Government of the United States. Then if it be purchased by the consent of the Legislature of the State,  [**44]  and the necessary (not exclusive) jurisdiction be ceded by the State to the United States, as required by the joint resolution of Congress of Sept., 1841, the acquisition of this land by the United States is constitutional. The power granted, (sec. 8, Art. 1,) limits the cases where the General Government shall exercise exclusive legislation, but the clause here referred to speaks of the necessary legislation, not exclusive. In many cases, such as this very purchase of the land for an aqueduct, exclusive legislation is not required to be exercised by the United States, and, therefore, only concurrent jurisdiction is granted by the State. So, also, in the Act of 1845, ch. 215, ceding to the United States the sites of forts Madison and Severn: "The Commonwealth shall retain a concurrent jurisdiction with the United States in and over the ceded territory." So the Acts of 1847, ch. 158, and 1853, ch. 185, as to the Naval Academy, and also the Acts of 1856, chaps. 176 and 207, where the State reserves the right of concurrent jurisdiction. Now, in all these cases, where the lands are held by the United States, for necessary public purposes, in this State, there is only concurrent jurisdiction [**45]  granted, and, therefore, they cannot be held under the first article of the Constitution of the United States. From these cases it appears that the Government of the United States can hold property in Maryland without having exclusive legislation over the same, and that, therefore, this property, thus held, is not held by the United States under Art. 1, sec. 8, which is a limitation on such property as the United States shall hold, over which they are authorised to exercise exclusive legislation; we, therefore, conclude that the United States may hold land in this State under the Constitution of the United States, the power to hold which is not comprehended in Art. 1, sec. 8, of the Constitution, and this land purchased for the Washington Aqueduct may be so held.

In reply to the objection that the United States have not assented to this law of Maryland, we refer to the solemn assent given by Congress and the President, in the various laws making appropriations for the construction of this aqueduct. And in reply to the objection that the whole State is made subject to this law, we say that its operation must be confined to the valley of the Potomac, as the only locality which could [**46]  furnish the supply of water, and that the Chesapeake and Ohio Canal being confined to that valley, so would the construction given to the sections of its charter, under which this law is to be executed, confine the operation of the Act of 1853 to that valley.

Chas. F. Mayer for the appellant in reply.

The appellees contend that the bill shows no case of irreparable damage, and therefore no ground for an injunction. An injury is shown that involves the appropriation of the land itself, the substance of the inheritance, threatens the just enjoyment of the property in future, and proves itself not merely a trespass, fugitive and temporary, but in effect a nuisance. In such cases all authorities unite in awarding an injunction. 7 Md. Rep., 408, Shipley vs. Ritter. 1 Md. Rep., 543, White vs. Flannigain. 2 Story's Eq., sec. 928. 3 Atk., 21, Coulson vs. White. 18 How., 431, State of Pennsylvania vs. Wheeling Bridge. 18 Ves., 186, Thomas vs. Oakley. The superlative term "irreparable," is not here taken literally, else the injured one's redress by injunction would depend on the wrong-doer's purse, and his ability to pay an extreme sum for damages would be his license for outrage,  [**47]  and a government with a nation's wealth would, by imperial grace, be tyrant over every man's possessions.

It is not necessary to dwell on the objection, that an action of trespass for the intrusion here, has been brought. If it were to operate in the way singularly fancied on the part of the appellees, and to supersede this equitable proceeding, we could be put, and on motion, to our election of remedies. But there is no equivalent in our suit at law for our present procedure. Indeed, so important was an attendant suit at law, to try title, at one period deemed, that in no case of injury to land, of nuisance, &c., was an injunction applicable, unless to run with a suit at law. In the very case (the cardinal reference for irreparable damage doctrine) of Amelung vs. Seekamp, 9 G & J, 468, there was an action at law to which the injunction was to be incidental. As was said in 1 Ves., Sen., 188, Hughes vs. Modern College, the trespass suit would be but for "the wrong done," and not "equal to the remedy in equity," even if we were not to contemplate it as the means to show title.

The appellees think that as the United States through their agency, entered our land so resolutely [**48]  and persevered in the havoc of excavation, embankments, and construction, so unflinchingly, without being arrested by injunction, that remedy to avert further evil and abate the nuisance, so boldly erected, ought not to be granted. Because such invasion has so far prevailed, it is assumed that the appellant looked upon it approvingly or encouragingly, and so has no right to complain. It would be enough to say that the success of the violation implies no such imputed acquiescence. But it is certain that no passiveness can give title where there is an original wrong, no matter how long it be patiently borne. None of the cases cited sustain the pretension urged by the appellees. It was not allowed to prevail in White vs. Flannigain, 1 Md. Rep., 525, nor in Holland vs. Mayor & C. C. of Balto., 11 Md. Rep., 186.

The appellees assume that the relief we here seek, could have been had upon appeal from the condemnation, which they take for granted (without any admission to such effect in the bill) took place in this instance. The cases cited in support of such view, only make such an appeal the fit and exclusive remedy for correcting errors, and excesses within the scope of the authority [**49]  of the jury, or assessors carrying out the act of legislation. What power is there in such a procedure to have that act of legislation annulled as giving no authority at all to the jurors or assessors? No adjudication determines that proposition. The cases cited were of injuries and complaints, that admitted necessarily the operativeness of the law that took away the property in question.

These objections being removed that encumber the avenues to an inquiry into points of merit, let us look at the case upon its justice.

The right of eminent domain is conceded. Its limitations, its object and exigencies, and its safe-guards, deferring to the sanctity of individual property, are as unquestionable. The right is one of sovereignty, and the sovereignty is that under which the citizen's property is held, and that sovereignty operative in protective law, and embodied in the public of a State, has alone any reserved interest in the citizen's property. That reservation can, therefore, be only for the benefit of that public, as a resource and estate that the sovereign is not to be construed as having parted with. Knowing the sovereign of these auspices of our individual property,  [**50]  we know the public to whose paramount uses and exigencies our property is tributary. The reservation of the pre-eminent right is incident to the tenure of the property, and that is under the sovereignty of the State. Our property is then answerable to this prerogative exaction only for the uses of the State of Maryland--the public of Maryland--that public territorially localized--the uses overruling our individual rights thus territorially fixed and circumscribed. When our Constitution, adopting only the terms of the general political law declares that private property shall be taken only for public uses, it means the uses of the public. What that public is we have defined. From the very origin and nature of the right of eminent domain the citizens' property can be taken from them only for the uses of the public of Maryland. For any other use than that the property of the Marylander is inviolably and sacredly his. If these views be sound the question answers itself, can a use, an object, a healthful or luxurious provision of another public than that of the Maryland public, justify the divestiture of a Maryland freehold to subserve that foreign public? The question is not whether Congress,  [**51]  legislating for the District, is to be deemed a local legislature or the legislature of the Union. The case of Cohens vs. Virginia, 6 Wheat., 264, settles that point for the latter and supreme capacity. But that relation of Congress to the District of Columbia, does not make the district less a territory and a political body or State (though not a State of the Union) extraneous to Maryland, and in no sense a part of our State.

Can a supply of water for the convenience and health of the public of Washington City--an object circumscribed by the bounds of that city--be a use of the public of Maryland, to which the rights of property of Marylanders shall be subservient and succumb? It is needless to state, that, august as may be the legislative sphere of the United States, it is a government of limited powers, and that the sovereignties of the States are, within their territories, as independent as if (except for federal purposes) they were not members of the Union. They are in all but federal relations foreign as sovereigns to each other. And so as to each, except in the exercise of its limited powers, is the United States. 2 Pet., 586, Buckner vs. Finley, et al. 10 Pet., 572, Dickens [**52]  vs. Beal. 12 Pet., 32, Bank of U. S. vs. Daniel, et al. It cannot be pretended that Congress could, acting either for the Union or for the District of Columbia, specially, by any legislation, appropriate to the United States territory of a State, whether in shape of a citizen's freehold or otherwise, although the laws of Congress, within the enumerated subjects of congressional action may be supreme within the borders of the Union. And so a law of Congress for the benefit of Washington City would be respected throughout the United States, but only as a law for that territory of Columbia. Except for some of the objects of federal power, the United States cannot acquire property in any State, and how it may acquire it is indicated by Art. 1, sec. 8, part 18, of the Constitution of the United States, and it is by purchasing. The act of purchasing is prescribed, and, therefore, there is an end of speculating, whether a technical title by purchase is declared by the Constitution as that under which the United States may enjoy property within the limits of a State. The act of purchasing never can be construed having a title divested by condemnation, or by some form other than by descent.  [**53]  The purchasing of the Constitution means buying, or, at furthest, acquiring by voluntary alienation. This view of the limited power of the United States as a proprietary of land in this shape, would, of itself, denounce the forcible appropriation by her of a Marylander's land in this instance, although under the obsequious sanction or connivance of a Maryland Act of Assembly. At least it shows that, looking at the United States as even abiding in the District of Columbia, and, with all the limited majesty of the federal agency legislating for the territory of the district, there can be no invasion by that power of the soil of Maryland and a dispossession of citizens of Maryland.

The privilege of the United States to enter upon the soil of the States, whether as purchaser or otherwise, and with reference even to objects of national concern, if not within the enumerated titles of power and administration, has always been most strictly scanned. As to the right to make canals and railroads, (the internal improvement issue,) even the most liberal patrons of United States authority concede the privilege, only in the most direct and urgent connection and exigency for carrying out a specific [**54]  and express power. 3 Story's Com. Const., secs. 149, 153, ch. 26. The same jealousy of concession is shown as to the clause (Art. 1, sec. 8, par. 8) of the Constitution, which allows the United States to establish post offices and post-roads. The immunity of the soil of the States from the encroachment of the federal power is insisted on, and establishing is not agreed to be convertible with making or building, and the provision is inserted to give the United States only the small power of adopting for post routes such roads as the States may have laid out. Discussed and disputed as this interpretation has been, the sensitiveness for an exclusive freehold of the States is such, that the federal government has practically bowed to the restriction and acts on the interdict. There is even a judicial decision sanctioning the close construction. See Brightly's U. S. Digest, 4 note (m). The whole of this subject is treated amply by Judge Story in 3 Com. Const., ch. 18, pages 22, 48. President Monroe's views in his message are there fully given. The idea is there scouted by him that the United States can enter a State and coercively take land.

Our opponents say that, the Maryland Legislature [**55]  enacting that our land shall be taken for the accommodation of Washington city, has determined conclusively that that is within our Constitution a public use legitimately binding our property. The legislative function is, in other words, paramount here to the judicial department, and the conservative expounder of the citizen's constitutional rights is, by this sovereign rescript, of the General Assembly, obliterated. Let a private purpose, or an extra-territorial project be but declared to be a public use, and its nature changes to a matter of public concernment, and more than that, to an interest and desideratum of the public of Maryland. The statement of this bold proposition is enough to effectually repel it. None of the cases cited decide any such principle of despotism and usurpation. They only declare that the judgment of the Legislature is decisive, that an object which does embrace the public, does so sufficiently to justify the exercise of the prerogative of eminent domain. The case referred to, of Bonaparte vs. Rail Road Co., 1 Bald., 205, signally illustrates this; for there the court went critically into the scrutiny as to the public nature of the object, and was nearly [**56]  inclined to annul the law, because the toll of the rail road made the enterprise so egregiously a monopoly as possibly to debar the public enjoyment of the route. When the judicial ceases to be a co-equal power with the legislature, and the judiciary is silenced as a censor upon the extravagant construction, or blind encroachments of legislative authority, the proposition advanced may be welcomed, but not until then.

Our Constitution (Art. 3, sec. 46) declares that "the Legislature shall enact no law authorizing private property to be taken for public use without just compensation, as agreed upon between the parties, or awarded by a jury, being first paid or tendered to the party entitled to such compensation." This provision limits the mode of ascertaining compensation and confines it to a jury's inquiry, thus precluding the action of commissioners, which under some decisions has been declared legitimate. Even with the action of commissioners, notice to the parties interested would, as a requirement of the common law, be necessary. But it is emphatically demanded to make complete a jury trial, which, per se, enjoins notice to parties, and the privilege of attendance at the trial,  [**57]  and also implies the right of the parties to select jurors. The Act of 1824, ch. 79, made the rule of proceeding under the Act of 1853, ch. 179, allows no such privileges, elementary as they are to jury trials. No notice, no striking of jurors, no attendance at the jury's inquiry, is assured to the citizen whose land is to be taken from him. Is such a process a fulfilment of the constitutional requirement, which, save against the course of proceeding, and for the end there prescribed, makes the citizen's freehold sacredly his? We insist that this mockery of an arbitrament for the citizen's compensation--a disregard, flagrant and oppressive, of the constitutional safeguard--of itself annuls the Act of 1853, ch. 179. Although the party be a nonresident (which we do not admit as to ourselves) the proceeding by jury and the giving of notice as to place and all other privileges are to be afforded. If these duties cannot be performed, it would only appear that a non-resident's land cannot be taken. But the fault of the Act of 1824 is, that it embraces all proprietors, residents and non-residents.

Without repeating what has been urged in our behalf on other points, as the failure of [**58]  due acceptance of the Act of 1853, and no effort to purchase from us being shown, and other objections, we insist that they apply to bar the application of the Act as any sanction for the invasion of our estate.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*476]  BARTOL, J., delivered the opinion of this court.
In the opinion of a majority of this court, the nature of the acts complained of in this bill, and of the injury alleged, is such as to present a case of irreparable damage, which would entitle the complainant to the interposition of a court of equity by injunction, if it sufficiently appeared on the face of the bill that the acts charged were done by the defendants without authority of law.
We think there is great force in the view taken by the Circuit court of the manner in which the case of the complainant is stated in the bill, and cannot avoid the conclusion, "that it is made out by the concealment of facts having a very important bearing upon it, and which would (if fully stated) act materially upon the conscience of the court."
The right to an injunction is not ex debito justitiae, but such application is addressed [**59]  to the sound conscience of the chancellor, acting upon all the circumstances belonging to each particular case. He has the right to require a full and candid disclosure of all the facts, and if there appears in the proceedings, sufficient to show that this has not been made, he may properly refuse to exercise the extraordinary power of the court, through the instrumentality of a writ of injunction.
There is sufficient, however, on the face of the bill to show that the defendants are acting under the authority of the government of the United States, in the construction of an aqueduct 

 [*477]  for supplying the city of Washington with water, and that the authority of the general government to occupy and use the lands of the complainant for that purpose, is based upon the Act of Assembly of 1853, ch. 179.
That Act authorizes the expropriation of lands within the State of Maryland, for the purpose of constructing such aqueduct. It is not alleged in the bill that the defendants have not in all things complied with the provisions of that Act, or that condemnation has not been made, as therein provided, and the damages awarded tendered to the complainant. But the ground is taken in the [**60]  bill, and it has been insisted on in the argument, that the Act of 1853 is unconstitutional and void, because the use for which the property is authorized to be taken, is not "a public use," within the meaning of the 46th section of the 3rd Article of the Constitution.
The language of that section is:
"The Legislature shall enact no law authorizing private property to be taken for public use, without just compensation as agreed upon between the parties, or awarded by a jury, being first paid or tendered to the party entitled to such compensation."
We regard the words of this section as mandatory, both as to the use for which private property may be taken, and the previous payment or tender of compensation therefor. It can be taken only for public use. But we cannot adopt the narrow, and restricted construction of these words, contended for by the appellant's counsel. They do not mean merely a use of the government of Maryland, or of the State of Maryland, and its inhabitants as such, but, in our opinion, they embrace within their scope, a use of the government of the United States.
The supplying of the capital of the United States with water, essential for the preservation [**61]  of the public buildings and public records, and alike essential for the use of the officers of the government, who are compelled to reside there, permanently or temporarily, is surely a public use, within the meaning of our State Constitution.
Maryland, as one of the States of the Union, and, in some 

 [*478]  sense, an integral part of the great public, interested in and constituting a part of the general government, has, by the provision of her Constitution, which we have cited, conferred upon the Legislature the power of passing the Act of 1853, and we should have no difficulty in pronouncing that Act valid and constitutional, even if there were no other or different relations subsisting between the State of Maryland and the seat of government of the United States, than those which belong to every other State. But, as justly remarked by the judge of the Circuit court, in his opinion in the case of United States vs. Anderson, "By the Act of 1791, in pursuance of the 8th sec. of the 1st Article of the Constitution of the United States, the State ceded jurisdiction over its portion of the ten miles square, for certain purposes. **** The State never intended to abandon [**62]  all interest in the District."
The relation, therefore, between the District of Columbia, composed of territory ceded by Maryland for certain purposes only, and the State of whose soil it forms a part, is more intimate and close than that which it bears to any other State.
We conclude, therefore, that the expropriation of lands in Maryland, for the purpose of supplying the city of Washington with water, may be regarded, in every sense, as taking it for public use.
We are also of opinion that the government of the United States possesses the power, under the Constitution, to construct such aqueduct, drawing its supply of water, if necessary, from within the limits of Maryland, and using and occupying lands for that purpose in Maryland, by the permission and consent of the State. We have not failed to recognize the force of many of the views presented in the able arguments of the appellant's counsel on this point; and we appreciate the delicacy and importance of questions, involving the exercise by the general government, of powers not expressly granted. We do not undervalue the doctrine which inculcates a jealous and watchful vigilance against any encroachment upon the rights [**63]  of the States; but we know of nothing to prevent a State from entering into any contract which is not prohibited by the Constitution of the United States or its own fundamental law. 

 [*479]  We regard the power of the Legislature to pass the Act of 1853, as clearly recognized by the 46th section of the 3rd Article of the State Constitution, and we think the power of Congress to accept the privileges granted under the Act of 1853, and to provide for the construction of the aqueduct, is conferred by the last two clauses of the eighth section of the first Article of the Constitution of the United States.
The order of the Circuit court, from which this appeal was taken, will be affirmed, and the cause remanded.
Order affirmed with costs, and cause remanded. 

152 of 196 DOCUMENTS 

JOHN GREGG and others, vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 479; 1859 Md. LEXIS 90 

July 29, 1859, Decided 

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

The Bcard of Directors of the Baltimore and Ohio Rail Road Company adopted, on the 17th of December 1856, a resolution for an extra dividend, in which, after reciting, by way of preamble, that there has been appropriated by the company, from time to time, the sum of $ 3,000,000, and upwards, of the net earnings of the main stem of the road, to the purpose of construction, with the intention, in conformity with the practice of the company, of paying the same to the stockholders in the shape of a dividend, at such time as they might deem judicious, it is provided that an extra dividend of thirty per cent. be declared on the stock of the company, to be paid on and after the 12th of January 1857, to all stockholders owning stock on the 22nd of December 1856, in certificates of indebtedness, bearing an interest, from the 1st of June 1857, of six per cent. per annum, payable half yearly, on the first day of December and June in each year, until the 1st of June 1862, inclusive, after which said certificates of indebtedness shall be converted into the stock of the company at par, and blank forms of certificates were prepared by the company [**2]  to be issued to the stockholders, in conformity with this resolution.

On the 10th of January 1857, the Mayor and City Council of Baltimore, who were owners of $ 3,500,000 of its stock, and also creditors in the sum of $ 5,000,000, secured by mortgage, filed a bill in the court below against the Rail Road Company to annul the above resolution, and for an injunction to restrain the company from issuing and delivering these certificates of indebtedness. This bill states, that from the year 1830 to the present time, a part of the surplus profits of the road, amounting to $ 3,000,000, has been applied to the construction and reconstruction of the road, its repairs, the building of bridges, making sidelings, to the purchase of real estate and depots, and for numerous other substantial and permanent improvements, but denies that such use and employment of these surplus profits created any indebtedness on the part of the company to its stockholders or any one else, or that the company had any power, under its charter, to make them the subject of a dividend. It further charges that the transaction now contemplated by the above resolution is substantially an increase of the capital stock [**3]  of the company, and a multiplication of its shares of stock, which the company has a right at any time to accomplish, under the 13th sec. of its charter, but even when viewed in the light of a present increase of the shares of stock, the resolution is illegal and inoperative, inasmuch as it creates a species of preferred stock not authorized by any provision in the charter of the company. The bill also further charges that by the 7th sec. of the charter of this company, the complainants (the Mayor and City Council of Baltimore) are entitled to appoint a director for every twenty-five hundred shares of stock owned by them at the time of the annual election of directors of the company, and complainants are informed and believe, and therefore charge, that a majority of the said board of directors did, with a view to defeat this right of the complainants to appoint directors according to their proportion of said $ 3,000,000 of stock, adopt the plan of ostensibly treating said surplus profits as constituting a debt due from the company, well knowing at the time that no such debt existed, but designing thereby to defraud the complainants out of their chartered rights and power to appoint [**4]  an additional number of directors as aforesaid.

Upon this bill the court granted an injunction, as prayed, and, on the 21st of January 1857, the railroad company appeared and filed its answer under its corporate seal, which was subsequently verified by the oath of its President, made in open court on the 2nd of February 1857. This answer admits that since the year 1830, surplus profits have been earned by the company amounting, on the 1st of October 1856, to $ 3,833,071.75, over and above the dividends in stock, money and bonds from time to time paid, and that $ 3,000,000 of these surplus profits have been applied to the construction and reconstruction of the road, as charged in the bill, but denies that the company had no power, by its charter, to declare the dividend in question, and, on the contrary, insists that they have such power, and that the dividend, in the shape in which it has been declared, is entirely legal, and has been so decided to be by the Court of Appeals in 6 Gill, 363, upon a state of facts identical with those existing in the present case. The answer also denies the averment of the bill, that a majority of the Board of Directors, with a view to defeat the [**5]  right to appoint directors, adopted the plan of ostensibly treating this surplus as constituting a debt due from the company, and knowing, at the time, that no such debt existed, but designing thereby to defraud the complainants out of their chartered rights to appoint an additional number of directors, and insists that such averment is absolutely untrue.

At the same time with the filing of this answer, a motion to dissolve the injunction was made and set down for hearing. An order was then passed allowing testimony to be taken before a commissioner, relative to the allegations of the bill, to be used at the hearing of the motion to dissolve, under which a large mass of testimony was taken and returned. On the 23rd of March 1857, whilst the argument on the motion to dissolve was going on, the Board of Directors of the railroad company passed resolutions which declared that the above answer had been filed without having been submitted to the Board, and, if allowed to stand, might prejudice the company in other suits or controversies in relation to this dividend, and instructed their solicitors to ask leave of the court to withdraw said answer, in order that an answer, sanctioned [**6]  by a majority of the whole Board, may be hereafter filed, and for that purpose, to dismiss the pending motion to dissolve the injunction. In obedience to these resolutions, Mr. Latrobe, the solicitor of the company, on the next day, (24th of March 1857,) filed a petition asking leave to withdraw the answer, and to dismiss the motion to dissolve. The court ordered the leave to dismiss to be granted, the solicitors of the complainants being in court and making no objection, and, in pursuance of this leave, the motion to dissolve was dismissed.

At this stage of the cause, and on the same day, (24th of March 1857,) the present appellants, who are and were, on the 22nd of December 1856, the holders of 12,619 shares of the stock of the Rail Road Company, and therefore entitled to certificates of indebtedness under the extra dividend resolution of the 17th of December 1856, filed their petition, in which, after stating, their respective interests as such stockholders, they allege that the other stockholders are very numerous and dispersed, so that it would be impossible to make them all co-petitioners, and they, therefore, pray that this petition may be taken as filed for all persons [**7]  having concurrent interests in the dividend, who may desire to make themselves parties on just terms to be imposed by the court, and that all the previous proceedings and papers in the cause may be taken as part of this petition. The petition then states that since the commencement of the argument on the motion to dissolve, the petitioners have been informed that by reason of some proceedings of the Board of Directors of the Rail Road Company, called in special session, it was resolved, that the counsel of the company should withdraw the answer, the effect of which would be, if allowed, without some action at the instance and on behalf of the petitioners, that the motion to dissolve will cease to be argued, and the injunction continued indefinitely, to the prejudice of the petitioners and others in like interest, who are interested in said extra-dividend. It then states that the injunction should not have been granted, because no person or party was made defendant, who was or could be injuriously affected by it; that the dividend became on the day it was promised to be executed by the delivery of certificates of indebtedness, the property of the respective shareholders, and that the [**8]  Rail Road Corporation has no adversary interest to the granting of the injunction, but the only adversary interest is in the petitioners and others in like interest, or as assignees from other shareholders of said dividend; that the injunction grievously affects the petitioners and others in like interest, and yet has been granted to their injury, without their having the formal opportunity of being able to move for its dissolution by being defendants to the bill, or to call for an adequate bond to protect their rights; that they do not know whether they or others sufficient to make a substantial representation of the interest of shareholders, were left out, as defendants, through error or by design, to injure their interests, and to afford an opportunity to the complainants and defendants through their counsel and directory so to control the suit that it should injure the petitioners, without their having the power to approach in this cause, the justice and equity of the court for redress, but they prefer to suppose no such professional device was intended, and that the complainants' counsel supposed the interest of the petitioners are in law represented by the defendant, which the [**9]  petitioners deny; that if the dividend is legal the Railroad Corporation is the debtor of the petitioners and others in like interest, who have since the 12th of January last, demanded delivery of the certificates of indebtedness promised by the dividend-resolution, which they aver they have so demanded for themselves respectively, and the petitioners cannot understand how a debtor represents the interests of his creditors, and how an injunction can be granted and continued to keep in the debtor's hands the dues of the creditors with no power to the latter, who alone are affected by the injunction to move for its dissolution; that the petitioners are informed and believe the injunction was improvidently granted, and that when the attention of the court is called to its prejudicial operation on the petitioners and others in like interest, the court will order it to be at once dissolved, unless the complainants will make the petitioners defendants to the bill, so that they may be bound by the decree in the cause, and so that they may make such motion and take such other proceedings as will prevent the action of the complainants and defendants from unjustly acting on the petitioners'  [**10]  interests at once, with all the force for the time of a decree against them. The petition then states that eight members of the Board of Directors of the Railroad Company are appointable by the complainants, and that these eight, who are now members, all voted on the 23rd of March for the resolution to dismiss the motion to dissolve and to withdraw the answer, and have been chosen since the institution of this suit, and that three of the eight members, appointed by the complainants, who voted for the dividend, were not returned as directors by the complainants at the annual election in January last; that the answer had been filed before the 2nd of February, and sworn to by the President of the company, and was published in the newspapers of the city, and though regular meetings of the Board of Directors had occurred on the second Wednesday of February and March, no measures were adopted, and at the February meeting no measure proposed to withdraw the answer. The petition then asks that the answer be not allowed to be withdrawn, and that the petitioners be allowed to appear, be made defendants, and move for the dissolution of the injunction and at once proceed with its argument. Then [**11]  certain of the petitioners, who are named, who were directors when the dividend resolution was passed, claim in the petition that the bill charges on them personal fraud in ostensibly treating as a debt of the company what they knew had no existence as such, and that with this view the form of the dividend was adopted to defraud the complainants of their chartered right of appointing directors, and they claim the right to be made parties, that these allegations may be answered and disproved, and insist that the injunction shall be at once dissolved, unless the complainants will make the criminated directors, and among them the petitioners in question, parties to the bill as defendants. The petitioners then state that though they have many and important matters which they could allege and which should be properly alleged for the protection of their rights and characters, yet, as they can be entitled to them before the final hearing, without their answers being filed at present, yet the continuance of the injunction so injuriously affects their interests, that they are willing, on the answer of the defendants and on the testimony already taken in the cause, to become parties and move [**12]  for the dissolution of the injunction, and proceed at once on its argument, and they, therefore, pray the court to grant them the relief asked, or such other as their case justifies.

To this petition, the complainants (the Mayor and City Council of Baltimore) filed an answer in which they admit that the petitioners are stockholders as stated in their petition, and that the stockholders of the Railroad Company are very numerous, but they positively deny having given any instruction or direction to their counsel in respect to the party or parties to be made defendant or defendants in or by their bill, but that they have understood from their counsel and believe, and therefore aver that the Railroad Company was made the sole and only defendant by the bill, not through any design to injure and embarrass the interests of the shareholders, or to afford an opportunity to these respondents as complainants and to said company as defendant, to control said suit to the injury of the petitioners, or any other of the stockholders, as is alleged in the petition, but became their counsel after full consideration, were then and still are of opinion that the interests of all the stockholders of [**13]  said company are and may be substantially and legally represented and protected by the company as defendant in the suit, which opinion, they, by their counsel, are ready and willing to maintain to be good and valid in law. They deny that there has been or is any collusion between them and the directors of the company, or any of them in regard to any proceedings in this suit, or to prevent it from being decided after a full and fair investigation of its merits. They also most positively deny, for themselves and their counsel, that in framing and preparing the bill, they had any purpose or intention by any averment therein, to impute to the petitioners, or to any of them, any moral delinquency or actual fraud, or in any manner to cast reproach upon their characters or injure their reputation in society; and they further state that they are informed and believe, that their counsel have repeatedly, both publicly and privately, explicitly disavowed any such intention on their part; wherefore they insist, that upon the ground of any averment in the bill on which the petitioners may have put a different construction, they are not entitled to be made parties to this suit, more especially for [**14]  the purpose of controlling either of the present parties to the cause in their conduct and management thereof, as is set forth in the petition. Wherefore, these respondents insist that the petitioners have no right to interfere, or to be made defendants in this cause, or in any manner to interpose or interfere with the proceedings therein.

Upon this petition and answer, and after full argument, the court (KREBS, J.) delivered an opinion, in which, after stating the facts of the case, as above set forth, he says:

"These petitioners insist upon their right to appear in this case, to be made parties defendants and to move for a dissolution of the injunction; and, necessarily, to their right to file an answer to the bill, inasmuch as, according to our practice, no defendant can move to dissolve an injunction until he has filed his answer; or, in other words, upon the right to come in before the motion to dissolve is made, and be made full defendants. Now, I have not been convinced by the arguments and authorities relied upon by the solicitors of the petitioners, that they are entitled to this right; assuming, even, in their favor, that this dividend is lawfully declared; that [**15]  they are entitled to it; that they are interested in this cause, and ought to have been parties to the bill, and are not represented on the record. They claim thus to be made parties defendants, upon their own demand, by petition, because they are interested in the subject-matter, and objects and purposes of the suit, and ought to have been introduced into the bill as parties, before it was filed. They say, in effect: 1st. That the bill is defective for want of parties. 2nd. That the court should require the complainants to amend it, by making them parties.

"Can these petitioners, in this mode, object that this bill is defective for the reason alleged, and thus drive the complainants to an amendment? For that is the extent to which their pretensions go. If they have such right, it might be reasonably presumed that it could be readily shown by reference to the treatises upon the Practice and Pleadings in Courts of Equity, where the rules, long since settled, in regard to the mode of introducing into a cause parties improperly omitted, are clearly defined. I have carefully examined these treatises, and do not find that any one of them, in pointing out the several modes of taking [**16]  an objection for want of parties, mentions that the omitted party, himself, has a right to appear and make the objection that he has not been joined in the suit, and force the complainant to amend. Mr. Calvert, in his treatise on Parties to Suits in Equity, which, in Story on Pleading, is said to "contain the fullest and most systematic review of the principles which regulate the subject, as well as the most complete collection of the authorities," mentions but four modes of taking an objection for want of parties, viz: by demurrer on record; by answer; by plea, and by demurrer at bar. These are modes of objecting that can be adopted by the defendant alone, and in no part of the chapter in which he treats of the various modes of making this objection, does he say or intimate, or furnish or refer to, any authority for maintaining that the party who has been improperly omitted as a defendant, can make the objection of want of parties, and require that he should be added by way of amendment. Daniell, in his Chancery Practice, Vol. 1, page 333, sec. 3, entitled, "Of Objections for Want of Parties," enumerates the four modes above mentioned, as those only by which a person can make the [**17]  objection, and gives no opinion or authority for insisting that the party omitted can object. But these authors mention, as do some others, as will appear from subsequent references, that the court at the hearing may, itself, "state the objection." Story in his Equity Pleading, section 75, states, very distinctly, the mode of remedying the defect of want of necessary parties: "If the proper parties are not made," he says, "the defendant may demur to the bill, or take the objection by way of plea, or answer, or when the cause comes on to a hearing; or the court, itself, may state the objection, and refuse to proceed to make a decree." In 1 Bland, 292, the chancellor designates the same modes of taking the objection, and no others; and, in Shields vs. Barrow, 17 How., 145, the Supreme Court of the United States state the practice, in this particular, in such terms as to exclude any such claim of a right to intervene, as is set up by these petitioners; they say: "If the plaintiff desires to make new parties, he amends his bill and makes them. If the interest of the defendant requires their presence, he takes the objection of non-joinder, and the complainant is forced to amend, or his [**18]  bill is dismissed. If, at the hearing, the court finds that an indispensable party is not on the record, it refuses to proceed. These remedies cover the whole subject." After a careful examination of the several elementary authors on this subject, I have become fully assured, that not one of them mentions, or recognizes, any such rule or practice as would justify this court in granting the prayer of these petitioners, and permitting them, upon their own demand, to be made defendants in this cause, by amendment of the proceedings. It is true that they all refer to "some cases in which the court has allowed persons, who have not been made parties, to take some part in the proceedings," (17 Law Lib., Calvert on Parties, 35,) and their authority for saying that the court sometimes grants this permission, rests upon cases which I shall hereafter refer to; and it will be found that these cases, with a few exceptions, belong to a class in which, after a decree, or a reference to a master, persons who had not been made parties to the cause, but who were interested in the estate affected by the decree, or in regard to which, or to the parties interested therein, the master was charged to enquire [**19]  and report, were permitted to come in, by petition, and urge their claims before him, a class of cases differing altogether from this. To this class of cases, Story evidently alludes in his Equity Pleading, section 208, a reference much relied on by the solicitors for the petitioners, where he says that, "a court of equity will, sometimes, as a matter of indulgence, allow persons not parties, to bring forward their claims, by petition, in order to have their interests ascertained and their rights protected," because he relies for this position on the case of Drew vs. Harman, alone, 5 Price, 319, 324, in which cestui que trusts were simply let in, on their petition, to participate in a fund in court. The only case mentioned by Calvert in his entire treatise, not belonging to this class, is the case in Mosely, (which I will hereafter consider,) and the conclusion to which he comes, after referring to them all, is, that, "generally speaking, a stranger can take no part at all, and cannot even be heard by counsel in a claim of interest in the suit, except by the consent of all the parties;" Calvert, 58. It appears to me that no impartial person can review the elementary authors upon this [**20]  branch of equity practice, without being satisfied that they are altogether adverse to any such right of intervention as these petitioners claim; and that, if allowed, it would introduce a rule of practice never yet adopted in our system of equity pleadings.

"I will now pass to the adjudicated cases that have been cited by the solicitors for the petitioners, and ascertain how far they counterbalance the weight of authority in the elementary authors. An analysis of these cases shows that but three of them apply to this particular point of practice, viz., the case in Mosely, cited in the argument as Nugent vs. Smyth; Morriss vs. Barclay, 2 J. J. Marshall, 377; and Harrison vs. Morton, 4 Hen. & Mun., 483. The solicitors who opposed this petition, have endeavored to show that the case in Mosely is not entitled to much respect, because he was, as they allege, a reporter of little or no reputation. Another, and more effectual, mode of weakening the authority of a case, is to show that the case, itself, has not been regarded by authors and courts as entitled to much consideration. Eden, in his work on Injunctions, speaks of this as a strange case, decided upon the ground of collusion [**21]  between Nugent and Smyth. And in the case of Ball vs. Tunnard, 6 Madd., 275, where it was cited for the very purpose for which it is relied on here, viz., to show that persons interested in a cause, and not parties, should be allowed to appear and take part in the proceedings, Vice-Chancellor Leach says, these persons, "being no parties, cannot be heard, the case cited was under very special circumstances, and has no application here." And, when properly viewed, it appears to my mind to have as little application to the case made by these petitioners. It should be observed that this case is reported, not as it has been cited, as Nugent vs. Smyth, but as a "a motion in the case of Nugent vs. Smyth, and Creagh vs. Nugent & Smyth."

"There were two cases, as the reported proceedings show; both before the master of the rolls at the same time. In one, Nugent had filed a bill against Smith and obtained an injunction to prevent him from enforcing a judgment which he had obtained against him, (Nugent,) upon his bond, upon the ground that he had a larger claim against Smyth than the amount of the bond. The bond of Nugent had, in fact, been assigned to Creagh for value, by Smyth, before [**22]  he obtained the judgment; of which fact Nugent had notice. Creagh discovering that Smyth was willing that the injunction should continue, so that his debt to Nugent should be thus satisfied, filed a bill in the other case against Nugent and Smyth, "having," as the master of the rolls says, "no other means to dissolve this injunction, kept up by the default of his trustee." The complaint in this case of Creagh, who is supposed to occupy the same position in reference to Smyth that these petitioners do in reference to the defendants, the Railroad Company, was, that Smyth neglected to put in his answer, and to move to dissolve the injunction; and that he did so in consequence of collusion between him and Nugent; all this was charged in Creagh's bill, which he brought for the purpose of getting the injunction dissolved, having as the court says "no other means" of accomplishing this object. The report shows that both cases were before the master of the rolls at the same time; that in delivering his opinion, he commented on the proceedings in both; that he assumed, that "Smyth was in collusion with Nugent;" and says that "the difficulty in the case arises from Smyth and Creagh being foreigners,  [**23]  and therefore if Nugent should pay the money, and afterwards be relieved, on the hearing of the cause, the court could not enforce a re-payment." This is stated, by the court, as the only difficulty; there appears to have been none made in regard to the facts stated in Creagh's bill, not even the collusion charged: or to his right, he not being a party to Nugent's bill, to move to dissolve the injunction in that case. This difficulty being removed as the court says, "by the offer the counsel for Mr. Creagh has made, that he will give security to appear to the original bill if Mr. Nugent will make him a party, and to abide the order of the court at the hearing," the injunction was dissolved on those terms. It cannot be seriously contended that this case, if the above view of it is correct, should have much weight with this court, as an authority, for doing what these petitioners ask. They ask, upon the simple ground that they are interested and should have been made parties originally, to be made defendants, and to be allowed to dissolve the injunction. Creagh asked leave to be made a party and to move to dissolve, after having filed a bill against both Nugent and Smyth, charging them [**24]  with collusion, and having brought that bill to a hearing, and shown collusion, which in the opinion of the court was the only mode by which he, not being a party to the case in which the injunction was issued, could get rid of the injunction; and it appears to me that this authority proves nothing more, than that under such circumstances, a person, affected by an injunction, issued in a cause to which he was not a party, may move to dissolve it, and of course it does not apply to the case at bar, in which the same circumstances do not exist. The case of Morriss vs. Barclay, on which the solicitors for the petitioners have relied, has very little application here. It is supposed to favour their position, because the court there has said, "Norris was no party to the suit, it was his privilege in case his interests were likely to be affected by it, to have made himself a party by petition in the nature of a bill of interpleader." Such a proceeding would have been very different from the course adopted by these petitioners. A bill of interpleader filed by him, would have made the other parties, plaintiffs and defendants in the original suit, defendants in his bill, he being in the attitude [**25]  of complainant, and however he might have been regarded as a party to the original suit, it would not have been simply as defendant, introduced by the complainant, by way of amendment to his bill, which is what these petitioners claim here. The case of Harrison vs. Morton, 4 Hen. & Mun., decided in Virginia in the Superior court of Chancery for the Richmond district, corresponds more closely in its circumstances with this case. There the court decided, that it would dissolve an injunction obtained by a complainant, unless he amended his bill, and made a person a party who was interested, but who had not been made a party, defendant. The motion of the individual applying to be made defendant, was opposed by "counsel for the defendant" only. For aught that appears, the complainant was willing to amend his bill: according to the report he immediately moved to amend it. When the complainant is willing to amend his bill, and thus let in a party, who deems it his interest to become a defendant, the court would not much if at all regard the opposition of the defendant. In the case at bar the application is resolutely resisted by the complainant. This authority, in my opinion, is by no means [**26]  entitled to the weight that has been claimed for it. I have been referred since the hearing, with the consent of the solicitors of the respective parties, to a newspaper report of recent proceedings in the case of The Congress Rubber Co., vs. Handy & Harris, in which Judge Grier granted the prayer of certain petitioners not previously parties, to appear and defend; but it does not appear that there was an objection made by complainant to the application, or any argument or opposition against it, but the complainants immediately made the amendment; they may have assented to the application, and of course the court would not have hesitated to allow the amendment. These authorities are all that the uncommon industry, and research of the solicitors of the petitioners have been able to produce upon this point, and whatever effect may be claimed for them, I consider it more than counterbalanced by the decision in the case of Ball vs. Tunnard, already referred to, and by the action of the late Chancellor Johnson in the case of McClellan vs. Bedford, cited by the solicitors for the complainants. There certain persons had filed a petition asking to be made parties to the proceedings in that [**27]  case, and the Chancellor says, "their petition cannot be entertained. They cannot in this way become parties to the bill." I think I do not speak from any over-estimate of the ability and accuracy of the late Chancellor of this State, when I say that, it would require a greater array of authorities than has been produced in this case to satisfy me, that he had erred on a question of equity law or practice. I have found nothing in this case, and authorities cited, to lead me to believe that I am not bound to follow the practice in regard to petitions of this character, that he has indicated as correct and proper, nor have I, after a great deal of anxious thought and research upon this subject, been able to find in the elementary writers, or reported cases, anything to prove that courts of equity, notwithstanding their anxiety to have all persons interested in the cause before them, when they are called upon to decree, have ever devised any mode, or adopted any rule, under which the omitted parties can come in, upon their own application, as parties defendants. It has been attempted to distinguish cases of bills for injunction from ordinary bills for relief, in regard to the application [**28]  of the rule that would prevent any persons but actual parties from intervening in the proceedings. But when it is considered that to intervene is necessarily to become a party to the cause, and that a person cannot become a party but by objecting that there is a want of parties because he has not been joined, it will be found that, according to the settled practice, it is quite as difficult to introduce a new party into an injunction cause as into a cause of any other character. The opinion of the Court of Appeals of this State, in the case of Lucas vs. McBlair, 12 G. & J., 16, shows that the objection that a necessary party has not been joined as defendant, cannot be urged upon the motion to dissolve, or as a reason why the injunction should be dissolved. The court says, "The objection that the State ought to have been a party to the proceedings is of no avail at the present stage of the suit. In other words, it is no ground upon which to claim a dissolution of the injunction:" and it says that "the object which the court has in view in requiring necessary parties before it, may be attained by having them brought before it at any time before the final decree is passed in the cause.  [**29]  And if all such persons are not made parties, the court, many times upon hearing, will not for want of them proceed to a decree." There the defendant, whose right to object for want of parties is unquestioned, was insisting that the injunction should be dissolved unless the State, an omitted party, should be joined. The court denied the right so to insist. Here, however, the omitted parties themselves are making the objection, and demanding a dissolution of the injunction unless they are admitted, and made defendants in the cause. The court says that they have no such right. If the defendant in this case, itself, were making the objection, it could not be heard. The rule that refuses to persons not parties, claiming to be interested, the privilege of coming in by petition during the progress of the cause, to set up their interest, and show their right to be admitted, when duly considered will be found to rest on very satisfactory reasons of convenience and expediency. If such a privilege were allowed, courts of equity would be greatly annoyed, and their proceedings very much embarrassed by such applications. They have, therefore, deemed it better that all questions, as to who of the [**30]  various parties that ought to have been joined as defendants shall be made parties by amendment, should be reserved to be discussed once for all, upon the demurrer, or plea, or answer of the defendant, or at the hearing, believing that the rights and interests of absent parties are perfectly secure, under the safeguard of those liberal and benign rules, which require the court itself, if others have neglected it, to state the objection that necessary parties are omitted, and refuse to make a decree; which declare, that the interest of no man shall be affected by a decree, passed in a cause in which he has not been a party, and been heard in defence of his rights; and that if a decree has been passed affecting the interest of a necessary party who has not been before the court and heard in the cause, it shall for that reason, if for no other, be reserved on a rehearing, or on an appeal taken even by the party who had been improperly omitted; or if not reserved, yet it will bind none but the parties to the suit, or those claiming under them; so that all the evils of fruitless or inadequate litigation, may sometimes be visited on the successful party, in the original suit, by leaving [**31]  his title still open to future question and controversy. In addition to the allegations in the petition and the prayer therein in behalf of all the petitioning stockholders, there are certain allegations in behalf of a portion of them, setting forth that the bill contains charges of fraud against them made in such manner as to stigmatize and criminate them improperly, and complaining in the character of directors; and praying that "the injunction shall be at once dissolved, unless the complainant will make the criminated directors, and among them the last named petitioners, parties to the bill as defendants." The complaint that these petitioners make, is what is properly termed, an objection that the bill is scandalous in regard to these directors who are not parties. Assuming that it may be so regarded, which I by no means decide, I could not grant this prayer. The courts have never permitted a stranger to come in as a party defendant in a cause, because the bill may contain something that he may regard as scandalous in respect to him, the most that it has ever been asked to do in such a case is, to refer the bill for scandal and have the offensive parts stricken out, and it is by [**32]  no means settled in practice that it will do this. The inclination of the court in such cases, is to leave the complaining party to his action for libel. I must therefore pass an order refusing the prayer of these petitioners."

An order was accordingly passed, on the 25th of April 1857, refusing to grant the prayer of the petitioners, or of any portion of them, and dismissing the petition with costs, from which the petitioners appealed.

In this court, a motion was made by the appellees (the Mayor and City Council of Baltimore) to dismiss the appeal: 1st. Because the order dismissing the petition was not a final order in the nature of a final decree, but interlocutory only. 2nd. Because the right of the court to grant or to refuse the prayer of the petition was discretionary.  

DISPOSITION:
Order affirmed by a divided court.  

HEADNOTES:

The Baltimore and Ohio Rail Road Company passed a resolution declaring an extra dividend, payable on a certain day in certificates of indebtedness, bearing interest and convertible, after a certain date, into stock. Upon a bill filed by the Mayor & City Council of Baltimore, as stockholders, against the company, an injunction was granted restraining the issuing of this dividend. To this bill the company filed an answer, and moved for a dissolution of the injunction, but whilst the argument on this motion was progressing, the company directed their solicitor to ask leave to withdraw their answer and to dismiss the motion, and the motion was accordingly dismissed. A petition was then filed by certain other stockholders of the company, alleging that their rights and interests were injuriously affected by the continuance of the injunction, and asking leave to appear and be made defendants, and to move for its dissolution. This was refused and their petition dismissed, and, on appeal, the order so dismissing their petition was affirmed by a divided court, but, HELD:

That before final decree, the petitioners ought to be heard as parties, and that if they be not, and are shown to be prejudiced because of the refusal, on appeal, after final decree, the decree will be held to be of no avail as against them, and will be reversed or the cause remanded, under the Act of 1832, ch. 302, that the proper parties may be made.

Where the court is equally divided in opinion on a motion to dismiss an appeal, and also on the propriety of the order appealed from, the order must be affirmed.  

COUNSEL:
J. M. Campbell and Wm. H. Norris for the appellants.

1st. As to the motion to dismiss. The ground upon which this motion is attempted to be sustained is, that the order appealed from is interlocutory and not final, and that the question of parties is a matter within the discretion of the court, and therefore not a subject of appeal. But this cannot be considered [**33]  an interlocutory order, or decree, in any sense. Such an order or decree is one preparatory to a final decree, and is always passed against or with the parties in court. An interlocutory order against an absent party is an anomaly in Chancery practice not to be realized. 2 Daniell, Ch. Pr., 1192, 1183. 1 Barb., Ch. Pr., 326. 3 Md. Rep., 555, Ware, et al., vs. Richardson. An order or decree, finally settling any disputed right or interest of the parties, would be a final decree and as such will warrant an appeal. 1 G. & J., 309, 310, Hagthorp vs. Hook. Is not this order, in effect, final upon the rights of these appellants to intervene and be made parties? It shuts them out as effectually as could be done. It needs not the aid of any future decree or order upon the subject--it shuts them out forever. The point finally decided against these appellants, is, that they have no right to come in and be made parties to the case. Whenever parties come into a cause they do so by virtue of some right, and this order decides, finally and effectually, that the appellants have no such right, and if they ever be admitted it will be only ex gratia by the court and not because of any right in them.  [**34]  If then they have a right to intervene, this order is a final adjudication of that question, and is therefore properly, an order from which an appeal will lie.

2nd. As to the right to intervene. On this point the appellants insist that their petition was improperly dismissed, because:

1st. The property interest in a declared dividend, and the charge of fraud in the bill against some of the petitioners, are not represented by the corporation defendant, and yet the granting of the injunction produces that immediate injury which entitles them to be parties to arrest its effects. The fact that fraud is charged against some of these appellants, of itself entitles them to come in and be made parties defendant. They must be heard to repel the charge. Where fraud is charged in the bill, as a ground of relief, it must be proved, and the complainant will not be entitled to a decree by proving some one or more of the facts independent of the fraud, but which might of themselves create a case under a distinct head of equity. The bill here charges fraud in direct and explicit terms, as a ground of relief, and in such a case a material allegation of this kind cannot be stricken out for [**35]  scandal. 1 Daniell's Ch. Pr., 402, 403. Calvert on Parties, 24, 25, 26. 7 Eng. Law & Eq. Rep., 254, Price vs. Berrington. 15 How., 56, Eyre, et al., vs. Potter, et al. 14 Ves., 245, Dummer vs. The Corporation of Chippenham. 6 G. & J., 94, Campbell & Voss vs. Poultney, Ellicott & Co., et al. 2 Phillips, 225, Ferraby vs. Hobson. Ibid., 310, Glascott vs. Lang. 2 Rhode Island Rep., 129, Mount Vernon Bank vs. Stone. 5 Beav., 82, Williams vs. Douglass. But, especially upon the other ground, viz., that these petitioners, after the dividend was declared had a property interest therein, which was not and could not be represented by the corporation defendant, we insist that this petition was improperly dismissed. For this position and to show that these appellants have a right to be made parties to this bill, we refer to 6 Eng. Railway & Canal Cases, 506, Carlisle vs. South-Eastern Railway Co. 2 Bing., 393, Davis vs. Bank of England. 10 Adol. & Ellis, 437, Coles vs. The Bank of England. 1 Pet., 309, Mechanics' Bank vs. Seton. 18 How., 343, Dodge vs Woolsey. 1 Daniell's, Ch. Pr., 292. Story's Eq. Pl., secs., 72, 75, 76, (c), 94, 95, 96, note 2, 103, note 2, 132, note 1, 135, (b), note 1, 137,  [**36]  138, 207, (a), note 1. Angell & Ames on Corp., secs., 151, 312, 313, 556, 560. Calvert on Parties, 1, 5, 11, 12, 15, 19, 25, 29, 32, 38 to 48. 4 Johns. Ch. Rep., 25, Fellows vs. Fellows. 3 Johns. Cases, 311, Hickock vs. Scribner. These authorities show that in administering remedies for injuries and wrongs, the commanding rule in equity is the obtention of justice; to this all other rules yield, and this court adapts its remedies to the nature of the grievance, and so as to guard the rights of all parties from injury and disturbance. Whilst some of its rules are for mere judicial convenience, such as the court is bound to apply establish rights in those in whose favor they operate. The controversy in this case is between two classes of stockholders in this corporation, having diverse and opposing rights. The bill of the complainants asks that the dividend-resolution be annulled at the final hearing, and that in the meantime an injunction be granted to stop payment of these dividends to any stockholder until this suit is finally decided. On whom then does this injunction operate? Clearly upon these petitioners. The corporation which it is said represents them is in this respect the [**37]  debtor, and how can a debtor represent his creditor? The very scope and object of the bill is to prevent other stockholders from getting their dividends. The corporation at first stood out, filed its answer, and with a view of getting rid of this injunction, made the motion to dissolve. This was all that these petitioners wanted. But when the corporation stopped the proceedings on this motion, and changed their views, then, as the injunction operates injuriously upon the rights of these petitioners, they have the right to come in and move for its dissolution, and they could not make this motion without being allowed to come into the case as parties defendants.

2nd. But, assuming that the defendant does represent the owners of such property interests, in these dividends, and the parties so charged with fraud, the representation has been unfaithful or collusive, and the parties represented have a right to intervene. Calvert on Parties, 11, 12, 33, 35. Story's Eq. Pl., sec. 76, (c). Angell & Ames on Corp., sec. 112.

3rd. The reason why strangers are prohibited from intervening is, that they are neither bound by the decree nor affected by the proceedings in that decree which [**38]  the law notices.

3rd. As to the remedy. On this point we insist that the remedy adopted by the petitioners was the only one suited to their case, is sanctioned by precedent, and should be sanctioned if there had been no precedent, because without inconvenience to any parties, it promotes justice in the surest, simplest, cheapest form. The injunction is operating against these petitioners every moment of its continuance, and to say that they must wait till final decree, and then come in by bill, would be a denial of justice--they can come in by petition at once and get rid of that injunction. 1 Barb. Ch. Pr., 566, 578, 579. Story's Eq. Pl., sec. 75, 96, note 2, 137, 138, 208. 1 Daniell's Ch. Pr., 305, 306. 3 Do., 1781, and note 1787, 1788. Calvert on Parties, 34, 35. The case of Creagh vs. Nugent & Smyth, in Mosely, 355, is an express authority sanctioning such a proceeding as this. See also 12 Simon, 189, Jones vs. Roberts. Eden on Inj., 116. 17 How., 145, Shields vs. Barrow. 15 How., 244, Northern Indiana Rail Road Co. vs. Michigan Central Rail Road Co. 4 Hen. & Munf., 483, Harrison vs. Morton. 5 Price, 319, Drew vs. Harman. 2 J. J. Marshall, 377, Morriss vs. Barclay. 13 Grattan,  [**39]  38, Tichenor vs. Allen, et al. 22 Barb., 597, Hubbard vs. Eames. 24 Barb., 248, Benson vs. Mayor &c., of Albany. 9 G. & J., 193, Hays vs. Miles. 4 G. & J., 292, Duvall vs. Farmers Bank of Maryland. 2 H. & G., 449, Maccubbin vs. Cromwell. 4 Md. Rep., 529, Dent vs. Maddox. 26 Barb., 262, Lowber vs. Mayor &c., of New York.

G. L. Dulany and J. Meredith for the appellees:

1st. As to the motion to dismiss. The Act of 1721, ch. 14, sec. 4, authorized an appeal from any decree of the Chancery court. The Act of 1785. ch. 72, sec. 27, provided that appeals should be entered within nine months, from decisions, orders and decrees, in cases where appeals properly lie. The Act of 1818, ch. 193, sec. 1, confined the right of appeal to decretal orders, and then came the question, what is a decretal order, which would authorize an appeal? In Thompson vs. M'Kim, 6 H. & J., 328, it was decided that an appeal would properly lie "where there is a decretal order passed upon the issue in a cause, in relation to the subject-matter in controversy, which decides and settles the question of right between the parties," and, in Snowden vs. Dorsey, 6 H. & J., 115, it was held that an appeal would not [**40]  lie from a mere interlocutory order, by which nothing is finally settled between the parties, which is only preparatory to a final decree, and is liable to be reviewed by the chancellor at any time. From this it appears that a decretal order meant an order in the nature of a final decree, and the same definition is given to it in 2 Daniell's Ch. Pr., 1192, 1198. The Act of 1830, ch. 185, declares that no appeal shall lie from any decree or order of the Chancery court, unless it be a final decree, or order in the nature of a final decree. Under this Act, an order authorizing an appeal, must finally settle some right of the litigating parties; must be an order pleadable in bar to another suit. 4 Gill, 38, Wheeler vs. Stone. 1 G. & J., 310, Hagthorp vs. Hook. By these Acts of Assembly and decisions, it is settled that an appeal will not lie from an interlocutory order. What, then, is such an order? It is an order made in the progress of the cause, either before or after the hearing, which is not final, but leaves the matter open for a future hearing. 2 Daniell Ch. Pr., 1192. Can there be a doubt, in view of these authorities, that the order from which this appeal is taken, is but interlocutory?  [**41]  What right between the parties does it settle? The controversy in the case is as to the legality of the extra dividend resolution. Does this order touch that question? It was not even final in regard to the application itself, for though the petition was dismissed, the question of parties was still open to the further consideration of the court below. In the further progress of the cause, the judge below may reconsider this order and admit the appellants as parties. The company may demur for want of parties, or amend, and the judge himself, at the final hearing of the cause, may take objection for want of parties, and refuse to decree until the proper parties are made. 12 G. & J., 14 to 16, Lucas vs. McBlair. To show that an appeal will not lie from this order, we refer, in addition, to the cases already cited, to 12 G. & J., 275, Clagett vs. Crawford; 3 Gill, 388, State, use of Boone vs. Burch; 3 Md. Rep., 555, Ware vs. Richardson; 7 G. & J., 109, Boteler & Belt, vs. State use of Chew & Co.; 7 Gill, 364, Welch vs. Davis; 11 Md. Rep., 388, Heath, et al., vs. Irelan; 2 Md. Rep., 271, Mitchell vs. Smith. But, again, we insist that the question of parties is a matter of discretion in [**42]  the court below, and from the exercise of that discretion no appeal will lie. For this we refer to Calvert on Parties, 19; 10 Wheat, 166, 167, Elmendorf vs. Taylor; 5 H. & J., 174, Anderson vs. The State; 6 H. & J., 151, Hawkins vs. Jackson; 2 H. & G., 135, Dorsey vs. Smith; 3 G. & J., 434, Roberts vs. Salisbury; 9 G. & J., 164, Sanderson vs. Alcock; S. G. & J., 214, Marshall vs. Mayor & C. C. of Balto.; 1 Md. Rep., 252, Thomas vs. Doub; 6 Md. Rep., 506, Ellicott vs. Eustace; 10 Md. Rep., 46, Warren vs. Twilley.

But if the motion to dismiss shall not prevail, we then insist:

1st. That the complainants and the defendants upon the record, in the cause in which the petition was filed, and on which the order appealed from was passed, were and are the only proper parties. Story's Eq. Pl., secs. 214, 271 to 276. 2 G. & J., 29, Gibbs vs. Clagett, et al. Calvert on Parties, 7, 8, 14, 20, 48. 18 How., 331, Dodge vs. Woolsey. 3 Peerre Wms., 311, note, (J.) 7 Hare, 114, Bagshaw vs. Eastern Union Railway Co. 15 Ves., 159, Le Texier vs. The Margravine of Anspach. 2 Madd. Ch. Pr., 143. 1 Ves. & Bea., 550, Whitworth vs. Davis. 6 Wheat, 559, Kerr vs. Watts. 2 Mason, 197, West vs. Randall.  [**43]  1 Gallison, 383, Van Reimsdyk vs. Kane, et al. 3 Madd. Ch. Rep., 10. 1 Pet., 306, Mechanics Bank vs. Seton. 2 Green's Ch. Rep., 120, Vanderpool vs. Davenport's Exc'r. 12 Md. Rep., 443, Wright vs. Santa Clara Mining Association. 1 Turner & Russell, 297, Jones vs. Garcia Del Rio.

2nd. That according to the established practice of courts of equity, no person, not made a party to the cause by bill of complaint, can be, on his own motion or application, admitted as a party, except by the consent of both complainant and defendant, and this rule of practice is especially applicable to cases of injunction. 1 Russell & Mylne, 69, Bozon vs. Bolland. 7 Simons, 290, Att'y General vs. Pearson, et al. 1 Hare, 413, Dyson vs. Morris. 6 Eng. Railway Cases, 517, 518. 6 Madd. Ch. Rep., 275, Ball vs. Tunnard. 17 How., 145, Shields vs. Barrow. 1 Bland, 292, Owings' Case. Calvert on Parties, 90, 113. Story's Eq. Pl., secs. 75, 77. 12 G. & J., 1, Lucas vs. McBlair. See, also, the decision of Chancellor Johnson in the case of McClellan & wife vs. Bedford, referred to in the opinion of the court below. 1 Daniell's Ch. Pr., 339; 16 Ves., 356, Innes vs. Jackson. The only decision to the contrary, is that [**44]  cited from Mosely, which has been pronounced a book of but little or no authority, in 5 Burr., 2629, and in 5 Term. Rep., 560.

3rd. That the petitioners have no interest in the object of the pending suit, except as members of the corporation defendant. That if they have any interest as shareholders, it is a consequential interest which gives them no right to intervene as parties. That the interest of the petitioners, of whatever nature they may be, are sufficiently and substantially represented by the defendants on the record; and if not so represented they cannot be prejudiced by any decree that may be made in the cause, not being bound by it, but are at liberty to assert and protect their rights by a supplemental bill, in the nature of a bill of review, or by an original bill for relief. In support of these positions we refer to Mitford's Pl., 196, 397; Calvert on Parties, in 17 Law Lib., 14, 33, 34, 35; 7 Eng. Railway Cases, 932; 2 Johns. Ch. Rep., 197; Van Vechten vs. Terry; 11 Ves., 420, Adair vs. New River Co.; 2 Atk., 145, Vernon vs. Blackerby; 2 Sch. & Lef., 210, Devonsher vs. Newenham; 3 Mason, 319, Wood, et al., vs. Dummer, et al.; 2 Swans., 291, Meux vs. Maltby; 7 Hare,  [**45]  114; 8 B. Monroe, 340, Singleton vs. Singleton; Story's Eq. Pl., secs. 94, 99, 140, 208, 214, 247; 2 Sim. & Stu., 91, Weld vs. Bonham.

4th. That no fraud, moral or legal, is charged by the bill against the stockholders of the railroad company, and so far as the directors are concerned, the answer of the city to the petition of the appellants, denies the charge of fraud, as alleged in the petition. But, even if the bill could be construed to allege fraud against the stockholders or any of them, such allegation would not entitle them, or any of them, to become parties to the cause, for the purpose of defence or vindication. 4 Madd. Ch. Rep., 252.

5th. That there is no charge in the petition, nor any proof in the proceedings, of collusion between the complainants and defendants, as against the petitioners or the stockholders of the company. But that if both charge and proof existed in fact, the remedy of the petitioners is by a bill of review, or original bill for relief, and not by becoming or being made parties in the original cause. Story's Eq. Pl., sec. 426.  

JUDGES:
The cause was argued before LE GRAND, C. J., ECCLESTON and BARTOL, J., and subsequently a re-argument was ordered [**46]  and had before a full court, LE GRAND, C. J., ECCLESTON, TUCK and BARTOL, J.  

OPINIONBY:
TUCK; LE GRAND 

OPINION:

 [*503]  TUCK, J.--The members of the court being equally divided in opinion on the motion to dismiss the appeal, and also on the propriety of the order appealed from, it must be affirmed.  Hatton vs. Weems, 12 G. & J. 83.

 [*504]  Under such circumstances it is not usual to file opinions, but, in view of the public and private interests involved, and the importance of having the asserted power of the railroad company to declare dividends of this kind, examined and passed upon, in a cause which, by its proceedings, shall embrace all persons interested in having that question authoritatively determined; and supposing that the progress of the cause may be facilitated, I have felt myself warranted in expressing my opinion on the question of parties, which has been fully argued, and which, possibly, may come before us again, that being the only point now before us for review.
I have carefully examined the cases and books of practice and pleading, referred to in argument, and have come to the conclusion that the opinion of the court below correctly states the [**47]  manner of making new parties in equity, and being of opinion that this is not a case where, in the absence of precedents, one should be made by granting the prayer of the petitioners, the order appealed from should be affirmed. The suggestions as to inconvenience, and probable loss, resulting from the circuity of proceeding, that the order may occasion, if it should appear, ultimately, that the appellants are entitled to receive the dividends they claim, are entitled to great consideration, and if I felt authorized to yield my assent to such arguments, I have every disposition to do so; but the same may be said in many other cases. Indeed, in most, there might be devised a short, easy and expeditious method of arriving at judicial conclusions, and much loss prevented by avoiding the delays incident to proceedings as now conducted, but experience has taught that it is safer, looking to the ends of justice and orderly procedure in our courts, to adhere to the practice and forms which have obtained from the earliest times. Otherwise, and this, I am admonished, might be the result here if the prayer were granted, embarrassment and confusion may be the consequence. Rules of practice are [**48]  a part of the law governing all judicial tribunals. When parties sue, they form their pleadings and conduct their causes with reference to such principles, and have a right to require that they shall be observed on the opposite side. There may be cases 

 [*505]  in which they should be relaxed or departed from. Some such have been cited, but they are exceptions to the general practice, where no other remedy was open to the parties. The allegation of fraud and collusion in the petition having been denied, I treat the question as if it had not been made.
But, while I agree that the appellants had no right to be made parties in the manner proposed, and that, therefore, there was no error in dismissing their petition, I am of opinion that no decree can properly pass adversely to the alleged rights of stockholders in the predicament of the appellants; that is, of such as claim the dividends, unless they, or a sufficient number of them to represent that interest, are made parties. This I consider a plain proposition. The corporation does not represent the appellants any more than it does the complainants. The President and Directors bind the members, when acting within the charter powers;  [**49]  if they go beyond, the members may enjoin them, and the bill here is framed on the supposition that the dividends are not warranted by the charter. If some insist that they are within the charter, shall they not be heard in like manner? No one will deny that the appellants might have filed a bill claiming payment of the dividends, or that the company might have been compelled, by decree, to issue certificates of debt according to the order declaring the dividends, if the court had found it to have been properly made. It is not merely a controversy between these complainants and the company, but between the complainants and all stockholders claiming the dividends, the company being the holder of the common funds of all. As among the corporators, it does not represent all of them, when they have opposite views of the company's powers, one set denying and the other affirming that the act in question has been performed in the exercise of corporate functions, and claiming the benefits and fruits thereof.
It is the practice, where the persons in interest are numerous, to implead some as the representatives of all in the same interest, and thereby bind them all; if there be diverse interests [**50]  and claims, all should be represented. If complainants 

 [*506]  choose to proceed against some, omitting others who have a different interest, they may do so, but at the peril of obtaining a decree that will be of no effect as to those who are not parties, or, if the want of proper parties be disclosed at the trial, of having their bill dismissed, or the cause laid over on that account. In such a case, if a final decree be passed, and the want of proper parties appeared on the record, it would be the duty of this court, on an appeal from such decree, to reverse it or remand the cause, under the Act of 1832, ch. 302, sec. 6. If this record were before us now on such an appeal, I could not hesitate to say that, according to that Act of Assembly, it should be remanded for further proceedings, not because I think that the appellants have a right to the dividends, for that question I have not considered, but because, claiming to be interested, as they do, no decree could be passed, consistently with well known principles of equity, affecting their alleged rights, unless they had had an opportunity of being heard in defence of those rights; and this, as well for the purpose of giving [**51]  full and complete justice between all persons claiming an interest in the subject-matter, as to protect the corporation itself, whose duty it might be to obey the decree, against further litigation with such claimants as had not been made parties.
LE GRAND, C. J.--With the aid I could obtain from the very able arguments of counsel, and from my own study and reflection, I prepared a statement setting out, at large, my views in regard to the case; but, inasmuch as a majority of the court did not concur in them, it would be useless to file it in the cause, the more particularly so, as a majority of the court agree that the course of procedure indicated in the opinion of Mr. Justice Tuck, will, in the end, bring to a determination the rights of all parties claiming to be interested in the subject matter of the controversy.
I content myself, therefore, with merely stating what is understood to be the effect of the opinions of a majority of this court. It is this: that before final decree, these petitioners 

 [*507]  ought to be heard as parties, and that if they be not, and are shown to be prejudiced because of the refusal, on appeal, after final decree, the decree will be held to be [**52]  of no avail as against them, and will be reversed or remanded, under the Act of 1832, chapter 302, that the proper parties may be made.
Order affirmed by a divided court. 

153 of 196 DOCUMENTS 

ELIZA WARD and ELIZABETH A. R. WARD vs. GEORGE HOLLINS and Others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 158; 1859 Md. LEXIS 65 

July 15, 1859, Decided 

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

The decree from which this appeal was taken, and the proceedings in reference to the appeal, are fully stated in the opinion of this court. The other facts necessary to be stated are briefly these:

The appellant, Eliza Ward, with others, on the 15th of February 1851, mortgaged certain real estate, in the city of Baltimore, to F. A. Sumner to secure the payment of $ 5000, the said Eliza being the owner of one undivided third thereof. This third, subject to the above mortgage, she conveyed to her daughter, Elizabeth A. R. Ward, for the consideration of five dollars, by deed dated the 1st of August 1851, reserving however a life-estate to herself. The mortgage debt not being paid, a decree for a sale of the property, to pay the same, was passed on the 25th of February 1852, and in July 1853, William G. Thomas having become the owner of the mortgage and decree, an agreement was entered into between him and the other parties interested in the property, including the appellants, by which, in order to perfect the title to the property and to satisfy Thomas the amount due him under the decree, and to obtain title deeds in severalty [**2]  for their respective portions, free from the lien of the mortgage and decree, the parties agreed that Thomas should become the purchaser thereof, and as soon as he obtained a deed therefor from the trustee, to execute to the said Eliza Ward a deed in fee for a portion of said property, particularly described, which should be taken and accepted by the said Eliza Ward and Elizabeth A. R. Ward, her daughter, in full satisfaction of all their interest and claim in and to the entire property, or the proceeds thereof. Thomas became the purchaser, and the sale having been ratified, and a deed executed to him by the trustee, he, on the 28th of September 1854, executed to Elizabeth A. R. Ward, for the consideration of five dollars, a deed conveying to her that portion of the property mentioned in the above agreement This latter deed is the one which, by the decree appealed from in this case, was declared null and void as against the appellees, the creditors of Eliza Ward, upon a creditor's bill filed by them on the 8th of October 1855. The allegations of this bill, and the answers and the proof in the case, are sufficiently indicated in the opinion of this court and the arguments of counsel.  [**3]  

DISPOSITION:
Decree reversed and cause remanded, each party to pay their own costs in this court.  

HEADNOTES:

An agreement by the defendants' solicitor to withdraw their appeal, must, in the absence of proof to the contrary, be presumed to be made by the clients' authority; according to the Maryland practice, no power of attorney is usual or necessary.

If an appeal be prayed and allowed, and then withdrawn by the appellant's order, he is not thereby precluded from afterwards prosecuting an appeal in the same cause, provided it is done within the time limited by law.

If, for a legal and valid consideration, a party who has prayed an appeal, agrees to withdraw it, and not thereafter to appeal, such an agreement will be enforced.

But an agreement to withdraw an appeal, and not thereafter to appeal, in consideration that the trustee would suspend the sale, authorised by the decree, for ninety days, is nudum pactum.

A trustee has no power to agree to delay the sale authorized by the decree, and such an agreement cannot be enforced on behalf of the defendants.

After the complainants' solicitor has been appointed trustee, the complainants no longer stand towards him in the relation of clients in the cause, and he has no power to stipulate for delay in the execution of the decree, nor can he bind them by an agreement to that effect.

A decree on a creditors' bill, which adjudges in favor of all the claims of the complainants, when no proof whatever was given in favor of any of such claims, save one, is, for this reason, erroneous, and must be reversed.

The rights of purchasers, under sales made by the trustee, will be protected and the sales remain valid, though the decree be reversed.

Where a creditor's bill assails a deed, either for the purpose of having it rectified or vacated, all parties to the deed are necessary parties to the suit, and without such parties no valid decree can be passed.

Persons, not creditors at the time of a conveyance, cannot impeach it for fraud in law, but a party cannot dispose of property without consideration to the prejudice of his existing creditors. 

COUNSEL:
Edw. Holloway and Jas. Malcolm, for the appellants, argued:

1st. That the deed of 1851 was made in good faith, and cannot be impeached by subsequent creditors, and that the agreement of 1853 did not alter the rights of the parties thereto, there being a mistake in reference to whom the deed of 1854 was to be made; that the execution, by Thomas, of the deed of 1854, to Elizabeth, was right and proper, and there is no fraud or mala fides shown on her part; that it is incumbent on the appellees to show debts existing anterior to the deed of 1851, or to show fraud in fact, and having failed to show either, the decree is erroneous, and the deed of 1854 should not have been set aside and declared a nullity. 11 Md. Rep., 198, Banks vs. Williams.

2nd. That the deed of 1851, having been duly acknowledged and recorded, was legal notice to the appellees that the title was in Elizabeth, except as to the life-estate of Eliza, and the title was in the former down to 1854, when the new deed from Thomas was made; that there is no evidence to show that any representations were made, such as are alleged [**4]  in the bill and attempted to be proved; and that the appellees had notice, and, having notice, have no equities that will entitle them to set these deeds aside. 11 Md. Rep., 198.

3rd. That the entry of a prayer for an appeal made by the defendants, on the 26th of April 1856, by act and operation of law, vested jurisdiction in this court, and that this right of appeal could not be waived or taken away by any agreement subsequently made by the solicitors for the parties, it not appearing in the cause that the solicitor for the defendant had ever received a new warrant to waive the appeal already taken. But if the solicitors, by virtue of their office, have such power, that then the agreement of the 28th of April 1856 is void for want of consideration, and if not void for want of consideration, then it is waived by the agreement filed on the 1st of July 1856. The appellants also contend, that this last mentioned agreement is void and inoperative in law, because the solicitors, as such, had no authority to change or alter the terms of the decree by agreeing that the sale shall be made after ten days' notice. Act of 1826, ch. 200. 2 Inst., 368, 1 Salk., 89. Cro. Eliz., 177, Herd vs.  [**5]  Burstowe. 2 Bos. & Pull., 357, Tipping vs. Johnson. 2 Ld. Ray., 1252, Atwood vs. Burr. 87 Eng. C. L. Rep., 364, Swinfen vs. Swinfen. 3 Gill, 447, Farmers Bank vs. Mackall. 4 Gill, 20, Doub vs. Barnes. 7 Cranch, 436, Holker, et al., vs. Parker. 6 Johns., 108, Gonnigal vs. Smith. 8 Johns., 361, Jackson vs. Bartlett. 10 Johns., 220, Kellogg vs. Gilbert. 2 Zabriskie, 99, Howe vs. Lawrence. 2 Blackford, 137, Lambert vs. Sandford. 2 Bibb, 382, Richardson vs. Talbot. 5 Dana, 11, Holbert vs. Montgomery. 7 Sm. & Mar., 24, Garvin, et al., vs. Lowry.

4th. That in reviewing the decree its correctness must be determined by the state of the case at the time it was passed, and this court cannot look to any thing subsequently thereto appearing in the record. 6 Md. Rep., 452, Johnston's Adm'rs vs. Thomas & George.

5th. That the decree is erroneous in declaring the deed of 1854 to be utterly null and void, because such declaration is against the allegations and prayer of the bill, the prayer of the bill being, "that the said deed of 1854 may be decreed to be for the use of Eliza Ward, and that Elizabeth A. R. Ward may be decreed to stand seized of the ground mentioned in said deed to the use [**6]  of the said Eliza Ward." The decree is also erroneous in decreeing the sale of the estate described in the deed, for if the deed be in fraud of creditors, and therefore null and void, there was no title before the court below, the title remaining in Thomas, who is not a party to the suit; and that if Thomas be a necessary party this court will remand the cause for further proceedings. Act of 1832, ch. 302. 1 H. & G., 11, Ringgold vs. Ringgold. Ibid., 293, Buchanan vs. Deshon. 4 H. & J., 518, Hayward vs. Carroll. 6 G. & J., 171, Evans vs. Iglehart. 7 G. & J., 143, Boteler & Belt vs. Brookes. 8 G. & J., 136, Calwell vs. Boyer. 9 G. & J., 80, Clagett vs. Hall. 11 G. & J., 153, Warnick vs. Michael. 8 Gill, 391, Tolson vs. Tolson. 1 Md. Rep., 325, Thomas vs. Doub. 8 Md. Rep., 34, Jamison vs. Chesnut.

P. McLaughlin and Chas. H. Pitts, for the appellees.

1st. This appeal should be dismissed, because the taking of it was in violation of the agreement of the 28th of April 1856, made by the solicitors of the respective parties, for a valuable consideration, filed in the case and now a part of the record. It is said by the appellants, that they are not bound by such an agreement, and [**7]  that it is such as the solicitor, by virtue of of his general power, could not have made. We submit that the reverse of this proposition is law. When the appearance of a solicitor is entered on the record, it is presumed to be done by the party for whom he appears, and whatever is done by the solicitor, in the progress of the cause, is considered as done by the party and is binding on him. 7 H. & J., 275, Henck vs. Todhunter. 2 Md. Ch. Dec., 143, Bethel Church vs. Carmack. Ibid., 425, Thornburg vs. Macauley. It has been doubted, whether an attorney may make a compromise, though he may submit a matter to arbitration, yet, if the compromise be bona fide and works no considerable hardship, the courts will be slow to disturb it, and will refuse to do so when it has been acquiesced in with a full knowledge of the facts. 8 Md. Rep., 169, White vs. Davidson. An attorney for a foreign creditor, may unite in recommending an insolvent trustee, and the client will be bound by such act, though his claim is thereby submitted to the operation of our insolvent laws and discharged. 4 Md. Rep., 306, Jones, et al., vs. Horsey, et al. A reference by an attorney, though expressly forbidden by the client,  [**8]  is binding. 3 Taunt., 485, Filmer vs. Delber. Where the plaintiff's attorney had entered judgment, for want of the defendant's joining issue, but afterwards consented to accept the joinder, the court, on motion, compelled him to accept, though the plea tendered was limitations. 1 Salk., An agreement by the defendant's attorney to reinstate a cause in which a non pros. had been entered, is within his power and binding on his client. 1 Binney, 469, Einholdt vs. Alberti. An agreement by the attorneys, that a case shall stand continued, that the plaintiff would abandon the first and last articles in his account, and that the defendant would waive objections to notice served on him, is binding and will be enforced, unless there be fraud, mistake or surprise. 2 New Hamp., 520, Alton vs. Gilmanton An agreement to execute the property of the maker of a promissory note, by which the endorser would be discharged, is binding on the client. 5 Pet., 99, Union Bank of Georgetown vs. Geary. An attorney has power to enter into an agreement to confess judgment. 11 Md. Rep., 389, Farmers Bank vs. Sprigg. If an attorney, by virtue of his general powers, may do all these things, has he not power to withdraw [**9]  an appeal and agree that an appeal shall not again be taken from a decree? But further, it has been decided, that from a decree, made by consent of counsel, no appeal lies, and such decrees are common in Maryland. 7 Gill, 302, Williams vs. Williams. If parties have agreed not to take a writ of error, or to apply for an injunction, they will be bound by their agreement. 1 H. Bl. Rep., 21, Calvert vs. Edie. Parties, by their convention, may relinquish their right of appeal, and cases are not wanting to show, that a superior court will enforce the consent of an attorney not to bring a writ of error. 4 Yeates, 551, Galbreath vs. Colt. See also 6 Binney, 99, Cahill vs. Benn.; 4 Monroe, 377, Talbot vs. M'Gee, et al.; 37 Eng. Law & Eq. Rep., 327, Swinfen vs. Swinfen; 2 Crompton & Meeson, 427, Best vs. Gompertz. In Pike vs. Emerson, 5 New Hamp., 393, there was an agreement, pending the action, that the judgment of the court shall be final and conclusive, if against the plaintiff, he waiving his right of appeal, signed by the attorneys of the plaintiff and defendant, and it was held, that in the absence of a mistake no appeal could be prosecuted. In the present case, but for the agreement,  [**10]  no appeal bond having been filed, the trustee could have sold the property, and the consideration is a delay of ninety days in the sale, as to the first agreement, and the second exempts a large portion of the property from sale. These are sufficient considerations for the agreement, and we therefore submit, that this appeal should be dismissed.

2nd. But if we mistake the law applicable to the agreement, we submit, that, on the whole pleadings and evidence, the decree should be affirmed. By the Act of 1832, ch. 302, sec. 5, all objection to the competency of witnesses and the admissibility of evidence, and to the sufficiency of the averments of the bill, must be made by exceptions filed in the cause, and no point, on any of these matters, shall be raised in this court, unless it plainly appear in the record, that such point had been raised by exceptions in the court below. There is no exception to the sufficiency of the averments of the bill, and if these are sufficient, or cannot be inquired into, we cannot perceive how any exception can be taken to the prayer of the bill, even if it be defective, which we deny. But there is also a prayer for general relief. As to the testimony [**11]  we submit, that it establishes a case of fraud sufficient to avoid the deed, even as to subsequent creditors. 3 Md. Ch. Dec., 477, Brinton vs. Hook. 8 Wheat., 229, Sexton vs. Wheaton. It is said that Thomas should have been made a party to the bill, but this objection comes too late. It should have been taken by plea in abatement in the court below, and even then it would not have availed, as there is no allegation of any wrongful act on the part of Thomas. As to him and Eliza Ward the deed is good and cannot be set aside by them, (certainly not by the latter,) or their legal representatives. 1 Vernon, 132, Franklin vs. Thornebury. Ibid., 464, Bale vs. Newton. 2 Vernon, 473, Clavering vs. Clavering. 6 H. & J., 61, Dorsey vs. Smithson. 6 Gill, 28, Sedwick vs. Sedwick. 9 Md. Rep., 357, Wilson vs. Watts.

3d. But should the court reverse the decree, it will still be held valid as to the property sold under it, and the rights of the purchaser protected. 7 H. & J., 160, Chase vs. M'Donald.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*164]  BARTOL, J., delivered the opinion of this court.
The decree from which this appeal was taken was [**12]  passed on the 8th day of April 1856, declaring a certain deed of the 28th of September 1854, to be void as against the complainants and other creditors of Eliza Ward, directing the property mentioned in that deed, or so much thereof as might be necessary, to be sold to discharge the claims of the complainants and all other creditors of Eliza Ward who may come in as parties to the suit, and appointing P. McLaughlin, Esq., trustee to make the sale.

 [*165]  On the 26th of April 1856, the defendants prayed an appeal, which was granted; afterwards, on the 28th of April, the following agreement was filed in the cause:
"It is agreed that the trustee shall suspend the sale authorized to be made in the above cause, for ninety days from date, and in consideration thereof the defendants, in the above cause, agree to withdraw their appeal, and agree that they will not hereafter appeal from the decree in the above cause--

April 28th, 1856.
P. MCLAUGHLIN, Sol. for Complainants.
GEO. ROSS VEAZEY, Sol. for Defendants."
Afterwards, on the 1st of July 1856, another agreement was filed, signed in the same way, agreeing "that P. McLaughlin, the trustee, shall proceed to sell all of the ground [**13]  authorized to be sold in the above cause, which lies east of Stricker street; and that such sale may be made on ten days' notice."
In pursuance of the last mentioned agreement, the trustee made sale of that part of the property therein mentioned, for the sum of $ 3180, which was finally ratified on the 25th of July 1856.
On the 25th of September thereafter, the defendants, by their present solicitors, prayed an appeal from the decree, which brings this record before us.
It is urged, on the part of the appellees, that the appeal ought to be dismissed, because it was taken in violation of the agreement of the 28th of April, which, it is contended, was a binding contract, and ought to be enforced. Its validity is not questioned upon the ground of any collusion or fraud on the part of the solicitors who signed it, nor does the record contain any proof upon which such a charge could be made.
It is not necessary to enter into the question, whether the late lamented solicitor for the appellants had the power, by virtue of his general authority as solicitor, to make the agreement. In the absence of proof to the contrary, we think it ought to be presumed, that the act was done by the client's [**14]  authority; according to the practice in Maryland, no power of attorney is usual or necessary. Henck vs. Todhunter, 7 H. & J. 275.

 [*166]  For the purposes of this case, we treat the agreement as if it had been made by the appellants themselves, and yet we think the motion to dismiss ought not to be sustained. We take it to be quite clear, that if an appeal be prayed and allowed, and then be withdrawn by the order of the appellant, he is not thereby precluded from afterwards prosecuting an appeal in the same cause, provided it is done within the time limited by law, but if, for a legal and valid consideration, he agree to withdraw the appeal, and not thereafter to appeal, such an agreement would be enforced. In the case before us, however, there was no legal or valid consideration for the agreement. Mr. McLaughlin, with whom it was made, had no authority to stipulate for delay in the execution of the decree; he could not bind the complainants by such an agreement; they no longer stood towards him in the relation of clients in the cause, after he had been appointed trustee. Farmers Bank of Maryland vs. Mackall & Tilton, 3 Gill 447.
The alleged consideration [**15]  for the contract was an agreement on the part of the trustee, after the decree, to delay the sale for ninety days; this agreement he had no power to make; it could not have been enforced on behalf of the defendants; it was nudum pactum, and cannot be enforced against them.
The decree is manifestly erroneous. The bill was filed, originally, by George Hollins, Robert McEldowney & Co., Haywood, Bartlett & Co., and Wroth & McCreery, all setting up claims, as creditors of Eliza Ward, who, in her answer, denies her alleged indebtment to any of the complainants, except to McEldowney & Co., and Wroth & McCreery, for small sums, much less than those claimed by the bill. After the answers had been filed, Gould & Glandvill came in by petition, alleging themselves to be creditors, and were admitted parties complainants.
No proof whatever was given in support of any of the claims of the complainants, except that of George Hollins, and yet the decree, adjudged in favor of them all, and for that reason ought to be reversed. But the rights of the purchasers, under the sales made by the trustee, will be protected and the sales 

 [*167]  remain valid, in conformity with the practice of this [**16]  court in similar cases. See Wampler vs. Wolfinger & Strite, 13 Md. 348, and the authorities there cited.
As the cause will be remanded for further proceedings, we deem it proper to say, that the averments of the bill, if exceptions be taken thereto, are not sufficient to justify such a decree as was passed in the cause. The object of the proceeding being to assail the deed of the 28th of September 1854, either for the purpose of having it rectified or vacated, all the parties to the deed are necessary and proper parties to this cause, without whom no valid decree can be passed.
In the final disposition of the cause the rights of the creditors may depend on the times when their claims originated; because we do not think there was sufficient evidence of fraud in fact, on the part of Mrs. Eliza Ward. See Williams vs. Banks, 11 Md. 198.
The parties are at issue on that question, and the complainants have failed in supporting the allegations of the bill in that behalf. She was not indebted, as far as now appears, to any of them, when she made the deed to her daughter, of the 1st of August 1851, conveying her equity of redemption. Nor does she [**17]  appear to have acquired any interest in the property afterwards, (except that reserved by the deed of August 1851,) until July 1853, the time of the agreement, under which the property was purchased by Thomas.
Persons, not creditors at the time of a conveyance, cannot impeach it for fraud in law. But if Eliza Ward acquired property after contracting debts, she cannot dispose of it without consideration, to the prejudice of her existing creditors. In the present state of the record, we cannot pass upon the rights of the creditors; but will leave them to establish their claims as they may be able, there being sufficient to show, that the property may eventually be liable for some of them.
Decree reversed and cause remanded, each party to pay their own costs in this court. 

DISSENTBY:
LE GRAND 

DISSENT:

LE GRAND, C. J., delivered the following dissenting opinion:
I have not a shadow of a doubt, that the decree in this case 

 [*168]  was erroneous. Besides other objections to it, the fact that there was not a particle of proof to sustain any of the claims mentioned in the bill, except that of George Hollins, would be sufficient to condemn the decree which adjudges in favor of the validity [**18]  of all of them. Looking to all the circumstances of the case, I confess I have been anxious to find out some method by which I could feel myself authorized to reverse the decree and remand the cause for further proceedings, but I have not been able to discover any principle which would justify me in such a course. I think the motion to dismiss the appeal ought to be sustained. There are no exceptions to the sufficiency of the averments of the bill, but even if there were, the question would still be, what effect would the agreement to waive the appeal have? There is no proof whatever of any collusion or fraud, on the part of the original counsel of the appellants in making the agreement to abandon the appeal, and the question, therefore, simply is, whether it was competent to him to make it as solicitor? If it was, then the motion to dismiss must prevail.
There is no warrant of attorney necessary in this State. Henck vs. Todhunter, 7 Har. & John. 275. An agreement made by counsel, free from fraud or mistake, is equivalent to an agreement between the parties. It has been long the practice in this State to consider binding, decrees made by consent of counsel, and from [**19]  such decrees no appeal will lie. Williams vs. Williams, 7 Gill 302. An attorney may confess judgment. Farmers Bank of Md. vs. Sprigg, 11 Md. 389. He has the power to pray an appeal, and it is every day practice for him to dismiss an appeal. If he have this power it is difficult to understand, why he has not that of agreeing to abandon the appeal, before the record reaches the appellate court. See Galbreath vs. Colt, 4 Yeates 551.
I assent to all the other views of my brothers.  

154 of 196 DOCUMENTS 

BENJAMIN MILLER and DANIEL KAUFFMAN vs. JAMES E. BARROLL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 173; 1859 Md. LEXIS 67 

July 15, 1859, Decided 

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

This is a mechanics lien case. The claim filed by the appellants was for painting and glazing done by them upon a house. The proceedings prior to the trial are fully stated in the opinion of this court.

1st Exception. The plaintiffs having proved that they did the whole painting on the house in question, and that it, and the lot on which it was erected, at the time the house was commenced belonged to Kridler, and that it was built under the superintendence of Kridler's foreman, then offered to prove that the plaintiffs had painted several other houses, in 1853 and 1854, for Kridler, and in each instance had done the whole painting on such houses. This evidence was offered for the purpose of allowing the jury to infer from it in connection with the evidence in the cause, that the plaintiffs had done the work on the house in question in pursuance of a contract with Kridler, or generally, that they had contracted to do all the painting for houses built by Kridler in 1853 and 1854. The defendant objected to the admissibility of this evidence, which objection the court (MARSHALL, J.) sustained, and to this ruling the plaintiffs excepted.

2nd [**2]  Exception. The plaintiffs then offered to prove that, just about the time the house in question and the adjoining one which Kridler was also building, were being commenced, Kridler said to one of the plaintiffs that he wanted them to prime the frames for said houses and see about painting these houses. This evidence was offered as tending, in connection with the other evidence in the cause, to prove that the painting done by the plaintiffs was done under a contract with Kridler to do all the painting for the house in question. To the admissibility of this evidence the defendant objected, which objection the court sustained, and to this ruling the plaintiffs excepted.

3rd Exception. The plaintiffs proved that they were partners and did the work, and furnished the materials, set forth in their claim of lien, for the building therein mentioned; that the building was commenced in the summer of 1853, and at that time Kridler was the owner of the lot on which it was erected. They further proved by Houck, that the plaintiffs commenced painting on the frames of the windows for this house about the time, or shortly after its commencement, and that they did all the painting on it, and that [**3]  the last painting was done in July 1854. On cross-examination this witness testified that the house was finished in the spring of 1854; that Mr. Barroll had another building added, and an observatory on top, and an office made in the basement; the alterations were made by Kridler; the same hands did the extra work that did the original work; witness was foreman for Kridler and superintended the building and also the extra work; the plaintiffs did the painting on the new work; they commenced painting in July 1853 and finished in July 1854; witness knows nothing personally of a sale to Mr. Barroll; the house was not completed when the alterations were commenced; he does not know whether all the painting was then done or not. They further proved by Miller, a brother of one of the plaintiffs, that he was employed by them and worked for them on this house; he commenced in 1853, some time in the summer; he recollects the alteration of the basement, and that all the painting was not finished when the alterations were commenced; that the plaintiffs painted all the alterations; witness did not know any thing of Mr. Barroll in the matter at all.

The defendant then offered in evidence a [**4]  deed from Kridler to Barroll for this house and lot, dated the 18th of May 1854, and duly recorded the next day. The plaintiffs then asked the following instruction to the jury.

That if the jury find from the evidence that the plaintiffs did the work, and furnished the materials set forth in the claim of lien, for the house therein described, in pursuance of an employment by Kridler to do and furnish the same, and that at the time of so employing them Kridler was the owner of the building and the lot on which it was erected, and that said work was done and said materials furnished continuously until the work and materials done and furnished by the plaintiffs for the building were completed, and that a portion of said work and materials was furnished and done for said building within six months before the filing of their claim for lien, and in pursuance of said employment by Kridler, then that it was not necessary for the plaintiffs to give any notice to the defendant Barroll of their claim and intention to claim the benefit of a lien therefor, in order to entitle them to the benefit of a lien on said building and lot, even though the jury may also find that after the employment [**5]  of the plaintiffs by Kridler, and more than six months before the filing of this claim for lien, Kridler sold and conveyed the building and lot to the defendant Barroll, unless the jury shall further find that the plaintiffs had other notice of such sale and conveyance than is given by its being recorded, or shall find that there was no work done or materials furnished within six months before the filing of this lien, in pursuance of an employment by Kridler whilst he was actual owner of the building and lot.

The defendant then offered the following prayers:

1st. That the plaintiffs cannot recover in this case, because this court has no jurisdiction over the subject matter in controversy.

2nd. That if the jury find the making, delivery and recording of the deed offered in evidence by the defendant, and further find that thereafter Kridler went on to complete the building, mentioned in the proceedings, and to make additions and alterations thereto, as contractor and not as owner, then the plaintiffs cannot recover for any work or materials furnished after the 19th of May 1854, because there is no evidence of notice, as required by the Act of 1845, ch. 176, sec. 1.

3rd.  [**6]  That the plaintiffs are not entitled to recover for any work or materials furnished for the building, described in the proceedings, before the 19th of May, 1854, if the jury find the making, delivery and recording of the deed from Kridler to Barroll, offered in evidence by the defendant, and further find, that the lien claimed by the plaintiffs was not filed till the 16th of December, 1854.

The court (MARSHALL, J.) refused the plaintiffs' prayer and granted the second and third prayers of the defendant, and to this ruling the plaintiffs excepted.

4th Exception:--This exception was taken by the defendant to the refusal of the court to grant his first prayer, as stated in the preceding exception.

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

DISPOSITION:
Judgment reversed.  

HEADNOTES:

Evidence that the plaintiffs had painted several other houses for K, and, in each instance had done all the painting on them, does not tend to show that they had done the work on the house, on which they claimed a lien, in pursuance of a contract with K, to do all the painting on that house, or to do all the painting on all the houses built by K, and is inadmissible for such purpose.

Evidence, that about the time the house in question, and the adjoining one, which K was also building, were commenced, K said to one of the plaintiffs, he wanted them to prime the frames for and see about painting these houses, is competent to go to the jury, as tending to show that the painting, done by the plaintiffs, was done under a contract with K, to do all the painting for the house in question.

The sale of a house and lot, whilst the house was in process of erection and unfinished, cannot alter or affect the rights of mechanics, under our mechanics' lien laws, who were then engaged in doing, and continued afterwards to do work, under a previous employment by the vendor when owner.

Where there is work done and materials furnished, continuously under one contract or employment, made by the vendor of the house and lot, whilst owner thereof, the mechanics can recover for the whole, without giving the purchaser the notice required by the Act of 1845, ch. 176, sec. 1.

The Constitution confers on the court of Common Pleas original jurisdiction, only "in suits where the debt or damage claimed shall be over one hundred dollars and shall not exceed five hundred dollars." HELD:

That this language does not embrace a proceeding to enforce a mechanic's lien, which is not a suit for debt or damage, but a proceeding in rem. by scire facias, and that court therefore has no jurisdiction in such cases.  

COUNSEL:
Edward Israel and Levin Gale, for the appellants, argued:

1st. That the evidence offered in the first and second exceptions should have been admitted to prove an employment by Kridler, when owner, to do the work, and from which the jury might infer the nature, extent and character of the employment. 4 Watts & Sergt., 262, Jones vs. Shawhan. 6 Harris, 160, Holden [**7]  vs. Winslow. 7 Harris, 341, Bartlett vs. Kingan. 10 Harris, 491, Yearsley vs. Flanigen.

2nd. The principal question presented by the third exception is, whether the sale by Kridler to Barroll, in May 1854, whilst the house was in process of erection, altered or affected the rights of mechanics who were then engaged in doing, and continued afterwards to do, work under a previous employment by Kridler, as owner? The instructions of the court took away from the jury all questions of fact as to the time and nature of the employment of the plaintiffs, and defeated their claim on the sole ground of the sale to Barroll. The appellants contend:

1st. That the mechanic is only to look to the person who is owner at the time the building is commenced, or at the time he makes his contract. Acts of 1838, ch. 205, sec. 9, 1845, ch. 176, sec. 1, and 1845, ch. 287. 2 Sergt. & Rawle, 138, American Fire Ins. Co. vs. Pringle. 5 Rawle, 291, Pennock vs. Hoover. 4 Watts & Sergt., 262, Jones vs. Shawhan. 6 Harris, 160, Holden vs. Winslow. 10 Harris, 491, Yearsley vs. Flanagen. 3 Md. Rep., 168, Okisko Co. vs. Matthews. Ibid., 241, Wells & Miller vs. Canton Co. 9 Md. Rep., 184, Denmead vs. Bank of [**8]  Baltimore.

2nd. That if a change does affect it, it ought to have been left to the jury to say whether or not Kridler was acting as agent for Barroll.

3rd. That it ought to have been left to the jury to say whether or not Kridler was the reputed owner.

4th. That no question is raised as to the addition, and if such question was intended to have been raised it should have been submitted to the jury.

3rd. The point raised by the defendant's exception is, as to the jurisdiction of the Court of Common Pleas to enforce mechanics' liens. Ever since the organization of the two courts in Baltimore, it has been a disputed point, in lien cases, where the claim was for a sum between $ 100 and $ 500, whether the jurisdiction belonged to the Common Pleas or to the Superior Court. Each court has entertained jurisdiction and enforced claims in such cases, but the point has not yet been before the Court of Appeals. In this state of doubt, it has been the practice of many members of the bar to file the claim for a lien in both courts, and this was done in this case. The amount not being large, ($ 476.39,) the plaintiffs did not care to run the risk of being thrown out of court and [**9]  put to costs on a question of jurisdiction, and therefore did not issue a scire facias, but determined to wait until the question should be adjudicated by the Court of Appeals. Under these circumstances the appellee filed his petition in the Court of Common Pleas, calling on the plaintiffs to appear in that court, and proceed to establish their claim of lien. This compelled the plaintiffs either to appear or abandon their lien. They did accordingly appear and proceeded to trial, and when the evidence had all been offered, the first point made by the appellee was, that the court, into which he himself had brought us, had no jurisdiction over the subject. The Court of Common Pleas holding to the opinion that it had jurisdiction, the plaintiffs were still put, by the defendant, in the attitude of being compelled to press their case to judgment in that court, or of abandoning the lien altogether, for the judgment of the Court of Common Pleas on the merits, if wrong, unreversed would have bound the parties to it. The plaintiffs were thus again put to the alternative of taking this appeal from the other points decided against them, or of abandoning all claim. The appellants therefore contend [**10]  on this point:

1st. That the appellee having brought us into the Court of Common Pleas, by his petition, and compelled us to try it in that court, cannot be heard to deny the jurisdiction of the court, or ask this court to inquire into the same. 13 How., 307, Phil., Wil. & Balto. R. R. Co. vs. Howard.

2nd. That the Court of Common Pleas has jurisdiction.

3rd. That if it has no jurisdiction, and this court will inquire into that question in this case, yet the instructions granted and the judgment rendered, having been on the merits of the case, if these instructions were erroneous, this court should reverse the judgment without costs, and leave the plaintiffs unaffected by the judgment of the Court of Common Pleas, on the merits, and send the case back to be dismissed, or refuse a procedendo. The plaintiffs are entitled to a trial of their right to a lien on this property, on the merits, either in one court or the other, and should, in case the rulings of the Court of Common Pleas on the other questions were erroneous, be entitled to their costs, since their position in the Court of Common Pleas, and in this court, was produced by the defendant's action, and not their [**11]  own. 2 Gill, 254, Burgess vs. Pue.

Benj. C. Barroll, for the appellee argued:

1st. That the court of Common Pleas had no jurisdiction to file and record the lien claim in this case, or to issue the scire facias thereon, and if this be so, this court will affirm the judgment without regard to the other questions. Cons., Art. 4, secs. 8, 10, 11, 15. 8 Md. Rep., 147, Blimline vs. Cohen. 5 Md. Rep., 337, State vs. Mace. If, at any stage of the cause, the court finds it has no jurisdiction over the subject matter, it may be availed of; even consent cannot give jurisdiction.

2nd. That the evidence set forth in the first and second exceptions, was properly excluded, because it did not tend to prove the facts for which it was offered, and because the facts, if proven, were wholly irrelevant and did not tend to establish the right of the plaintiffs to recover their claim, or in any manner affect that claim. If the evidence had been admitted the jury could not legally have found, that the painting was done under a contract with Kridler, to do all the painting for the house in question.

3d. That the ruling in the third exception was proper and ought to be affirmed. Time was [**12]  here of the essence of the whole proceeding, (6 Gill, 17, Carson vs. White,) and the claim is only for painting done "within six months last past," that is, six months before the filing of the lien, and the appellee had purchased the property prior to this time. The appellee insists upon these propositions:

1st. That a party who intends to avail himself of the lien law, to bind the owner of the property, is bound to ascertain who is the owner at the time he does the work and furnishes the materials. 4 Md. Rep., 296, Greenway vs. Turner.

2nd. That if the ownership is changed, after a party has been employed to do work, or while the work is in progress, such change establishes new relations between the parties and the former relations are necessarily at an end. These new relations arise under the lien law and not by the act of the parties.

3d. That a personal contract about work on a house, does not bind or affect a subsequent purchaser, with or without notice of such contract. It binds only individuals making such contract; it is not like a covenant running with the land.

4th. That a party who has done work for an owner and also, for an agent or contractor of a subsequent [**13]  owner of the same building, cannot link the work together in one claim of lien, and thus avoid giving the subsequent owner the notice required by law, of the intention to claim the benefit of the lien law. Nor can such party, in this manner, evade the requirement of the law, in relation to filing the lien within six months. The party must file each claim in the several capacity in which he has done the work.

5th. That an addition to a house is not liable to a claim of lien and cannot therefore be used in aid by a claimant to bring his claim within the six months mentioned in the Act. Act of 1845, ch. 176, sec. 3. 10 Barr., 379, Landis's Appeal. 8 Watts, 514, Miller vs. Oliver. 2 Barr., 77, Driesbach vs. Keller.

6th. That the appellee bought the house as it stood, and all work done after the purchase was done for him, Kridler being only his agent or contractor.

7th. That the cardinal error in the plaintiffs' prayer is in supposing that the building is affected in the hand of a present owner by a contract, made with a former owner--that the lien binds by virtue of the contract--whereas the lien law does not embrace or regard a contract to do work or furnish materials;  [**14]  it is only the doing of the work or furnishing the materials which gives the lien; when the contract is complied with, it is the work done, and not the contract, which originates the lien, and the law provides, that the notice to the owner shall be calculated, not from the date of the contract between the parties, but within sixty days after the work or materials shall have been done or furnished. Act of 1845, ch. 176, sec. 1. There is no notice to be given until after the right to file a lien has attached.

8th. The defendant's prayer contains the plain principle, that the plaintiffs cannot recover for work done before the 19th of May 1854, because the claim was filed too late. And they cannot recover for work done after that date, because they did not give the notice to the owner required by the Act of 1845. And they cannot link the two together, because the work was done in two distinct and several capacities, to wit, for Kridler, as owner, and for Kridler, as contractor for the appellee.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*182]  BARTOL, J., delivered the opinion of this court.
The appellants, on the 16th of December 1854,  [**15]  filed in the office of the clerk of the Court of Common Pleas, their claim upon a dwelling house and appurtenances, for work done and materials furnished, at the instance of Jacob F. Kridler, who, they allege, was the owner of the property. No scire facias having been issued, the appellee filed his petition in said court, under the 22nd section of the Act of 1838, ch. 205, alleging that he was the owner of the property, and praying that Kaufman and Miller might appear and proceed to establish their lien, as if a scire facias had issued.
A trial was had, and the verdict and judgment being in favor of the appellee, this appeal has been prosecuted.
It was agreed between the counsel, "that under the plea, non assumpsit, the claimant and defendant might avail of any defence which could be made by special plea, as fully and to all intents and purposes."
In our opinion, the evidence offered by the plaintiffs, in the first bill of exceptions, was properly rejected as irrelevant. The question in issue was, whether the plaintiffs had done the work on the house, on which the lien was claimed, in pursuance of a contract with Kridler to do all the painting on that house, or to do [**16]  all the painting on all the houses built by Kridler, and the proof offered was, that they had painted several other houses, in 1853 and 1854, for Kridler, and, in each instance, had done the whole painting on said houses. This evidence could not tend to prove the fact for which it was offered. But we think there was error in the ruling of the court on the second bill of exceptions. The testimony of the witness, Miller, of the declaration made by Kridler to one of the plaintiffs, about the time when the house in question and the one adjoining thereto (which Kridler was also building) were commenced, was competent evidence to go to the 

 [*183]  jury for the purpose stated in the exception, and ought to have been admitted.
We are also of opinion that the court erred in refusing the plaintiffs' prayer, and in granting the second and third prayers of the defendant. They form the third exception, and present the question, as succinctly stated in the appellants' brief; "whether the sale by Kridler to Barroll, of the house and lot, whilst the house was in process of erection, and unfinished, altered or affected the rights of mechanics who were then engaged in doing, and continued afterwards [**17]  to do work, under a previous employment by Kridler, when owner?"
Both the second and third prayers of the defendant were improperly granted. The latter took away from the jury the consideration of the nature of the contract under which the work was done by the plaintiffs, and the time when such contract was made, and defeated their claim upon proof of the sale alone; and the former erroneously made the rights of the plaintiffs depend upon the relations subsisting between Kridler and Barroll after the sale, whereas the right of the plaintiffs to recover depends upon the question, whether the work done and materials furnished were done and furnished by them continuously, under one contract or employment by Kridler, made while he was owner. That fact was properly submitted to the jury by the prayer of the plaintiffs, which ought to have been granted.
This position is sustained by all the authorities cited by counsel in the argument, and we refer to them without again repeating them here.
All the questions presented by the exceptions were fully argued, and we have expressed our opinion upon them in compliance with the request of the counsel on both sides, who have intimated that thereby [**18]  the present controversy may be finally settled without further litigation. We are, however, of opinion, that the objection of the appellee to the jurisdiction of the court in this case was well taken. The jurisdiction of the Court of Common Pleas is limited and defined by the provisions of the Constitution. It has original jurisdiction only "in suits where the debt or damage claimed shall be over 

 [*184]  one hundred dollars, and shall not exceed five hundred dollars;" Art. 4, sec. 10. That provision of the Constitution has been construed by this court in the cases of The State vs. Mace, 5 Md. 337, and of Blimline vs. Cohen, 8 Md. 147. What was there said is equally applicable here. The language does not embrace a proceeding to enforce a mechanic's lien, which is not a suit for debt or damage, but a proceeding in rem. by scire facias upon a record. 6 Gill 25.
In addition to what has been said in the cases cited from 5th and 8th Maryland Reps., we may add, that the clerk of the Common Pleas Court has no authority to record mechanics' liens; by the 15th section of Article 4, they are required to be [**19]  recorded in the office of the clerk of the Superior Court, and the only jurisdiction to enforce them is, by the 11th sec. of the 4th Article, conferred upon the Superior Court in which they are recorded.
The Court of Common Pleas being without jurisdiction in this case, the judgment will be reversed without a procedendo.
Judgment reversed. 

155 of 196 DOCUMENTS 

MAYOR AND CITY COUNCIL OF BALTIMORE vs. ROBERT BRANNAN.--ROBERT BRANNAN vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 227; 1859 Md. LEXIS 71 

July 15, 1859, Decided 

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

Trespass on the case, brought on the 26th of August 1854, by Brannan against the Mayor and City Council of Baltimore, to recover damages for injuries sustained by him, in falling into a hole, which had been dug in the limits of the Bel Air market.

The declaration in some of its counts alleges, that the plaintiff while lawfully passing along a certain public and common highway in the city of Baltimore, which was under the care and management of the defendants, through their servants, whose duty it was to keep the same free and clear from all obstructions and impediments, fell into a hole or pit, which the defendants, by their servants, unlawfully and through carelessness and negligence, permitted to be dug in said highway, and suffered to remain open and uncovered, whereby he was much injured. In other counts it alleges, that the plaintiff, while passing through and in the lawful use of a public market, to wit, the Bel-Air market, in said city, which was under the care and management of the defendants and their servant, the clerk of said market, whose duty it was, under the orders and ordinances of the defendants, to [**2]  regulate said market free and clear from all obstructions and nuisances, fell into a hole in said market, which the defendants and their said servant, in violation of their duty, negligently made and dug, and wilfully and knowingly permitted to remain open and unfilled, whereby he was much injured, &c. Plea, non cul.

Exception.--The facts of the case are sufficiently stated in the opinion of this court. The plaintiff asked the following instruction to the jury:

If the jury find from the evidence, that on the 8th of October 1853, the plaintiff, whilst in attendance upon the night market of the Bel-Air market, fell into the hole or opening, described by the witnesses, and that the existence of this hole or opening was known to the officers and agents of the defendant, or that they might, by care and diligence, have obtained notice of its existence, and that the same could have been filled up, and the danger therefrom removed or avoided, by the use of proper diligence on the part of the defendant, or its proper agents, and the same was not so filled up, then the plaintiff is entitled to recover such damages as the jury may find he sustained because of such injury, provided they [**3]  shall further find, that the plaintiff, when he sustained said injury, was exercising ordinary care and diligence in his attendance upon said market, and shall further find that the plaintiff had no other way by which to proceed to the temporary market, with safety, or that he pursued the path usually taken by persons going to this temporary market.

The defendants then asked the following instructions:

1st. That the city authorities have full power and authority to pull down and erect market houses, and to regulate markets, and are the exclusive judges of the time, place and manner, in which they shall be used by the public.

2nd. If the jury find from the evidence, that the corporate authorities of the city had directed or authorized the destruction of one of the old Bel-Air market houses, which had been accordingly demolished, and the materials thereof taken away, with a view to the erection of a new one in its place, and that in the mean time, and for the accommodation of the public, and until the new building should be completed, a temporary market was erected by the city, and that after the old market had been torn down and the temporary one put up, the plaintiff [**4]  strayed into the place where the old building formerly stood, and, as stated in the evidence, fell into the hole, made by the foundation of an old pillar being dug away and removed, then he is not entitled to recover in this action.

3d. If the jury find from the evidence, that the hole mentioned therein, into which the plaintiff fell, might have been seen by an ordinary person and avoided, or if the jury find that it was shaded, either by the tables carried there by the country people, or by the materials deposited thereon by persons who had contracted with the city to put up a new market, from the light of the city lamps, so it could not be seen, then the plaintiff is not entitled to recover, although they may find from the evidence that the plaintiff fell into the hole and was injured.

The court (LEE, J.) granted all these prayers, and the defendants excepted to the granting of the plaintiff's prayer, and the plaintiff to the granting of those of the defendants. The verdict and judgment were in favor of the plaintiff for $ 500 damages, and both parties appealed.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

The City of Baltimore by its charter has authority "to erect and regulate markets," and "to prevent and remove nuisances." Ordinances were passed to rebuild a market house, and erect a temporary one for the use of the public till the new one was completed. After the old building had been taken down, and the temporary one put up, a hole was dug within the limits of the market by persons who had no business there, into which the plaintiff fell during market hours and was injured. The hole was about twenty feet from a flat outside the old market house, but within the limits taken for the new one, where hucksters were accustomed to sell, and, at the time, were selling vegetables against the orders of the market-master, who had warned them off. The limits of the new market were indicated by a furrow, along which granite stones were placed for the work, which with timber placed at one end were intended as obstructions to keep people off. The plaintiff sued the city to recover damages for injuries sustained by falling into this hole. HELD:

1st. That the action would not be maintained on the ground of negligence in the city, or its agents, in removing the old house; the owner or person in charge of property undergoing repairs or being rebuilt, is not responsible for damages to one who voluntarily goes amidst the ruins having no business there.

2nd. The charter places the city, in this respect, on the same footing as individuals and private corporations, and it assumes the duty, and the consequence of negligence in its performance, of keeping the established markets free from nuisances.

3rd. But this liability cannot be enforced where the party injured has not observed ordinary care and diligence, nor where he met his accident at a place which, at the time, was not an authorised market place, or where buying and selling were carried on against public authority.

4th. When the old house was taken down it ceased to be a market place, and the fact that hucksters were selling on the flat as formerly, does not affect the question, because the plaintiff cannot protect himself against the consequences of his own act under cover of the unauthorised acts of others.

5th. If the ground where the hole was dug was the only way by which the plaintiff could reach the temporary market, or if the city authorities had set apart or indicated it as a way thereto, (of which however there was no proof,) the city would be liable for negligence, if any, in permitting the way to be obstructed by such a nuisance, but the fact that others used the same route does not make the city responsible to the plaintiff.  

COUNSEL:
G. L. Dulany, for the defendants, argued:

1st. That the city authorities had full [**5]  power to establish and regulate markets, and to pull down old market houses and erect new ones, and to judge as to the time and manner in which they shall be used by the public; that while the old market was being demolished and the new one in course of erection, as stated in the evidence, the right of the public to use the site of the old market, as a place of loiter, or as a common thoroughfare, was suspended, and the plaintiff had no right to go within the limits of the old market to buy or sell, or use the same as a common highway, and consequently is not entitled to recover for the injury sustained by him, occasioned by his own default and disregard of the law and ordinances of the city. Act of 1796, ch. 68, sec. 9. Ordinance No. 16, of the 4th of March 1853, and Resolution No. 246, of the 10th of September 1853. Angel & Ames on Corp., secs. 31 to 36. 9 Cranch, 43, Terrett, et al., vs. Taylor, et al. 4 Wheat., 636, Dartmouth College Case. 3 Pet., 409, Fowle vs. The Common Council of Alexandria. 7 Pet., 243, Barron vs. Mayor & C. C. of Balto. 17 How., 167, City of Providence vs. Clapp. 20 How., 135, Smith vs. Corporation of Washington. 7 Mass., 169, Riddle vs. Proprietors, &c.  [**6]  9 Mass., 247, Mower vs. Inhabitants of Leicester. 4 Pick., 414, Merchants Bank vs. Cook. 9 Md. Rep., 109, Owings vs. Jones. 8 Md. Rep., 101, Mayor & C. C. of Balto. vs. Root.

2nd. There was no evidence in the cause of negligence in the city or its officers, either in suffering the hole to be dug, or permitting it to remain unfilled at the time the plaintiff fell into it; nor is there any evidence that the plaintiff had no other way to the temporary market than that which led into this hole. It is, therefore, submitted, that the court erred in granting the plaintiff's prayer.

A. L. Knott, for the plaintiff, argued:

1st. That the Act of 1796, ch. 68, sec. 9, having conferred on the city of Baltimore the power and authority "to prevent and remove nuisances," as also "to erect and regulate markets," it was the duty of the city, by a rigorous exercise of its authority, either, 1st, to prevent persons from digging the hole in the market space, into which the plaintiff fell, as stated in the evidence, or, 2nd, to remove and abate the nuisance, on receiving notice of its existence, by filling up the hole in a proper manner, and adopting adequate and reasonable precautions to [**7]  keep it filled up and prevent persons from re-opening it. The power and authority to prevent or remove nuisances carries with it the duty and obligation to prevent or remove them. 9 Md. Rep., 174, Mayor & C. C. of Balto. vs. Marriott. Rev. Ord. of Balto., 1850, No. 26, secs. 7, 9, 11, 18, 30, 40, 44, 49, 60.

2nd. That independently of the power and authority so conferred, and the consequent duty and obligation so imposed under the statute, it was the duty of the city, in its character as owner and proprietor of the Bel-Air market and market place, and of all the ground embraced within the limits of this market, as set forth in sec. 5, of Rev. Ord., No. 26--the locus in quo of the accident and injury--to exercise the same degree of care and diligence in making its improvements thereon that any private owner of property, whether a private corporation or a natural person, would be bound, under similar circumstances, to exercise; and for an injury occurring through its default or negligence, in this respect, or the default or negligence of its agents and servants, the city is responsible in the same manner, and to the same extent, that any private owner would be responsible;--the [**8]  measure of the liability of the one is the measure of the liability of the other. 9 Md. Rep., 174, Mayor & C. C. of Balto. vs. Marriott. 3 Hill, 531, Bailey vs. Mayor & C. C. of New York; and same case in 2 Denio, 433. 1 Sandf. S. C. Rep., 226, Delmonico vs. New York City, 19 Pick., 513, Thayer vs. Boston. 12 Wheat., 40, Clark vs. Corporation of Washington. 22 Penn. State Rep., 64, City of Pittsburg vs. Grier. Ibid., 388, Erie City vs. Schwingle. 3 Hill, 612, Mayor & C. C. of New York vs. Furze. 1 Brown's Ch. Cases, 469, Moodalay vs. East India Co. 3 Barn. & Adol., 77, Mayor, &c. of Lyme Regis vs. Henley.

3rd. The prayer of the plaintiff was properly granted. It embraced the whole law of the case, and is substantially the same as was granted and received the approbation of this court in Mayor & C. C. of Balto. vs. Marriott. The only questions for the jury to determine were, 1st, had the city, or its agents and servants, exercised proper and reasonable care and diligence in the prosecution of the work at the market, in taking down and removing the old building, so as to prevent the liability of accident, or in preventing or removing the particular nuisance complained of, to wit,  [**9]  the hole in the market space into which the plaintiff fell? and 2nd, was the plaintiff himself in the exercise of ordinary care at the time of the accident? These questions the plaintiff's prayer submitted to the jury and they passed upon them. In addition to the cases already cited, see, on this point, 4 Hammond, 500, Goodloe vs. City of Cincinnati.

The court erred in granting the defendants' prayers for the following reasons:

1st. The first is too vague and indefinite, and in the broad and general terms in which it was granted, was calculated to mislead the jury as to the responsibility of the city. It can be taken in two senses and is susceptible of two constructions. The "full power and authority" and "exclusive discretion," therein claimed for the city, may be taken to be that absolute, unlimited, and illimitable power and authority, and irresponsible discretion, which are the attributes of sovereignty and belong to it alone, and in the exercise of which the sovereign power is exempted from all liability for the consequences flowing from it; or it may be taken to be only that "full power and authority" and "exclusive discretion", which is conferred upon the city by the [**10]  Act of 1796, in regard to the erection and regulation of markets, meaning thereby, that the city has power, authority and discretion, to the exclusion of every body else, qualified, however, by the respect it owes, in common with every other proprietor, to the safety of the lives, health and property of others, and the liability it is under for injury occurring through the negligence, default or unskillfulness of tself, or its agents and servants, in the actual exercise of such power, authority and discretion. If the prayer is to be taken in the former sense, it is clearly erroneous. Power, authority and discretion, of that absolute and arbitrary species, cannot be predicated of this defendant. It is not sovereign but subject. It is the creature of the sovereign power of the State. It derives its being and all its rights, powers, privileges and faculties from the Act of incorporation,--from its charter granted by the State. The State has made it a corporation--it can unmake it. It has clothed it with certain specified powers--these it can alter, modify or take away. Such a condition of subordination is incompatible with the idea of sovereignty in the city, and with the possession,  [**11]  on its part, of that species of absolute power and authority, and irresponsible discretion, which are the marks and attributes of sovereign power alone. If it is to be taken in the latter qualified and conditional sense, the law of the prayer is not denied. But that sense is not clear, and the court should have modified it so as to express the responsibility of the city for its wrongful acts, or those of its officers and servants, in the execution of the work at the market, or rejected it altogether, on the ground that it does not distinguish between the two classes of powers above referred to, and tended to mislead the jury. 3 Comstock, 463, Rochester White Lead Co. vs. City of Rochester. 3 Barb., 254, Brower vs. New York City. 15 New York Rep., 532, People vs. Draper. 1 Selden, 369, Lloyd vs. New York City. 2 Kent, 309, 321, and note. 17 New York Rep., 104, Storrs vs. City of Utica. 16 New York Rep., 160, Conrad vs. Ithica. Ibid., 171, Weet vs. Brockport, and cases already cited under preceding points.

2nd. The second prayer takes from the jury the whole question of care and diligence, and the degree of care and diligence, incumbent on the city in making the improvements at [**12]  the market, and so far conflicts with the doctrine of the plaintiff's prayer granted by the court. There is, besides, no evidence to support that part of it which refers to the plaintiff's straying into the market place, and leaving out that the prayer asserts, if it asserts any thing, the absolute non-liability of the city, under all and any circumstances. It is only a particular application, to the facts in this case, of the erroneous doctrine asserted in general and abstract terms in the first prayer, and is open to the same objections.

3rd. The third prayer errs in this, that it seeks to relieve the city from liability on account of the existence of one nuisance, by pleading the fact of the existence of another, to wit, the suffering and permitting, by the city and its officers, of hucksters and country people to invade and take possession of the space which was the site of the old market house, and had been marked out as the site of the new one, to set up their tables and sell their commodities thereon, and thus invite persons attending the market, as purchasers, into the space. Under the Act of Assembly already quoted, full power and authority is conferred on the city, in [**13]  regard to the regulation of markets. By the Rev. Ord., No. 26, as well as by the special ordinance authorising the improvements in question, given in evidence, the city has proceeded to act under this power, and it is responsible for a complete and perfect execution of it.  

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

OPINIONBY:
TUCK 

OPINION:

 [*235]  TUCK, J., delivered the opinion of this court.
The case before us is, substantially, as follows: Ordinances were passed by the defendants for rebuilding the Bel-Air market house, and for the erection of a temporary one for the accommodation of the public, until the new one should be completed. After the building had been taken down, and the temporary one put up, and in use as a market, a hole was dug within the limits of the old house by persons who had no business there, into which the plaintiff fell, during market hours, on the night of October 8th, 1853. How this happened does not appear: the witnesses speak of him as in the hole when they first saw him. That he was seriously injured is shown by the proof. The hole was about twenty feet from a flat outside the old market house, but within the space taken for the new one,  [**14]  where country people were accustomed to sell vegetables, and were selling at that time, against the orders of the market-master, who had warned them off. At the time of the accident the contractors had taken down the old house, and by means of a plow, had indicated the outlines of the new one, which included 

 [*236]  the flat, and placed along the furrow granite stones for the work, which, with lumber placed at the end next Gay street, about thirty feet from the hole, were intended to serve as obstructions to keep the people off. The temporary market had been put up and in use since the 12th of September.
We have no idea that this suit can be maintained, on the ground of negligence on the part of the defendants' agents in removing the old house. If that were the only proposition, it might be answered, that the owner or person in charge of property undergoing repairs, or being rebuilt, is not responsible for damage to one who voluntarily goes amidst the ruins, having no business there. He cannot ascribe to the supposed negligence of others, that which results from his own imprudence.
But it is contended that, by force of the charter--1796, ch. 68, sec. 9--it was the duty of the [**15]  city authorities to prevent, and remove nuisances of this kind. It is true that, in the case of The Mayor, &c., vs. Marriott, 9 Md. 160, it was decided, that the charter placed the Corporation of Baltimore, in this regard, upon the same footing which is held by individuals and private corporations; and as the defendants had authority "to erect and regulate markets," as well as to "prevent and remove nuisances," it would follow that they had assumed the duty, and the consequences of negligence in its performance, of keeping the established markets free from nuisances. This liability, however, could not be enforced where the party injured had not observed ordinary care and diligence; nor where he met his accident at a place, which, at the time, was not an authorized market place, or where buying and selling were carried on against public authority. When the old house was taken down the ground ceased to be a market place, and the fact of its removal, and the erection of a temporary house, indicated to the public that they could not go upon the old site to sell and buy, with the same privileges and indemnity, in respect thereto, as before the established market had [**16]  been discontinued. The fact, that hucksters were selling on the flat, as formerly, cannot affect the question, because that would be allowing the plaintiff to protect himself against the consequences of his own act, under cover of the unauthorized acts of others.

 [*237]  But then it is claimed that the plaintiff was injured whilst passing over the old ground, towards the temporary market house. We do not perceive the right of the party to pass that way, except upon the hypothesis assumed in his prayer, "that he had no other way by which to proceed to the temporary market in safety." If this was the only way, or had been set apart by the city authorities as a passage way to the market, we think it should have been kept free from nuisances and obstructions, from which damage might result to persons whilst passing and repassing during market hours. But the circumstance that others were passing that way, does not render the city liable to the plaintiff; they were all there at their own peril, if there was no permission to use it for access to the temporary market, and none of them could set up any demand against the city, as for negligence, in respect to its condition as a public [**17]  way.
According to these views, it follows, that the plaintiff's prayer was erroneously granted. It assumes the duty of the city to keep the hole filled up during market hours, when, as we have said, the ground had ceased to be a market place. It was also erroneous in this, that there was no evidence on the subject of care and diligence on the part of the plaintiff, or that he had no other way by which to proceed to the temporary market in safety, or that he pursued the same path usually taken by others. If the city authorities, or those having the market in charge, had indicated this as a way to the temporary market, the city would be chargeable for negligence, if any, in permitting the way to be obstructed by nuisances of this kind, but there is no such evidence. The fact that others used the same route, did not make it a way in the sense that would impose on the city the duty of keeping it clear.
Upon the case, as presented by the evidence, we do not perceive that there is any cause of action against the city authorities. Municipal corporations are responsible, in many cases, for the manner in which the duties of their subordinates may be performed; but it would be extending the [**18]  doctrine beyond the limits of reason and public policy, to enforce responsibility under the circumstances disclosed by this record. To 

 [*238]  say the least, it was imprudent in the plaintiff to have ventured at night, over the site of a recently demolished market house, where he might reasonably have expected to find obstacles and hindrances, from which injury might result to others as well as himself; and where, he must be considered as having known that, the corporation had been doing nothing more than the charter and ordinances authorized, in reference to the erection and regulation of markets.
Having disposed of the case on the appeal of the defendants, it is unnecessary to consider the prayers granted at their instance, from which the plaintiff appealed.
Judgment reversed. 

156 of 196 DOCUMENTS 

ANDREW B. CROSS vs. JACOB TOME.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 247; 1859 Md. LEXIS 73 

July 15, 1859, Decided 

PRIOR HISTORY:
 [**1]  APPEAL from the Circuit Court for Cecil County.

Replevin, brought on the 5th of July 1855, by the appellee against the appellant, for "five horses, five horse-carts, two sets of single harness, one stone wagon, three cranes, one lot of quarry tools, and one lot of quarry fixtures."

The defendant avowed the taking under a distress for rent. The avowry alleges that James Whitelock, for one year next before and ending on the 31st of December 1854, was tenant of the place called "The Quarry," under a demise thereof by the defendant to him, "at and under a certain yearly rent as follows, that is to say, of ten cents per perch for every perch of small building stone which should be taken from said quarry, of fifteen cents per perch for every perch of large building stone which should be taken from said quarry, and of seventy-five cents per perch for every perch of faced stone which should be taken from said quarry," and that Whitelock, during said year, took from said quarry 7400 perches of small building stone, 2000 perches of large building stone, and 900 perches of faced stone, amounting in the whole to $ 1640, of which $ 591, part of the rent aforesaid, for said year, was due [**2]  and in arrear, and for which the goods and chattels in question were taken under a distress.

The plaintiff pleaded, 1st, non demisit; 2nd, that Whitelock did not possess and enjoy the place under the demise; 3rd, that the avowant did not take the goods and chattels as a distress for rent, as alleged in his avowry; 4th, that the avowant took them in his own wrong; and 5th, that part of said goods and chattels were tools and implements of trade in actual use at the time of the taking, and the residue were cattle of the plaintiff, which, at the time of the taking, went upon the premises, then and there being unenclosed by sufficient fences, without the knowledge or consent of the plaintiff. Issues were joined on these pleas.

Exception. The avowant offered evidence to prove the tenancy as alleged in the avowry, and that the whole amount of the rent, for the year 1854, was $ 719.20, of which the tenant had paid $ 128.20, leaving a balance of $ 591, which the tenant, before the distress was levied, had admitted. He then offered to prove by the bailiff, who was authorised to levy the distress, that the distress was laid, and, as a part of the proceedings, offered an account and [**3]  affidavit, which he proposed to show, by the bailiff, was the account on which he proceeded. The account is stated in the opinion of this court. The affidavit and the warrant are as follows:

"CECIL COUNTY, TO WIT:--Be it remembered, that on the 26th day of June 1855, before me, the subscriber, a justice of the peace of the State of Maryland, in and for the said county, personally appeared Andrew B. Cross, and made oath on the Holy Evangely of Almighty God, that James Whitelock, his tenant, is justly and bona fide indebted to him in the sum of $ 591, for rent in arrear and already due to him, and that he hath not received, either directly or indirectly, any part or parcel of the said rent claimed to be due and in arrear, or any security or satisfaction for the same, to the best of his knowledge and belief.

Sworn before   SAMUEL PEACO."

"CECIL COUNTY, June 26th, 1855.

To Wm. Dennison, my Bailiff, Greeting:--Distrain the goods and chattels of James Whitelock, in the quarry occupied by him, and rented of me, which lies on the east side of the Susquehanna river, for $ 591, being balance of quarry rent due to me, on the 31st of December 1854, and for so doing this [**4]  shall be your sufficient warrant and authority.

ANDREW B. CROSS."

To the production of these papers as proof to the jury, the plaintiff objected, on the ground that the paper professing to be the account was not such as was required by the terms of the Act of 1834, ch. 192, which objection the court (PRICE, J.) sustained, and refused to allow the account to be used as evidence, on the ground that it did not sufficiently state particulars, but only a balance of rent. To this ruling the avowant excepted, and the verdict and judgment being in favor of the plaintiff, appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

The rent of a quarry at a certain number of cents per perch, (the amount varying with the quality,) of each and every perch of stone quarried, is a certain money rent within the meaning of the Act of 1834, ch. 192.

An account against the tenant as follows: "To balance of quarry rent, due Dec. 31st, 1855, on the quarry at Rock Run, Cecil county, -- $ 591," sufficiently states the time when the rent became due.

The account of the landlord, required by the Act of 1834, ch. 192, must state when the rent therein claimed became due.

But it is not necessary to state in the account the terms of renting, nor to set down the items showing the whole amount originally payable under the contract, and the credits thereon.

The Act requires the account "to state, in dollars and cents, the amount of rent claimed to be due and in arrear," and this is complied with by stating so much as a balance of rent due and in arrear.

The affidavit prescribed by this Act need not be literally pursued, but it is sufficient if it be substantially followed.

The words in the affidavit prescribed, "except the credits, if any, which have been given," apply to a case where credits have been stated in the account, which may be done, but they do not make it necessary to state debits and credits.

This Act does not require that the account should state the time during which the rent accrued, and it is no objection to an account that it omits to do so.

This Act is not to be construed by the principles applicable to the construction of statutes conferring special remedies in contravention of the common law, but is to receive a sensible construction, looking to the object and design of the Legislature.

The object and design of this Act were to protect the tenant from onerous and oppressive proceedings by the landlord, and to prevent the levying of excessive distress, by requiring the sum claimed, as actually due and in arrear, to be clearly stated and verified by oath.  

COUNSEL:
A. Randall and A. B. Hagner for the appellant:

The objection sustained by the court below was, that the account was not such as was required by the Act of 1834, ch. 192. The first section of this Act prescribes the form of the affidavit to be made by the landlord before making the distress, 1st, where the distress is for a certain money rent, and, 2nd, where the rent is payable in produce. The affidavit in this case is identical in language with that prescribed by the Act in the case of a money rent, and the account exactly follows the 3rd sec. of the [**5]  Act in the case of a money rent. They both specify, "in dollars and cents, the amount of rent claimed to be due and in arrear." The 3rd sec. does not require that the whole year's rent should be first stated in the account and then the credits given, but the account is to state in "dollars and cents, the amount of rent claimed to be due and in arrears." The account, therefore, "states particulars" as fully as the Act requires it should, even if it be only "a balance of rents." In the same manner, by sec. 1st, the landlord must limit his affidavit strictly to the specified amount "which he shall claim to be due," thus intimating the propriety of making mention of no other sum except the particular amount "claimed to be due and in arrear." If, therefore, this is to be regarded as a money rent, there seems to be no objection whatever to the account. That it is to be so regarded seems clear. By its express terms it is payable in money, not in any manner of produce. The character of the rent payable in kind, as mentioned in the Acts of Assembly, is clearly explained by the language of the Acts of 1831, ch. 171, and 1834, ch. 192. The first was intended to apply the right of distress to [**6]  cases "where land shall be rented in consideration of a render of a portion of the crops raised upon the same, or for a specific amount of grain or other produce." By the 2nd sec., the specific amount or quantity of grain or other produce, or proportion of the crops agreed upon as rent, is to be valued, &c. The Act of 1834 speaks in the same way of "the quantity or proportion of produce claimed by the landlord," &c., both laws evidently referring to a renting where the landlord was not to be paid in money but in some product from the land. In the present case, by the express terms of the renting, money and nothing else was to be paid by the tenant. If, therefore, this rent was of either of the descriptions of rent specified in the Act of 1834, it must certainly be considered as a money rent, and if it be a money rent the account and affidavit are fully sufficient. The law says there shall be annexed to the warrant "the account of the landlord." An account is defined to mean "the state or result of a computation." The word means nothing more in this case than in ordinary cases where accounts are produced. Certainly it would be no objection to an account in an action for the recovery [**7]  of a debt before a magistrate, that it only states the balance due. The plaintiff must afterwards fully prove the particulars of his account with all the debits. The words of the Act are, therefore, gratified in this case, for this certainly is an account. The Act proceeds to describe what the account must contain; it shall state in dollars and cents, "the amount of rent claimed to be due and in arrear"--not the items nor the amount which would have been due if payments had not been made, but the amount then claimed to be due. This account is fully in conformity with these requirements of the law. The levying of a distress by a landlord for rent in arrear is not "a summary proceeding authorized by law," as is argued by the other side, but is a right as old as the common law, and all statutes abridging it are to be construed with great strictness. Before the Act of 1834, no account was necessary. That Act requires an account to be annexed to the warrant, and prescribes what it shall contain, and nothing which is not demanded by the Act need be inserted. The Act says nothing of the necessity of setting forth the items, the time from which the renting dates, or any other particulars of [**8]  the renting. How can their absence invalidate an account which contains everything the Act demands? Even if the landlord claimed too much rent as due, he would be compelled to reduce it at the trial of the replevin. If the distress is illegal, an action of replevin easily brings the illegality to light, and the claim of the landlord must be verified by proof. But if he really has a claim, then he is entitled to have it discharged in preference to all other creditors. This landlord framed his account for rent due precisely in conformity with the words of the law, and if it were now to be held insufficient, he will have been entrapped by the very words of the law into the loss of his rent. Nor does the Act require "that credits if any should be stated in the account." It only requires a statement of "the amount claimed to be due," and that he shall make affidavit of "the amount of his, or her, or their rent, claimed to be due." In fact, the whole law seems to exclude the idea that all the dealings between the parties are to be set forth in the account. It wisely left the question as to how much was really due, for the final determination of a jury at the trial of an action of replevin,  [**9]  in which the tenant might dispute the landlord's statement.

Note. The learned counsel also argued, 1st, that if this rent should be viewed as one payable in produce, still the account should have been admitted in evidence. 2nd, that even if this court should decide these papers to be technically incorrect, the ruling below should still be reversed, upon the ground that any defect in the account and affidavit had been waived by the tenant, and, 3d, that this is neither of the rents mentioned in the Act of 1834, but a third description of rent, viz., a money rent not actually certain but capable of being made certain, and, therefore, not comprehended by this Act. The argument on these points is omitted.

Jno. J. Cresswell and Henry W. Archer for the appellee:

The cases of Joynes vs. Wartman, 5 Md. Rep., 195, and Giles vs. Ebsworth, 10 Md. Rep., 333, decide that the sufficiency of the landlord's account in the distress proceedings may be inquired into in actions of replevin, and we contend that this account is defective:

1st. Because it does not state the whole rent due for a certain time, nor the credits to which the tenant was entitled.

2nd. Because the account [**10]  does not state the time for or during which the rent accrued.

1st. Whenever a landlord resorts to this summary proceeding for the collection of his rent, he must be held to a strict compliance with the requirements of the law by which he is authorized to levy for a mere claim not yet ascertained by any judicial proceeding; and where the levy is made upon the property of a third person who is not his debtor, even-handed justice requires that he shall bring himself within the strictest letter of the law. The proceeding by distress for rent is regulated in this State by the Act of 1834, ch. 192, the 5th sec. of which provides, "that every distress made contrary to the provisions of this Act, shall be illegal and void. The first section of this Act requires that the affidavit shall specify the amount of rent claimed to be due, in dollars and cents, but the 3rd sec. requires, in addition to this, that the account of the landlord shall be prefixed to the warrant. The paper in this case is not an account, but a mere statement of a balance, without stating any of the items of debit or credit. The Legislature must have intended to require, in and by the account, a particular statement [**11]  of the entire rent for a certain time, and of the credits, if any; otherwise, it was folly to insist both upon an affidavit and an account. The account would only repeat the affidavit, and contain nothing in addition. A mere statement of a balance cannot be considered an account. The lease in this case was not for any particular and certain amount of rent per annum, but so many cents per perch for the stone that might be quarried, varying according to the quantity and quality of the stone quarried in each year, and in such a case, an account containing the items by which it is made up, is particularly necessary. The intent of the Act is to furnish the tenant, and more especially the stranger whose goods may be levied on, with the means of testing the accuracy of the account, and the latter could never protect himself against a false claim or collusion between the landlord and tenant, if a mere statement that there was a balance of rent due, which the tenant had (perhaps fraudulently) admitted should be considered a sufficient substitute for the account required by the Act. Such an account, to answer any useful purpose, should state the amount of rent, the time for which it is claimed,  [**12]  and the credits, if any, to which the tenant is entitled. The affidavit, as given in sec. 1, shows that this view is correct, because it provides that the landlord shall make oath that he has "not received, either directly or indirectly, any part or parcel of the said rent claimed to be due and in arrear, or any security, or satisfaction for the same except, if any, the credits given." If it were sufficient to charge for a balance of rent, then all the latter part of the affidavit, referring to credits given in the account preceding, would have been totally useless and without meaning.

2nd. But this account does not state when the rent commenced, or when it matured, or whether the sum stated was a balance for a year, or a month, or any other period, but simply that a balance of quarry rent was due on the 31st of December, 1854. For all that appears in the account, the rent might have been due for a half dozen years, and when it fell due, might have been for $ 1,000, or even a greater sum, which, by sundry payments after it fell due, might have been reduced, on the 31st of December 1854, to the balance, as stated in the account. The papers under which the distress is made, should [**13]  show upon their face that the landlord was prima facie entitled to resort to that remedy. It is not in every case of rent in arrear, that the landlord can distrain, and one object in requiring a sworn account, doubtless was to compel him to show in advance, upon the face of his proceedings, that his case was one in which he might distrain rightfully. The account, we contend, should, at least, contain sufficient to admit of the fair inference that the renting, where a money rent is claimed, was at a sum certain for a certain specified time. But here there is nothing, either in the account, affidavit, or warrant, from which we can infer anything in regard to the rate or amount of rent, or the time for which it is claimed. The rent, as stated in the avowry, was ten cents per perch for building stone and seventy-five cents per perch for faced stone, but the account does not state nor furnish the means of ascertaining how many perches there were of each kind. The aggregate amount of the rent for the year is stated in the avowry at $ 1640. In the exception, it is stated to have been $ 719.21, but the account does not state, or furnish the means of ascertaining, what it was. Surely this cannot [**14]  be considered such an account as the Act requires: it is entirely too uncertain. The Act of New York, of 1838, ch. 153, requires only an affidavit that the rent distrained for is due, omitting, altogether, the account, and yet every case in New York sustains the position, that the time for which the rent accrued, must be defined, and, in support of this point, we confidently refer to 15 Wend., 368, Marquissee vs. Ormston. 17 Wend., 417, Jenkins vs. Pell, and same case in 20 Wend., 450, 2 Hill, 648, Smith vs. Fyler.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*255]  BARTOL, J., delivered the opinion of this court.
The decision of this appeal depends upon the construction of the Act of 1834, ch. 192, regulating the mode of levying distress for rent.
The rent reserved was in money, the amount thereof to be ascertained by computation of the quantity and kinds of stone quarried. This, in our opinion, was a certain money rent, within the meaning of the Act. That is certain which may be made certain. Under the statute of New York, which, in this respect, is similar to our own, in a case "where the rent reserved was three dollars per acre [**15]  for all the improved land on the premises, the tenant agreeing to build a certain quantity of stone fence, a part at so much per rod, and the residue for such price as might thereafter be agreed upon by the parties, the whole to be applied towards the payment of rent," it was held that the rent was sufficiently certain within the statute. Smith vs. Fyler, 2 Hill 648.
This being a case within the Act of 1834, the only question before us is, whether the account and affidavit, offered in evidence, 

 [*256]  are a sufficient compliance with its provisions? Three objections are made to the account by the appellee:
1. That the time when the rent became due is not stated.
2. That the account does not state the whole amount of rent, and set out the credits.
3. That the period, during which the rent accrued, is not stated in the account.
The first objection is based upon a misconstruction of the account. In our opinion, it is necessary to state when the rent became due, but, according to our interpretation of the account, that is sufficiently stated. It is in these words:
"BALTIMORE, February 2nd, 1855.
Mr. James Whitelock, To Andrew B. Cross, DR.

________________________________________________________________________________

  To balance of quarry rent due Dec. 31st, 1855, on the	
quarry at Rock Run, Cecil county, which formerly belonged	
to estate of W. L. Cross,	$ 591.00"	
________________________________________________________________________________

 [**16]  
Notwithstanding the ingenious criticism of the appellee's counsel, we think the fair interpretation of this is, that the quarry rent became due the 31st of December 1855, and the balance therein stated is charged as remaining unpaid at the date of the account.
The second objection is not sustained by any thing in the Act of Assembly. The 3rd section requires that there shall be prefixed to the warrant, "an account stating in dollars and cents the amount of rent claimed to be due and in arrear, **** together with an affidavit or affirmation thereon in substance as required by the first section of the Act."
It is not necessary to state in the account the terms of renting, nor to set down the items showing the whole amount originally payable under the contract, and the credits thereon; it is sufficient "to state, in dollars and cents, the amount of rent claimed to be due and in arrear," verified by affidavit.
That has been done in the present case. The form of the affidavit prescribed in the first section need not be literally pursued; if it is substantially followed that is sufficient; the words, "except the credits, if any, which have been given," are designed to apply to a [**17]  case where credits have been stated in the 

 [*257]  account, which may be done, but they do not make it necessary to state debits and credits.
In Smith vs. Tyler, 2 Hill, the affidavit stated a sum due as balance of one year's rent, ending in the month of January A. D., 1840, which the court held to be sufficient.
3. In support of the third objection several cases from New York have been cited, but a reference to them will show they are inapplicable, the provisions of the Act of 1834 being unlike the statute of New York in this particular. By the revised statutes of that State, it is expressly required, that the affidavit specify the amount of rent due, and the time for which it accrued. The decision in Marquissee vs. Ormston, 15 Wend. 368, went upon those words. The court say: "Whatever reasons may have influenced the Legislature, the direction is clear and explicit, that the affidavit shall specify the amount of rent due and the time for which it accrued."
In construing the Act of 1834, we do not think the principle ought to be adopted, which is applicable to the construction of statutes conferring special remedies, in contravention of the [**18]  common law. The right of the landlord to distrain for rent in arrear, in a case like this, is one which he enjoyed by the common law. The Act of 1834 was intended to restrain and regulate that right for the benefit and protection of the tenant, and while its requirements must be complied with, they are to receive a sensible construction, looking to the object and design of the Legislature. These were to protect the tenant from onerous and oppressive proceedings by the landlord, and to prevent the levying of excessive distress, by requiring the sum claimed, as actually due and in arrear, to be clearly stated, and verified by oath. The amount actually due is always open to examination on proof, in the action of replevin. Our Act nowhere requires the time, during which the rent has accrued, to be stated in the account or affidavit; in this respect it is unlike the statute of New York. The time when the rent becomes due, it is necessary to state for the security of the tenant against being called on a second time for the same debt, as well as to show that it is such arrear of rent as may be lawfully collected by distress.

 [*258]  In our opinion, the account and affidavit in this case [**19]  are sufficient, and ought to have been admitted in evidence.
Judgment reversed and procedendo ordered. 

157 of 196 DOCUMENTS 

JOHN C. BRIDGES and HIRAM WOODS vs. CATHARINE MCKENNA, by Prochein Ami.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 258; 1859 Md. LEXIS 74 

July 15, 1859, Decided 

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

The bill in this case, filed on the 28th of September 1855, by Catharine McKenna, a feme covert, in her own name, alleges that she has been for several months, with her own capital and by the credit and kindness of her own friends, in her own name, and as a feme sole, carrying on a grocery business in a store at the corner of North and Baltimore streets, in the city of Baltimore; that by virtue of a fieri facias, issued upon a judgment for $ 613.83, against Peter McKenna, her husband, at the suit of Bridges & Woods, the appellants, the goods, chattels, stock in trade and other matters, whereof a schedule is filed, contained in said grocery store, were taken and carried away by the sheriff of Baltimore city; that the store was thereupon closed, the business of the complainant suspended, and she deprived of the means of support; that her said husband had no interest in said stock of goods, and that the action of the sheriff is attended with great loss to her, and, unless at once relieved, her damages will be irreparable. The bill then prays for an injunction restraining Woods & Bridges, and the sheriff and his deputies, from any further [**2]  action in the execution of this fieri facias, and from interfering with her in regaining possession of said goods and chattels, and from concealing the same from her, and for general relief.

The injunction was granted as prayed, and the appellants, in their answer, admit the issuing of the fieri facias and the taking of the goods as charged in the bill, but deny that the same are the property of the complainant, and insist that they were the property of Peter McKenna, the complainant's husband. They deny that the complainant has been acting as a feme sole, and that the goods were bought with her means or capital, or by the aid of her friends, but allege that the whole arrangement was a scheme resorted by the husband to avoid payment of his debts. They insist that the injunction issued improvidently, that the complainant had full redress at law, and that being a married woman, she could not file a bill in her own name.

On filing their answer, the defendants moved to dissolve the injunction, and, under an order, testimony relating chiefly to the title of the husband and wife, respectively, to the property, was taken, which need not be stated. The case was then heard on the [**3]  motion to dissolve, and the court, (KREBS, J.) on the 15th of July 1856, passed an order sustaining the objection to the bill, that it was brought by a married woman as complainant in her own name, but deciding that under the Act of Assembly relative to amendments in equity proceedings, this defect could be remedied by amendment, and when this was done, a final decree would be passed in the case. The complainant, thereupon, with leave granted on petition, introduced Owen McKenna as her next friend to appear for her in the cause, and afterwards, on the 29th of November 1856, the court passed a decree making the injunction perpetual. From this decree the defendants, Bridges & Wood, appealed.  

DISPOSITION:
Decree affirmed with costs.  

HEADNOTES:

A feme covert holding property to her sole and separate use, under the 8th sec. of the Act of 1842, ch. 293, is entitled to relief, in equity, against execution thereon by creditors of her husband.

This sec. with sec. 3 of the Act of 1853, ch. 245, enable a feme covert to acquire, in the manner there specified, the limited amount of property therein mentioned, and to hold and dispose of the same free from the control or interference of her husband.

Such property is not only exempt from liability for the husband's debts, but is, during the coverture, in no manner subject to his marital rights; the whole estate, legal and equitable, is vested in the wife, subject to her control and disposition, as if she were unmarried.

Though the Act of 1842 enables her to acquire and dispose of such property as a feme sole, yet this Act does not entirely remove her disability; being covert, she cannot sue or be sued in a court of law, as a feme sole.

But, under secs. 2 and 3 of the Act of 1853, ch. 245, she may, in reference to property held by her under sec. 8 of the Act of 1842, or in any other way vested in her, to her sole and separate use without a trustee, have her remedy in a court of law against her husband's creditors, unlawfully subjecting said property to pay his debts.

While, however, the Act of 1853 gives her a remedy at law in reference to such property, it does not deprive courts of equity of the jurisdiction they before had; such jurisdiction is expressly reserved by the Act, its plain design being to enlarge, not to restrain, the remedies of femes covert.

When so suing in equity, the wife should sue as sole plaintiff, by her next friend, and the husband should be made a party defendant, but the omission to make him a defendant will not, in this case, operate to reverse the decree, the objection not having been made in the court below, and the facts showing he would be a mere nominal or formal party.

All property, real and personal, belonging to a married woman at the time of her marriage, and held by her generally, and not limited to her sole and separate use, is, by the Act of 1853, merely protected from the debts of the husband, leaving his marital rights over it in other respects unimpaired.

The wife's remedies under the 2nd section of this Act, with reference to such property, is confined to cases where it is sought to be subjected to the husband's debts, and the form of the remedy must be devised with reference to her disability and the marital rights of the husband.

The legal title, in such a case, being in the husband, that title must be asserted in courts of law by him alone, or jointly with her, where, by the pre-existing law, such joinder was necessary.

She cannot sue alone or by next friend, if the husband refuses to interfere, by suit at law for her protection, but she may sue in equity, by next friend, in any matter within the recognizance of that court, and, in such case, the husband is a necessary party defendant, so that he may have the opportunity of asserting his marital rights.

Whatever appertains to the separate property of a married woman, has always been a peculiar subject of jurisdiction of courts of equity.  

COUNSEL:
Orville Horwitz for the appellants.

As to the jurisdiction of the court: The general proposition must be conceded, that an injunction will not lie to restrain a sale where the goods of A are taken under a fi. fa. against B, at the instance of A. The remedy at law is perfect; replevin will get back the very goods; trespass will make adequate compensation in damages. In order to entitle the court to interfere, there must be some additional equity. Either the [**4]  property itself must be peculiar in its character, and such as no damages can adequately compensate for its loss, or there must be some strong reasons for the retention of the property in specie. The whole doctrine on the subject is so fully and clearly laid down in Allen vs. Freeland, 3 Rand., 170, and Bowyer vs. Creigh, Ibid., 25. The case of Warnick vs. Michael, 11 G. & J., 153, is in strict conformity to the principles above indicated. In that case it was slave property that was about to be sold, and the allegations in the bill were, that the slaves were "favorite servants," and that the complainant feared that they would be purchased by some southern trader and removed beyond "the jurisdiction." And yet, even in that case, the injunction was dissolved by the Court of Appeals, and the bill dismissed, because a clear and undisputed title, above suspicion or doubt, was not shown. The parties were left to their legal rights. It can scarcely be said, in this case, that the title is, beyond question, free from all suspicion of fraud, or, on the other hand, that the groceries were favorite groceries, and had about them a certain "pretium affectionis," that rendered them invaluable and [**5]  above compensation. What then can distinguish this from the ordinary case? One of two reasons, says the appellee: either the fact that the goods taken constituted the whole or a part of a stock of goods, or that the complainant is a married woman. That the place of business, as a store, was not interfered with, is clear. The stock taken was carried away; the furniture and fixtures were left undisturbed. As a store it might have been used and occupied the next day, by the appellee or any one else. There was no interruption of the store as a store. Does the fact that the appellee was a feme covert make any difference in this State? What rights do the Acts of 1842 and 1853 give to married women? The 8th sec. of the Act of 1842, is the only one that can, by possibility, be connected with the present inquiry, and it appears to me that that section was only intended to apply to money or property actually "earned" by the wife's "skill, industry or personal labor," to the extent of $ 1000, and that that skill, &c., must be altogether independent of her husband; that when so earned she should hold it to her separate use. Has that any thing to do with the present case? Is there any thing to [**6]  show that the complainant has earned one dollar? But this Act, as well as that of 1853, ch. 245, has been construed by this court in Schindel vs. Schindel, 12 Md. Rep., 108, 294, and, according to that construction, the marital rights are not interfered with, except that the property of the wife is protected from the husband's debts. The right of possession, disposition, &c., remains with the husband as theretofore. Not only so, but the right to recover in trespass, for the property of the wife taken away, is expressly ruled in that case. The subsequent distribution of the amount of the verdict is left for the future action of the court. If, then, it be true, that the husband could sue or recover for the trespass, or could take back the goods themselves by replevin, after sale, how can it be said there is no adequate remedy at law in this State? Or if the husband and wife jointly could recover the goods, or their value in damages, at law, how can it be successfully maintained that they are remediless at law?

Now the doctrine relied on by the other side shows, that even where the property is held in trust, by the intervention of a trustee, an injunction will not be sustained unless [**7]  the trustee refuses to proceed at law, (25 Ala., 136.) In this State the necessity for the intervention of a trustee is expressly dispensed with by sec. 3, of the Act of 1853, ch. 345, and all remedies at law and in equity, for the protection of her property, secured to her. But it is insisted, that the two cases of McCann vs. Taylor, 10 Md. Rep., 41S, and Holland vs. Mayor & C. C. of Balto., 11 Md. Rep., 186, sustain this injunction. The first of these cases, however, proceeded on very different grounds. The allegations of the bill there charging a fraudulent intent and a desire to cast a shadow on the title to property, and that, too, by a creditor subsequent to the execution of the deed, were said to be sufficient, in the first instance, to warrant the issual of the injunction. In the second case, the principle decided is, that where an attempt is made to sell real property, "under a void proceeding," the court will interfere. If, in this case, it had been alleged that the judgment of the appellants was void, and that under a proceeding absolutely null an attempt was made to sell her property, there might be some similarity, although a distinction is taken in the books between the [**8]  remedy by injunction as to realty and personal property. In regard to the latter, the question of title can at once be disposed of in the action of replevin or trover, or damages obtained for carrying away the goods. In regard to the former, a sale under such a proceeding would cast a cloud over the title that would remain until an ejectment might be brought by the purchaser. The cases in 1 Md. Ch. Dec., 151, Crain vs. Barnes, et al., and 8 Gill, 391, Barnes vs. Compton, are cases between guardian and ward, and trustee and cestui que trust. There can be no question as to the jurisdiction in those cases. There can be no doubt as to the jurisdiction of a court of chancery between a feme covert and her trustee, but the inquiry here is, as stated in the opinion of the judge in Watkins vs. Logan, 3 Monroe, 21, how far does the jurisdiction extend, as between a married woman and third parties? Now it seems that there can be no doubt as to the right of the husband, in his own name, or in an action by husband and wife jointly, to recover damages in trespass or trover for injuries to the wife's property. See 16 Pick., 235, Allen vs. Kingsbury.

But the decree should be reversed for the [**9]  additional reason, that the husband of the appellant is not a party to the proceedings, either as co-complainant or as defendant. Story's Eq. Pl., secs. 61, 63. 7 Simons, 239, Sigel vs. Phelps. There being no necessity in Maryland for the intervention of a trustee, and the marital rights being undisturbed by the Act of 1853, it is a fortiori necessary that those rights should be protected, by compelling him to be a party to all proceedings in which the wife's property is in controversy, either as co-complainant, if their interests are the same, or as defendant, if adverse.

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

1st. That the articles taken under the fieri facias were the goods, chattels and property of the appellee, and were by her held to her own sole and separate use, and having been acquired by her partly by gift and purchase, and partly by her own skill and industry, and personal labor, and in a trade which she carried on in her own name, and on her own capital, were not liable for the debts of her husband, and the seizure and carrying away of the same, on execution against him, was illegal, inequitable and grievously oppressive. Acts of 1842, ch.  [**10]  293, sec. 8, and 1853, ch. 245.

2nd. The remedy by bill in equity and injunction, is the proper one under the circumstances of this case, because: 1st. The Acts complained of threatened an entire destruction of the business, occupation and trade of the appellee, and, therefore, if considered as a mere trespass, constituted a proper case for an injunction. 1 Md. Rep., 525, White vs. Flannigain. 4 Md. Rep., 98, Green vs. Keen. 7 Md. Rep., 408, Shipley vs. Ritter. 2nd. A court of equity has jurisdiction to restrain by injunction, sales, where they are inequitable, or may operate as a fraud on the rights and interests of third parties. 10 Md. Rep., 418, McCann vs. Taylor. 11 Md. Rep., 186, Holland vs. Mayor & C. C. of Balto. 2 Story's Eq., secs. 954, 1387. 4 Gill, 48, Dilley vs. Shipley, et al. 2 Rhode Island Rep., 67, Kenyon vs. Clarke. 2 Ohio, 505, Dudley, et al., vs. Little. 3d. On a bill filed by a married woman by a next friend, a court of equity will restrain, by injunction, the seizure and sale of her separate property, real or personal, on execution against her husband at suit of his creditors. 25 Ala., 136, Bridges vs. Phillips. Ibid., 212, Crabb vs. Thomas. 3 Ala., 498,  [**11]  Calhoun vs. Cozens. 9 Paige, 363, Shirley vs. Shirley. 4th. Whatever appertains to a married woman's separate estate, is peculiarly the subject of equity jurisdiction. 2 Story's Eq., secs. 1367, 1387. 23 Miss., 236, Mitchell vs. Otey. 4 Mylne & Craig, 408, Newlands vs. Paynter. 19 Verm., 410, Porter vs. Bank of Rutland. 5th. The appellee had no adequate redress for her grievance at common law. Being a married woman, she could maintain, in that tribunal, no action in her own name, and her property, taken under the fi. fa. in this cause, not having been held by a trustee for her, her only remedy was by a bill in equity. 2 Story's Eq., sec. 1387. 2 Kent, 164. 1 Chitty on Pl., 28, 29, 31. 11 East., 301, Bogget vs. Frier, et al. 2 Bos. & Pull., 93, Beard & wife vs. Webb, et al. 19 Ala., 618, Jordan vs. Gray. The Act of 1842, ch. 293, does not give the wife a remedy at law for the separate property which it authorizes her to hold and enjoy, and the 8th sec. of that Act was not adjudicated upon in the cases of Schindel vs. Schindel, cited by the appellants. 6th. The Act of 1853, ch. 245, gives no adequate remedy to the appellee at law. But even if it did, this would not destroy the jurisdiction [**12]  already existing in equity, which is expressly reserved by that Act. 1 Story's Eq., sec. 64. 1 Md., Ch. Dec., 151, Crain, et al., vs. Barnes, et al., affirmed in 8 Gill, 391; 23 Miss., 236, Mitchell vs. Otey, et al.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*265]  BARTOL, J., delivered the opinion of this court.
An examination of the facts of this case, as disclosed by the proof, has satisfied us, that the goods and chattels seized and taken under the writ of fieri facias were the property of the complainant, Catharine, held by her to her sole and separate use, under the provisions of the 8th section of the Act of 1842, ch. 293.
The execution was issued at the suit of the appellants to recover a debt due them from Peter McKenna, the husband of the complainant. The right of property in the wife being, in our opinion, clearly established by the evidence, the only question for us to consider is, whether she is entitled to relief against the execution by proceeding in a court of equity?
The 8th section of the Act of 1842, declares, that the property acquired by a married woman, in the mode specified, to the value of one thousand dollars [**13]  or less, with the fruits, increase and profits thereof, "shall be held by her, to her sole and separate use, with power, as a feme sole, to invest and re-invest, and sell and dispose of the same."
The 3rd section of the Act of 1853, ch. 245, provides, "that it shall not hereafter be necessary to interpose a trustee, in order 

 [*266]  to secure to a married woman the sole and separate use of her property."
There can be no difficulty in construing these sections; their plain purpose and intention were to relieve the disability which was imposed by the common law upon a married woman, and to enable her to acquire, by her skill, industry and personal labor, a limited amount of property, and to hold and dispose of the same free from the control or interference of her husband. Such property is not only exempt from liability for his debts, but it is, during the coverture, in no manner subject to his marital rights. He is not her trustee; no trustee is necessary, as at the common law, for the purpose of supporting the separate use. The whole estate, legal and equitable, is vested in her, subject to her control and disposition, as if she were unmarried. This is not in conflict with [**14]  the decision of this court in the case of Schindel vs. Schindel, 12 Md. 294, cited and relied upon by the appellants as establishing a different construction of these Acts of Assembly.
An examination of the opinion of the court pronounced in that case will show, that the Reporter, in making his synopsis of the decision, has not stated the points ruled by the court, with his usual precision and accuracy. The construction of the 8th section of the Act of 1842, was not involved in that case. It was a controversy between the husband and wife; the property in dispute was not held to her sole and separate use, but was the real and personal estate belonging to her while sole, which she claimed to hold, after marriage, exclusively as her own, exempt from the marital rights of her husband, by virtue of the provisions of the Constitution and of the Act of 1853, and the whole extent of the court's decision was, that such property was, under the Act of 1853, exempt from the debts of the husband, his marital rights over it, in other respects, remaining unimpaired. That decision has no application here. As we have seen, the title of Catharine McKenna, the complainant, to the [**15]  property taken in execution, arises under the 8th section of the Act of 1842, which, in express terms, entitles her to hold it to her sole and separate use. While that section provides a remedy for her creditors, 

 [*267]  by proceeding in the nature of attachment against her property, it is silent as to the mode by which her rights over it are to be protected and enforced in a court of justice. In this respect she is left, by the Act of 1842, to her ancient remedies. The statute enables her to acquire and dispose of certain property as a feme sole, but does not entirely remove her disability. Being covert she cannot sue or be sued in a court of law as a feme sole. See 2 Story's Eq., sec. 1367. Her position is not unlike that of a feme covert sole trader under the custom of London, and in Beard vs. Webb, 2 Bos. & Pull. 93, it was held that such sole trader could not sue or be sued alone at law.
Whatever appertains to the separate property of a married woman has always been a peculiar subject of jurisdiction of courts of equity. In 2 Story's Eq., secs. 1385, 1386, the learned author, after speaking of the rights and liabilities of [**16]  a wife, under an agreement with her husband, made before or after marriage, whereby she is authorized to carry on trade on her sole account, says in sec. 1387: "We here perceive that the law will give effect to such agreements, only when those forms have been observed which will vest the property in parties capable of enforcing the proper rights of the wife in legal tribunals, as is the case where the property is vested in trustees, for her sole use and benefit, in order to enable her to carry on trade. But courts of equity will go further, and if there is any such agreement, before marriage, resting in articles and without trustees, by which she is permitted to carry on business, on her sole and separate account, or, if without such ante-nuptial agreement, the husband should permit her, after marriage, to carry on business, on her sole and separate account, all that she earns in trade will be deemed to be her separate property, and disposable by her as such, subject however to the claims of third persons properly affecting it. In the former case, the earnings will, in equity, be supported for her separate use, against her husband and his creditors; in the latter, against him only,  [**17]  unless the permission, after marriage, arises from a valuable consideration." What might have been done by ante-nuptial contract, the Act of 

 [*268]  1842 was designed more effectually to accomplish, and we perceive no sound reason why a court of equity may not support and protect the separate use of the complainant against the creditors of her husband.
In the case of Bridges & Co. vs. Phillips, 25 Ala. 136, and in Crabb's Adm'r, vs. Thomas, Ibid., 212, it was held that "a married woman may come into equity, suing by her next friend, to protect her separate property from levy and sale under execution against her husband." In the former case, the equitable relief was granted upon the ground that her trustee refused to interpose a claim at law, and in the latter, because she had no trustee to protect her interest at law; and, in each case, we think the ruling of the court was consistent with reason and authority. See, also, 9 Paige 363, Shirley vs. Shirley. In deciding that the complainant is entitled to the relief prayed by her bill, we do not mean, in any manner, to impugn the doctrines so ably announced in the cases cited from [**18]  3 Randolph 25 and 170, and which have been repeatedly recognized by this court. But the jurisdiction of courts of equity to interpose for the protection of the separate property of a married woman, from the execution of her husband's creditors, has always been asserted on the ground that, by reason of her disability, she had not a complete and adequate remedy at law.
It has been argued that under the 2nd section of the Act of 1853, ch. 245, the complainant may have complete redress in a court of law, and, therefore, a court of equity ought not to interfere. That section provides, "that, in order to effect the objects of the foregoing section, the wife shall have the benefit of all such remedies, for her relief and security, as now exist, or may be devised in the courts of law or equity of this State."
The object of the first section is to exempt the wife's property from liability for the husband's debts. It comprehends all property, real and personal, belonging to a woman at the time of her marriage, and all property acquired or received by her after marriage in any of the modes prescribed in the Act. Its language is comprehensive enough to embrace, as well property held by her [**19]  generally and not limited to her sole and 

 [*269]  separate use, as all property held by her to her sole and separate use, whether acquired under the 8th section of the Act of 1842, or by any other mode.
As to property of the former class, we have said it is merely protected from the debts of the husband, leaving his marital rights over it, in other respects, unimpaired. It follows, therefore, that, under the second section, the remedies for her relief and security, with reference to such property, must be confined to cases where it is sought to be subjected to the payment of her husband's debts, and that the form and manner of the remedy must be devised with reference to her legal disability and the marital rights of her husband. The legal title being in him, that title must be asserted in courts of law by him, either alone, or jointly with her, where, by the pre-existing law, such joinder was necessary. She cannot sue at law, alone or by next friend, if the husband refuses to interpose, by suit at law, for her protection. She may sue in equity, by next friend, in any matter properly within the cognizance of such court, and the husband, in such case, would be a necessary party [**20]  defendant, so that he may have an opportunity of asserting his marital rights.
With reference to property held by the wife under the 8th section of the Act of 1842, or in any other way vested in her, to her sole and separate use, without any trustee, we consider her condition and rights materially altered by the Acts of Assembly to which we have referred.
At the common law, wherever property was so limited to a married woman, as courts of law could notice only the legal title, they could take no cognizance of such separate use, and, in courts of equity, it was supported by treating the husband as her trustee.
By the 3rd section of the Act of 1853, as we have before said, no trustee is necessary, and she may hold both the legal and equitable title, and, under the 2nd section, she may have her remedy, in a court of law, as a feme sole, against the creditors of her husband unlawfully subjecting to the payment of his debts her sole and separate property.
And, in the case before us, the complainant, Catharine, 

 [*270]  might resort to her action at law. But the conclusion which the appellant's counsel draws from this construction of the Act of 1853, by no means follows. The [**21]  Act gives her a remedy at law, but does not deprive the court of equity of the jurisdiction which it before had. That is expressly reserved by the Act, its plain design being to enlarge, not to restrain, the remedies of femes covert. See 1 Md. Ch. Dec., 151, 154. 8 Gill, 391.
The only remaining objection to the decree below, urged by the appellant's counsel in his argument, is, that the husband, Peter McKenna, is not a party to the proceedings, either as co-plaintiff or as defendant. The rule on this subject is plainly stated in the 63rd sec. of Story's Eq. Pl., relied upon by the appellants. It is there said, "she ought to sue as sole plaintiff, by her next friend, and the husband should be made a party defendant, for he may contest that it is her separate property, and the claim may be incompatible with his marital rights."
This objection was not made by the respondents in the court below. The bill was originally filed by Catharine, in her own name. The objection was made in the answer that, being covert, she could not sue in her own name. The Circuit court thereupon ordered the bill to be so amended as that the complainant [**22]  might sue by her next friend, and the amendment was made. However proper it would have been, according to the established rules of practice, to make the husband a party defendant in the cause, we think the decree ought not to be reversed by reason of such an objection, urged, for the first time, in the appellate court. The proceedings clearly show that, in this case, he would be a mere nominal or formal party, and the "non-joinder of such party will often be dispensed with, if entire justice can be done without him." Story's Eq. Pl., sec. 229. See, also, secs. 221, 542. 2 Gill 319.
Decree affirmed with costs. 

158 of 196 DOCUMENTS 

JACOB REESE and WILLIAM FISHER vs. THE BANK OF COMMERCE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 271; 1859 Md. LEXIS 75 

July 15, 1859, Decided 

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

The bill in this case, filed on the 17th of November 1855, by the Bank of Commerce against the appellants, alleges that Francis M. and Henry F. Baughman were owners of sixty, and Jacob F. Kridler of thirty-two, shares of its capital stock; that the defendant, Fisher, on the 4th of December 1854, presented to the cashier of the bank a power of attorney from the Baughmans, accompanied by the certificate for the stock for the transfer to the defendant, Reese, of forty shares of stock, but the bank declined to allow the transfer to be made until a debt of the Baughmans, of $ 830.44, due the bank, was first paid; that Fisher, on the same day, also presented a power of attorney from Kridler, for the transfer to Fisher of thirty-two shares of stock, standing in the name of Kridler, but the bank also declined to allow this transfer to be made until a debt of $ 277.48, due by Kridler to the bank, was first paid, and that Fisher refused or neglected to pay either of these sums. The bill further charges that, since the 4th of December 1854, the Baughmans have become further indebted to the bank, upon paper discounted prior to that date, in [**2]  the sum of $ 1130.44, making their entire indebtedness, now due the bank, $ 1960.88, and that Kridler, since that date, has also become further indebted to the bank, upon paper discounted prior to that day, in the sum of $ 400, making his entire indebtedness, now due the bank, $ 677.48. The bill then alleges that the bank, by its charter, has a lien upon the stock of the Baughmans and Kridler for the payment of the amounts now due by them respectively, and prays that a decree may be passed for a sale of this stock for payment of the amounts so claimed.

The defendants, in their answer, admit that Fisher, acting as agent for Reese, presented to the bank the respective powers of attorney and certificates mentioned in the bill, and that the bank, through its officers, refused to permit the transfers to be made until the debts alleged in the bill to be due by the Baughmans and Kridler, respectively, were first paid, and that such transfers have never yet been made. They then state that these powers were executed by the Baughmans and Kridler, respectively, on the 27th of September and the 23rd of October 1854, and, with the accompanying certificates, were delivered to Fisher, as agent [**3]  of Reese, as collateral security for two notes of the Baughmans and Kridler, respectively, of $ 700 and $ 500, discounted on those days by Reese, which notes are now due and wholly unpaid and unsecured except by these powers and certificates. They further state that on the 4th of December 1854, whilst so refusing to permit the transfers to be made, the officers of the bank declared that the bank held sundry collaterals in its hands, out of which, or some of which, as suggested by them, the respective accounts of these parties would probably be made good to the bank, and the then president of the bank advised that matters should be permitted to remain in their then condition for the time being, until it should be ascertained what might or would be realized by the bank from such collaterals, and that Fisher acquiesced in the course so advised, and, for a period of some months, nothing further was said or done in the premises; that afterwards, and shortly before this bill was filed, Fisher again called and desired the transfers to be made, when the bank again refused, unless the full augmented amounts of the alleged respective debts of the Baughmans and Kridler to the bank, were first [**4]  paid, and as the sums, then demanded, greatly exceeded, in each case, the value of the stock embraced in each certificate, payment thereof was declined and refused by the respondents. Fisher, answering for himself, says that if, upon investigation, he had found the asserted indebtedness of Kridler to be, as alleged on the 4th of December, he would undoubtedly have paid it on that day, and procured a transfer of the thirty-two shares, inasmuch as the value of the stock exceeded the alleged debt, but, in consequence of the aforesaid statement that the bank held sundry collaterals, he forebore to make any investigation, at that time, into the alleged indebtedness of either of these stockholders, and readily acquiesced in the advice of the then president of the bank, as being judicious and expedient, and so acquiesced, in confidence, that such representations were, in all respects, true. The answer does not admit the alleged indebtedness of the Baughmans or Kridler, and does not concede that the bank, according to the tenor and effect of these certificates, has any such lien, as claimed in the bill. It further states that, at the time these powers and certificates were received, they were [**5]  accepted in good faith, without notice of any indebtedness of the respective stockholders to the bank, and without notice of the dealings or transactions of them, or either of them, with the bank; that, when the application was made for the transfers, on the 4th of December 1854, no notice or intimation was given or made to either of the respondents, that the alleged indebtedness of either of these parties would, or might be, augmented by, or in consequence of, any other dealings and transactions of either of them with the bank; but, on the contrary, the suggestion was, that collaterals were held by the bank, out of which, as suggested, the bank would probably realize funds to extinguish or diminish the asserted claims of the bank against both of these stockholders, and respondents are advised that even if the alleged lien of the bank is good in law, as to the amounts really due when the transfers were applied for, still the subsequently accruing indebtedness of these parties, even if shown to exist, cannot be validly claimed as against the respondent, Reese, first, because the right of lien is limited to what was then due when the transfers were applied for, and, secondly, because [**6]  even if the law be otherwise, under other circumstances, yet the statement and declaration aforesaid, and the absence of notice of the material fact, that, by delay, the indebtedness of these stockholders might become augmented, would debar the bank from enforcing such lien.

The cashier and book-keeper of the bank were examined as witnesses, and proved that on the 4th of December 1854, the Baughmans were liable to the bank for $ 830.44, on account of repeated previous over-drafts, by checks, and that Kridler, on that day, was liable to the bank for 277.48, also, on account of such over-drafts; that the bank, at that time, kept no tickler or other book, to show the state of the accounts of its customers; the books were probably a month behind; when a party over checked, and the fact became known to the book-keeper, it was reported to the president or cashier, and the latter says he thinks the fact that these parties had over-checked, was reported to him several times. The additional claim against the Baughmans arises from a note of Edward Wools, for $ 350, by them endorsed, and discounted for their benefit. This note, dated the 13th of October 1854, at four months, became due on [**7]  the 16th of February 1855. The additional claim against Kridler, arises upon his note for $ 400, endorsed by the Baughmans and discounted by the bank. This note, dated the 11th of October 1854, at three months, became due on the 14th of January 1855, and is, also, by the bill, made a claim against the Baughmans. The cashier also proves that the application for the transfers, on the 4th of December 1854, was not made by Fisher, but by some one in his behalf, and that witness declined transferring the stock on account of the indebtedness of the Baughmans and Kridler to the bank; he did not state the amount of such indebtedness to the person making the application; that question was not asked him; at the time this application was made, the bank held no collaterals of either of the holders of the stock, and witness did not make any statement to that effect to the person applying for the transfer; the application was made to the transfer clerk in the first instance, who referred the person making it to witness; the refusal to transfer was absolute--there was no condition; just before the institution of this suit, an offer was made to pay Kridler's debt, of $ 277.48 and interest, but witness [**8]  declined to make the transfer.

The powers of attorney to transfer the stock were in blank, and the certificates for the stock are signed by the president and cashier, and under the corporate seal of the bank, and are in this form:

"Be it known, that F. M. & H. F. Baughman are entitled to forty shares in the capital stock of the Bank of Commerce, transferable only at said bank, personally or by attorney, on surrender of this certificate. Witness, the seal of the President, Directors & Co., of the said Bank of Commerce, this fourteenth day of July 1854."

By its charter, (Act of 1854, ch. 235,) it is provided that the aforesaid bank "shall be entitled to all the rights, powers and privileges, and be subject to all the duties, restrictions, limitations and conditions of the several banks comprehended in the Act of 1853, ch. 441, entitled "an Act to continue the corporate existence of the several banking institutions therein mentioned." The provision of this latter Act, in relation to the transfer of stock, is the 16th Art. of sec. 4, as follows:

"Art 16. That the shares of the capital stock of the corporation shall be transferable on the books of the corporation only,  [**9]  according to such rules as shall be established by the president and directors, but all debts actually due and payable to the corporation by a stockholder requesting a transfer, must be satisfied before such a transfer shall be made, unless the president and directors shall direct to the contrary."

The court (KREBS, J.) passed a decree that the stock mentioned in the proceedings, "be sold to pay the several claims against said stock, of the complainant," and appointed a trustee to make the sale, on ten days' notice, "for cash," and that the stock should be transferred to the purchaser, "free, clear, and discharged of all claims of the parties." From this decree the defendants appealed.  

DISPOSITION:
Cause remanded.  

HEADNOTES:

The charter of a bank provided that its shares of stock "shall be transferable on the books of the corporation only, according to such rules as shall be established by the President and Directors, but all debts actually due and payable to the corporation, by a stockholder requesting a transfer, must be satisfied before such transfer shall be made, unless the President and Directors shall direct to the contrary. HELD:

1st. That this lien on the stock is not waived by the form of a certificate for stock declaring that the stockholder "is entitled" to ----- shares of stock "transferable only at said bank, personally or by attorney, on surrender of this certificate."

2nd. The assignee of a stockholder takes his equitable assignment, subject to the rights of the bank, against the stockholder, under its charter, of which he is bound to take notice.

3rd. This lien attaches to balances due the bank by the stockholder, for overdrafts on checks, but not to notes or bills on which the stockholder may be a party, as maker or endorser, not due at the time the transfer is demanded.

4th. The words, "debts actually due and payable," imply more than mere indebtedness; the indebtedness contemplated is only a debitum solvendum in presenti, not in futuro.

5th. Where an assignee demands a transfer, but refuses to pay the debts then due the bank by the stockholder, and afterwards makes a second demand when other notes of the stockholder had become due and payable, he cannot obtain a transfer without paying all the debts due at the time of the last demand.

It is no objection to a decree for the sale of stock, to pay debts due by a stockholder to the bank, that it did not give the defendants a day within which to pay the same; the Act of 1785, ch. 72, sec. 3, has no application to such a case.  

COUNSEL:
Wm. Fisher and Wm. Schley, for the appellants, argued:

1st. Even if a bank, which had not waived the right, could validly claim a lien, under the 16th Art., of sec. 4, of the Act of 1853, ch. 441, for debts actually due and payable by a stockholder, requesting a transfer of stock, yet this bank, by the exigency and tenor of its certificate for this stock, had effectually waived this right. This law says, such debts shall be satisfied before a transfer is made, "unless [**10]  the President and Directors shall direct to the contrary." The bank has, therefore, the power to waive any such indebtedness, and may antecedently waive this lien, if it chooses so to do, and this, we insist, it did by this certificate. The certificate is evidence of the ownership of the stock; it says the parties "are entitled" to so many shares of stock, "transferable only at said bank, personally or by attorney, on surrender of this certificate." The only conditions of the transfer here prescribed are, that it shall be done at the bank, and the certificate delivered up, and by prescribing these as the only conditions the bank has waived the lien secured to it by its charter for all time to come. It is to be observed, also, that the bank here comes as complainant, and asserts the lien against a bona fide purchaser without notice, and, therefore, this case differs materially from one where the bank is a defendant, and in its answer swears that the form of the certificate was not intended as a waiver of the lien, as was the case in 2 Wheat., 390. It may be that as between the bank and the stockholder the lien is not waived, but a bona fide assignee, without notice, stands in a different [**11]  position, and this court would establish a wholesome rule by declaring banks should not put forth certificates of this kind --representations which are not true on their face--and hold them to the strict letter of such papers. We therefore rely, in support of this proposition, upon the maxim, "Unusquisque potest renunciare juri pro se introducto," and upon the doctrine, that a bona fide purchaser for value, without notice, is not bound by a secret extrinsic equity; and the further doctrine, that a party making a representation, on the basis of which another has acted, is bound, by estoppel in pais, not to claim against his representation; and also upon the maxim, "Expressio unius est exclusio alterius," and the following authorities: 7 G. & J., 310, Hodges vs. Planters Bank. 5 Gill, 499, Hall vs. United States Ins. Co. 8 Pick., 90, Sargent vs. Franklin Ins. Co. 15 Sergt. & Rawle, 143, Grant vs. Mechanics Bank. 17 Sergt. & Rawle, 286, Sewall vs. Lancaster Bank. 5 Barr., 348, Presbyterian Congregation vs. Carlisle Bank. 1 Cromp. & Mees., 808, Roberts vs. Barker.

2nd. But if the lien existed and was not waived, still this law was not intended to embrace a claim for an overdraft by [**12]  a customer, knowingly permitted or negligently allowed to be made. A claim of this character is not "a debt" actually due and payable to the bank by the stockholder, within the meaning and policy of the law. An overdraft is not a debt but a tort--a violation of duty--and it was not within the authority of the bank's officer to let the party have the money. If a stranger had come with the check and got the money, it would have been the bank's money obtained against its will, and it could recover the same from the party so obtaining it. 3 Gill, 96, Merchants Bank vs. Marine Bank. The act of elect to call it a debt, let it adopt the contract in its entirety, the cashier in paying was a tort, and if the bank chooses to and call it money loaned without security. It must be a debt which, in the ordinary acceptation of the term, arises from contract, and such a tort as this cannot be called a contract, or elected so to be, except by the knowledge and consent of the stockholder. The remedy of the bank was against the officer on his bond. On this point see 7 H. & J., 381, Eichelberger vs. Finley; 7 G. & J., 138, Union Bank vs. Cochran; 1 Pet., 46, Minor vs. Mechanics Bank of Alexandria; Grant [**13]  on Banking, 27, in 93 Law Lib.; Miller on Mortgages, 26, in 47 Law Lib.; Cross on Lien, 45, in 34 Law Lib.; 7 H. & J., 320, Kemp vs. McPherson, and Merchants Bank of Balto. vs. The Farmers Bank of Virginia, stated in 10 Md. Rep., 124.

3rd. If our first and second points be well taken, it follows as a consequence, that the refusal of the bank to allow the transfer, on the 4th of December 1854, was unwarranted and unlawful. The presentation of the power, and the possession of the certificate, and offer to surrender it to the bank, fixed the right of Reese to the stock in equity. 1 Ves. Jr., 281, Yeates vs. Groves. The Baughmans were merely endorsers on the notes of Wools and of Kridler, and were, therefore, only contingently liable. It cannot be said that this contingent liability constituted, in either case, a debt, "actually due and payable," to the bank by the Baughmans. Due demand, non-payment by the makers, and notice, were necessary to fix their liability. Besides this, neither note was due and payable at that time. The words, "actually due and payable," mean something more than mere indebtedness; they import an immediate right of action. Kridler was, undoubtedly, indebted [**14]  to the bank, on the 4th of December 1854, upon the note which became due on the 14th of January 1855, but his debt was not then actualty due and payable. It was, "debitum in presenti solvendum in futuro." The right to refuse to allow a transfer does not exist in relation to any and every debt, but only in relation to a debt actually due and payable. On this point, see 2 Peere Wms., 207, Child vs. Hudson Bay Co.; 5 Gill, 499, Hall vs. United States Ins. Co.; 15 Sergt. & Rawle, 143, Grant vs. Mechanics' Bank; 3 How., 483, Black vs. Zacharie.

4th. But, even if the amount of the over-drafts can be considered as a debt "actually due and payable," still the right of Reese was fixed on the 4th of December 1854, and his neglect to pay the amounts claimed, did not impair his equitable right. Immediate payment was not a condition precedent to the accrual of his right in equity to the stock subject to the lien of the bank. Whether he paid, or whether the bank enforced payment to the extent of its lien, was precisely the same, that is, the amount of the lien, as it existed on that day, and interest thereon until paid. This decree, however, enforced the lien for the whole amount claimed by [**15]  the bank against both parties, including the notes which became due after the bank had full notice of the equitable title of Reese.

5th. The decree in directing a sale of the stock, without affording the defendants an opportunity to pay the lien, and without affording a reasonable time to do so, was contrary to the practice of a court of equity in cases of this description. 2 H. & G., 96, David vs. Grahame. 2 Danl. Ch. Pr., 1204. 12 Md. Rep., 283, Porter vs. Timanus.

6th. The decree was clearly wrong, in allowing the claims of the bank against the stock, as the bank claimed against the Baughmans an amount which included Kridler's note for $ 400, and the claim against Kridler also included the same note.

Jas. Malcolm and Geo. Wm. Brown, for the appellee, argued:

1st. That the bank had a lien by its charter on this stock for the debts due by the stockholders respectively at the time of the application of Reese on the 4th of December 1854, for the transfer, and neither the appellants nor the stockholders having paid or offered to pay the amount then due by such stockholders, and not having subsequently paid or offered to pay the same, and having made no subsequent [**16]  application for a transfer to time of filing this bill nor before decree, the bank was entitled to have the stock sold to pay the whole existing indebtedness for which the same was liable at the time the bill was filed. The lien thus given is a statutory lien on the stock. But it is said the form of the certificate is a waiver of this lien. This is not so. The bank had no right to make a general waiver even if it has done so. It may do so in particular cases for special reasons, but this certificate is not such a case of waiver, and this was expressly decided in Farmers Bank vs. Iglehart, 6 Gill, 56. See also on this point 2 Wheat 390, Union Bank vs. Laird; 10 Pet., 596, Brent vs. The Bank of Washington; 22 Wend., 362, Commercial Bank of Buffalo vs. Kortright; 12 Sergt. & Rawle, 77, Rogers vs. The Huntingdon Bank; 2 Wels., Hurls. & Gor., 740, Hague vs. Dandeson; 3 Kernan, 599, Mechanics Bank vs. New York & New Haven Rail Road Co.

2nd. That at the time of the application for the transfer on the 4th of December 1854, the amounts claimed by the bank, was a debt actually due and payable, and the appellants having neglected or refused to pay the amount of the then existing indebtedness,  [**17]  they subjected the stock to the other claims then running to maturity. The cases already cited under the first point fully establish the position that an overdraft is a debt. On this point see also 3 Strob., 403, Bank of St. Mary's vs. Calder; 2 Hill, (N. Y. Rep.,) 220, Denny vs. Manhattan Co.

3rd. That the appellants cannot rely upon the application for a transfer made on the 4th of December 1854, nor was the bank bound to allow it upon such application, as the power of attorney upon which the application rested was in blank, and no person named therein as attorney or assignee. 11 Barb., 580, Dunn vs. Commercial Bank of Buffalo.

4th. That the decree is not erroneous in directing a sale of the stock without giving a day for the appellants to pay the liens thereon. The Act of 1785, ch. 72, sec. 3, does not apply to cases of sales of personal property.  

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

OPINIONBY:
TUCK 

OPINION:

 [*280]  TUCK, J., delivered the opinion of this court.
It is not denied, on the part of the appellants, that the bank has a lien on stock for the payment of debts of stockholders; but it is insisted, 1st, that the lien in this case was waived [**18]  by the form of the certificate: and 2nd. that if not 

 [*281]  waived, the lien does not attach to balances due for overdrafts on checks, nor to notes or bills on which the stockholder may be a party as maker or indorser, not due at the time the transfer may be demanded.
The first of these positions must be determined against the appellants upon the authority of Farmers Bank of Md. vs. Iglehart, 6 Gill 50. That charter provides, that, "all debts actually due to the company by a stockholder offering to transfer, must be discharged before such transfer shall be made." It was held that the power to withhold the transfer could not be questioned, and that the predicament of Iglehart was precisely that of the stockholder under whom he claimed. "For dealing with a stockholder of the company in reference to his stock, he is held to have taken his equitable assignment subject to the rights of the bank, under the Act of incorporation, of which he was bound to take notice." The same doctrine had been established in the cases of Union Bank vs. Laird, 2 Wheat. 390. Brent vs. Bank of Wash., 10 Peters 616, where the bank charters provided [**19]  that, "all debts actually due and payable to the bank, (days of grace for payment being passed,") should be satisfied before the transfer could be made, unless the president and directors should direct to the contrary. As the debts alleged against the stockholders were overdue, no question was made as to the phraseology of the clause under which the transfer was resisted. The charter of the present appellee, provides for the payment, before the transfer, of "all debts, actually due and payable, to the corporation." The first proposition of the appellants must be taken as covered by the decisions referred to, because, if the form of the certificates had been deemed as a waiver of the lien, the claims of those banks could not have been enforced. They are substantially the same with the one before us, as far as concerns the present question, and should receive the same interpretation. The 16th Article looks to an express waiver by the president and directors, and, although in 7 Gill & Johns. 310, Hodges vs. Planters Bank, the court held that the privilege might be waived, there was no intimation that the certificate had 

 [*282]  such effect, notwithstanding the [**20]  charter of the bank--Act of 1817, ch. 16--contained a similar provision.
We do not concur with the appellants, that this lien cannot be asserted against stock for balances due by the owners for over-checks. As far as the defence may rest on want of notice on the part of the assignee, it can make no difference to him how the indebtedness may have arisen--whether by over-drafts or as maker or endorser of notes, because the same means of information are open to him in either aspect of the transaction. His condition, at the time of the assignment, would be the same. He is presumed to have taken his equitable assignment, subject to the rights of the bank against the stockholder, of which he is bound to take notice. The certificate furnishes no information what these rights may be; his reliance must be on application at the bank, and if he proceeds in ignorance, it is his own fault. Can it be said that a customer whose checks are honored at the counter, is not indebted to the bank for amounts so overdrawn? It may be done inadvertently, or to save the credit of the drawer, when it becomes a debt of the highest degree, though not entitled to greater respect in the courts. The charter speaks [**21]  in general terms of "all debts actually due and payable." Over-payments on checks are due and payable immediately, and as much within the protection of the charter, as being secured by the stock, as if they originate in any other way. It is true, that a bank officer cannot pay over-checks without committing a breach of duty, for which his official bond may be liable. Minor vs. Mechanics Bank of Alexandria, 1 Peters 46; but that is not the only remedy. In the very case mentioned by the counsel, Merchants Bank of Balto. vs. The Farmers Bank of Va., not reported, but set out in the case of Boyd vs. McCann, 10 Md. 118, the holder of a check, endorsed "good," by the cashier, when the drawer had no funds to his credit, recovered against the bank on which the check was drawn. The unauthorized act of the officer was not allowed to prejudice an innocent party. Can it be possible that whilst the bank is liable to pay the check, and has a remedy over against the officer, the party benefitted 

 [*283]  may escape? Such a transaction does not belong to the class in which a corporation seeks to recover on a contract not authorized by its charter; it [**22]  does not rest on contract at all, but on the principle, that the person charged is in possession of funds or property of another, which should be surrendered or returned to the true owner.
But we are of opinion that the lien did not attach to paper not due at the time the transfer was demanded. The words are, "debts actually due and payable to the corporation." They imply more than mere indebtedness, and it has been so decided in a similar case. By the 9th sec. of the charter of the United States Insurance Company, it is declared, "No stockholder, indebted to the company, shall be permitted to make a transfer or receive a dividend, until such debt be paid or secured." In Hall vs. U.S. Ins. Co., 5 Gill 484, it was held that "instalments, not called in, constituted no such indebtedness as was contemplated by the Act of Assembly. It contemplated only a debitum solvendum in presenti, not in futuro." There the words might have embraced any indebtedness; here they are restricted to "debts actually due and payable." We think that the language admits of no other construction. It is true, that in the case of Brent vs. Bank of Washington, 10 Peters, the [**23]  court said that "the signature of a party to a note is an inchoate pledge of his stock for security; his stock gives credit to his name, and the bank grants the loan on its faith;" but that was a controversy between the bank and the United States, in fact, claiming priority under an Act of Congress, the deed of trust which covered the stock having become inoperative by non-acceptance by the trustees, and did not involve any question between the bank and parties, as here, claiming under an assignment executed before the note became due. It was held, that as between the bank and the government, the equitable lien of the former should prevail.
This view, however, cannot aid the appellants, because they did not pay what the bank had a right to demand at the time the certificates were first presented for a transfer of the stock; 

 [*284]  and when a second demand was made, other notes of the stockholders had become due and payable, which the assignees declined paying. The words in which this privilege is given, are plain, and admit of no doubt; they are obligatory, and require payment before the transfer can be made, except, of course, in those cases where the privilege is waived, and [**24]  here there is no such waiver. The stock stood as security for the debts, and the assignee could not demand a transfer of the stock, which would be a surrender of the security before the corporation was satisfied. It was not then satisfied, and had not been when the bill was filed to enforce the lien. And it is not until the bank is seeking to avail itself of the security, that the appellants are willing to submit to the terms of the charter. We are not prepared to say that, if they had, before the other notes became due, offered to redeem the stock, by paying the indebtedness up to the 4th of December, they would not have been allowed to do so; but they cannot, after the charge upon the stock has been increased by the falling due of other paper, claim to be remitted to their condition on the 4th of December. The stock must stand pledged for all the indebtedness due at the time the last demand for transfer was made.
There was no obligation on the court to have given the defendants a day to pay the debts. The Act of 1785, ch. 72, sec. 3, has no application. It was within the discretion of the court to prescribe the terms of the sale, and the assignees might have paid the claim at any [**25]  time after the decree. Actual sales of stock are usually made for cash, and when these shares became forfeited, there was no right in the debtors, or those claiming the stock, to have a day appointed, within which it might be redeemed.
The objection that the decree allowed the claims of the bank, when the bill had claimed the same sum twice, is of little importance, and does not entitle the defendants to a reversal, since the Act of 1832, ch. 302.
As part of the debt was due, the decree should be allowed to stand. In sending the cause back, the court can protect the parties against a sale for more than is necessary to pay 

 [*285]  the sums due, or the decree may be reformed, or, if a sale has been made, pending the appeal, injustice may be prevented by stating the accounts of the trust in accordance with the opinion of the court above. To this end the cause will be remanded without affirming or reversing the decree.
Cause remanded. 

159 of 196 DOCUMENTS 

FRANKLIN FIRE INS. CO. of PHILADELPHIA, vs. JOHN COATES and WM. C. GLENN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 285; 1859 Md. LEXIS 76 

July 15, 1859, Decided 

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

Covenant upon a policy of insurance under seal, brought on the 7th of January 1854, by the appellees against the appellant. Plea, non infregit, with leave to introduce any matter of defence which might be pleaded or given in evidence under any other plea.

Exception. The policy, (admitted to have been duly executed,) is dated the 27th of August 1847, and was issued to Coates & Glenn for $ 300, "on lumber piled on the northeast side of Pennsylvania Avenue, near Baker street, including some window frames stored in the yard. Baltimore, Maryland." The policy was to expire in two months, and was renewed, October 11th, for two months, "$ 300 on each of two three-story frame dwellings, on the same lot, carpenter's risk," and the amount insured was increased, November 1st, "$ 700 additional on each house," and was again renewed December 29th, for one month, "$ 1250 on each, including building materials." The policy contains, among others, these conditions:

"1st. If any person shall insure his or their building or goods, and shall cause the same to be described in the policy otherwise than as they really are, so as the same be charged [**2]  at a lower premium than is herein proposed, such insurance shall be of no force.

"2nd. Property held in trust or on commission must be insured as such, otherwise the policy will not cover such property; and in case of loss the names of the respective owners shall be set forth in the preliminary proofs of such loss, together with their respective interests therein. Goods on storage must be separately and specifically insured."

"8th. All persons assured by this company, sustaining any loss or damage by fire, are forthwith to give notice to the secretary, and as soon as possible after to deliver in as particular an account of their loss or damage, as the nature of the case will admit of, and to produce to the company satisfactory proof thereof. All fraud or false swearing shall cause a forfeiture of all claims on the insurers, and shall be a full bar to all remedies against the insurer on the policy."

"13th. Some of the following, being considered hazardous risks, will subject the assured to a higher rate of premium, those therefore desirous of insuring such must have the same inserted in their policies, which otherwise will be void;" and among the special risks thus enumerated [**3]  are, "houses and vessels unfinished" and "lumber."

The other facts and proof in the case are sufficiently stated in the opinion of this court. The defendant then offered prayers in substance as follows:

1st. If the jury believe from the evidence, that the houses, upon which the insurance was effected, were not, nor was either of them, the property of the plaintiffs, at the time such insurance was effected, or at the time they were destroyed by fire, then the plaintiffs are not entitled to recover in this case.

2nd. That in order to entitle the plaintiffs to recover in this case, it is incumbent on them to satisfy the jury, from the evidence, that they had an interest, as owners, in the property, which constituted the subject matter of the insurance at the time such property was destroyed by fire, and that there is no evidence in the case of any such interest in the plaintiffs, and, therefore, they are not entitled to recover in this case.

3rd. If the jury find from the evidence, that the plaintiffs sold to George C. Davis the lumber out of which the houses and property which formed the subject matter of this insurance, were, in whole or in part, constructed, upon [**4]  an agreement between them and Davis, that Davis would insure, for the benefit of the plaintiffs, the value of such lumber, in an insurance upon the lumber itself, or upon the houses which might be, in whole or in part, constructed therewith; and shall further find, that said lumber was used in the erection or construction of the houses mentioned in the evidence and described in the policy; and shall further find from the evidence, that Davis was the owner of the houses at the time they were insured and destroyed by fire, then the plaintiffs are not entitled to recover in this case, unless the jury shall also find from the evidence, that said agreement, between the plaintiffs and Davis, was made known to the defendant and assented to by it, and that there is no evidence in the cause of such knowledge or assent.

4th. If the jury find from the evidence, that the buildings insured were described in the policy otherwise than as they really were at the time of such insurance, so as the same might be charged at a lower premium than was proposed in the policy, or in order to conceal the extent of the risk to be run by the underwriter, then the insurance is null and void, and the plaintiffs [**5]  cannot recover.

5th. That according to the true interpretation of the policy it was incumbent on the plaintiffs to have insured the lumber which was put into the buildings, or their claim for the same, and such claim, specifically, in order to entitle the plaintiffs to recover, and that such interest of the plaintiffs is not covered by the terms of this insurance.

6th. That the plaintiffs are not entitled to recover, because the policy had expired by efflux of time before the fire occurred. (This prayer was abandoned in argument.)

7th. That the plaintiffs have offered no preliminary proof of loss or damage to their property, and therefore are not entitled to recover in this case.

8th. If the jury find from the evidence, that George C. Davis was the owner of the houses mentioned and described in the policy when the insurance was effected, and was such owner at the time the houses were destroyed by fire, and that the plaintiffs were not, at either of said times, the owners of said houses, then the plaintiffs are not entitled to recover in this case.

9th. That there is no evidence in the cause that any property belonging to the plaintiffs was destroyed or damaged [**6]  by this fire, and, therefore, the plaintiffs are not entitled to recover.

10th. If the jury find from the evidence that George C. Davis was the owner of the property, the value of which is sought to be recovered in this case, on the 29th of December 1847, when the insurance was effected, and was the owner of said property at the time it was destroyed by fire; and shall further find from the evidence, that Davis, being such owner at the time the insurance was effected, procured the insurance to be effected in the names of the plaintiffs as owners, without disclosing to the insurer that he, Davis, was the owner of the property, then the insurance is void and the plaintiffs cannot recover in this case.

The court (LEE, J.) rejected these prayers and instructed the jury, that if they find from the whole evidence in the case, that the plaintiffs acted in good faith, and obtained the insurance from the defendant solely to indemnify any loss they might sustain to the extent of their interest in the property, without any fraudulent concealment or misrepresentation on their part, in obtaining said insurance, then they are entitled to recover.

To the rejection of its prayers the [**7]  defendant excepted, but did not except to the instruction given by the court.

The verdict was in favor of the plaintiffs for $ 1142.53, and costs, and from the judgment thereon the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The refusal of an Insurance Company to pay the amount of the loss, upon the ground that they were not upon the risk, is a waiver of the preliminary proof required by the policy.

The lien upon buildings held by material-men, under the mechanics' lien laws of this State, is an insurable interest in the property.

The material-man has a subsisting lien in the intermediate time between the furnishing of the materials and the expiration of the six months limited by the law for filing his claim, though no claim has been filed by him.

A condition in an insurance policy, that it shall be void if the party insuring his buildings or goods "shall cause the same to be described in the policy otherwise than as they really are, so as the same be charged at a lower premium than is herein proposed," relates to a misdescription of the property, and not to the character of the title or interest in it.

The materiality of the disclosure or concealment by which a policy is to be rendered void is a question of fact, which must be submitted to the jury, and a prayer omitting to do so is, for this reason, defective.  

COUNSEL:
Jno. P. Poe and St. Geo. W. Teackle for the appellant:

The prayers of the appellant deny the right of the plaintiffs to recover.

1st. Because they offered no preliminary proof of the loss according to the condition of the policy.

2nd. Because they had no insurable interest in the property insured.

3rd. Because the policy is void for material concealment or misrepresentation in obtaining it.

1st. It is very clear that the failure to offer the preliminary proof required by the 8th condition of the policy is fatal to the plaintiff's right to recover, unless such proof has been waived by the company. 3 Gill, 176, Edwards vs. Balto. Fire Ins. Co. Has there been any such waiver? The only testimony in the case upon which an argument in favor of a waiver can be based, is that of F. H. Smith, the agent of the company, and this, we submit, does not show it. Nothing was said at any of the interviews spoken of by this witness, of the interest [**8]  claimed by the plaintiffs, but, on the contrary, they admitted that the property belonged to Davis, and, in fact, abandoned the claim on the policy, satisfied that they had no remedy against the company. There was, therefore, clearly no waiver of preliminary proof as to the claim now made by these parties as lienors or equitable title-holders. 2 Pet., 25, Columbian Ins. Co. vs. Lawrence.

2nd. At the time the policy was effected, and when the fire occurred, the whole legal and equitable estate in the property, described in the policy, was in Davis alone, the plaintiffs not being owners thereof to any extent. An agreement was made between Davis and the plaintiffs, not to give them an insurable interest in the property, but that Davis would insure his property in their names, in order to secure them for the lumber they were to furnish for building the houses, and it is very clear that this agreement conferred upon the plaintiffs no insurable interest and no right to recover on this policy, unless it was disclosed to the company, and sanctioned by it, which was not done. 16 Wend., 397, Etna Fire Ins. Co. vs. Tyler. 1 Arnould on Ins., 241. 2 Phillips on Ins., 282. Angell on Fire Ins.  [**9]  , 101, 102, 109, 220. 16 Pet., 495, Carpenter vs. Washington Ins. Co. They had, therefore, no insurable interest by virtue of their agreement with Davis. Had they any such interest as material-men under the mechanics' lien laws? Under the Act of 1838, ch. 205, no such lien exists until the claim for a lien is filed. 6 Gill, 27, Carson vs. White. That Act says, only, that "every building," &c., "shall be subject," that is, liable "to a lien," &c. The lien is inchoate, not complete, till the provisions of the law have been strictly complied with, and when, as in this case, the six months have passed, and the claim is not filed, the lien is gone ab initio, in the same manner as in case of the non-performance of any other condition subsequent. Again, if they had filed their claim under the law, and thus perfected their lien, the company, upon payment of the loss, would have been subrogated to their rights as lienors, (16 Wend., 397,) and, having failed to do so, the underwriter is released; this rule of subrogation is conclusive upon the question of the existence or non-existence of an insurable interest, or lien under the mechanics' lien laws.

3rd. The policy was void, because of [**10]  misrepresentation or concealment of material facts in obtaining it, and upon this point we insist:

1st. That the interest of the plaintiffs in the lumber which was put into the houses mentioned in the policy, or their claim for its value, ought to have been insured specially, or specifically, to entitle them to recover, according to the true interpretation of the policy, and, not having been so insured, they cannot recover; and again, that the houses should have been specifically insured as unfinished houses, under the 13th condition of the policy. The renewal of the 29th of December, indicated to the insurers that the houses were completed, and yet the proof shows that they were then unfinished.

2nd. That Davis, being the owner of the property at the time he applied for and obtained this policy, and having represented to the insurer that it was the property of the plaintiffs, or having concealed from the insurer that it belonged to him, and having procured the insurance as the property of the plaintiffs, without disclosing his ownership thereof, and having concealed this from the insurer till after the property was destroyed by fire, such misrepresentation or concealment [**11]  avoided the policy. The extent of the interest of the assured, affects the underwriters in taking the risk, and should be communicated at the time the insurance is effected; the nature and extent of the interest of the assured is material to the risk, and a concealment of this is fatal to the policy. 2 Pet., 25, Columbian Ins. Co. vs. Lawrence, and same case in 10 Pet., 507. 16 Pet., 495, Carpenter vs. Washington Ins. Co. Parson's Mercantile Law, 488, 494, 513. 1 Arnould on Ins., 487, 488, 495, 500, 501, 515, 537, 538. Chitty on Cont., (6th Am. Ed.,) 684. 1 Story's Rep., 57, Carpenter vs. American Ins. Co. 4 Mason, 390, Ohl vs. Eagle Ins. Co. 7 Foster, 149, Hersey vs. Merrimack Co. Mutual Fire Ins. Co. 17 Penn. State Rep., 253, Smith vs. Columbia Ins. Co. 6 Humph., 176, Catron vs. Tenn. Ins. Co.

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

1st. That the appellant waived the necessity of preliminary proof by the terms of its refusal to recognize its liability or pay the loss. Smith's testimony shows, that the company put its refusal to pay on the ground that it was not liable for the loss. Now preliminary proof is only evidence of the extent of the loss, and when [**12]  the company says it will not pay because it is not liable, it would be a farce to produce such proof. The whole question is, however, settled in the cases of Allegre vs. Maryland Ins. Co., 6 H. & J., 408, and Edwards vs. Balto. Fire Ins. Co., 3 Gill, 176. See also 2 Ohio, (N. S.,) 452, Hartford Prot. Ins. Co. vs. Harmer; Parson's Commercial Law, 536, note 5.

2nd. That the appellees, at the time of taking out the policy, and when it was afterwards at the several times renewed, had, under their agreement with Davis, and as materialmen, under the mechanics' lien laws, a lien on the property as so insured, which it was competent for them to insure in the terms of the policy, and its several renewals, without any more specific description of such interest than the policy contains. They had a consummated equitable right, under the contract with Davis, and a legal right under the lien laws. The Act of 1838, ch. 205, sec. 13, expressly makes the debt for doing work or furnishing materials a lien, until the expiration of six months from the time the work is finished or the materials furnished, "although no claim shall have been filed therefor," and such lien is preferred to every other [**13]  incumbrance attaching after the commencement of the building. Can there be a doubt that this is an insurable interest? If it had been a mortgage there could have been no doubt about it, and yet the mechanics' lien, under the statute, overrides even a mortgage. It is therefore a legal interest, which, under all the decisions, is insurable, and we submit, that the equitable interest, under the contract, was also an insurable one. Nor is it necessary that the assured should disclose to the insurer the nature and extent of his interest in the property insured. The decisions of the Supreme Court, cited on the other side to sustain their views on this point, have not been generally followed in this country, and are not regarded as law even to the extent to which they go. But they decide, what is every where the law, that the materiality of the concealment, as to title, as well as other matters, is a question of fact for the jury, and none of the prayers of the appellant leave this question to the jury. In support of these positions, both that the interest of the appellees was an insurable interest, and that the nature and extent of such interest need not be disclosed, see 2 Am. Lead. Cases,  [**14]  550 to 557, 634 to 680; 1 Arnould on Ins., 226, 227; Angell on Fire & Life Ins., secs. 67, 182, 458; Parson's Mercantile Law, 509; 6 G. & J., 372, Thomas vs. Vonkapff; 2 Md. Rep., 122, Allen vs. Mutual Ins. Co.; 18 Verm., 305, Swift vs. Vermont Mutual Ins. Co.; 1 Wood & Minot, 272, Aldrich vs. Equitable Safety Ins. Co.; 2 Mass., 280, Holbrook vs. Brown; 3 Sumner, 132, Hancox vs. Fishing Ins. Co.; 1 Hall, 325, Robbins vs. New York Ins. Co.; 9 Wend., 404, Traders Ins. Co. vs. Robert. 12 Wend., 507, Tyler vs. Etna Fire Ins. Co.; 9 Sergt. & Rawle, 103, Wells vs. Philadelphia Ins. Co.; 8 Humph., 684, Delahay vs. Memphis Ins. Co.; 3 Barn. & Adol., 478, Crowley, et al., vs. Cohen.

3rd. That there was no improper or unlawful silence, concealment, or misrepresentation, by the appellees, or their agent, Davis, in procuring the insurance and its several renewals, and that in the absence of any specific inquiries, every thing was communicated to the appellant which the law or propriety required. The cases already cited fully sustain this position.

4th. That the prayers of the appellant are defective in form, and do not raise or properly present the questions designed to be raised and [**15]  here discussed, and were therefore properly overruled.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*293]  BARTOL, J., delivered the opinion of this court.
The several questions presented by this appeal may be stated in the three following propositions:
1. Was the preliminary proof, required by the 8th condition of the policy, waived by the appellants?
2. Had the appellees any insurable interest in the property named in the policy?
3. Was there, in obtaining the insurance, any misrepresentation or concealment of facts material to the risk, which renders the policy void?
These propositions will be considered in the order in which they have been stated.
1. The testimony of Mr. F. H. Smith, the agent of the company, is, that a day or two after the fire, George C. Davis, who had obtained the policy, called at the office of witness, 

 [*294]  and informed him that the houses had been destroyed by fire, and demanded the amount of the loss, stating, at the time, that the said buildings belonged to him, Davis, and not to Coates & Glenn. The witness then informed Davis that the defendant had insured Coates & Glenn's property, and not the [**16]  property of Davis, and that the defendant was not upon the risk, if the property insured and burned was the property of Davis, and that the defendant would not pay the loss to said Davis. That some day or two afterwards, one of the plaintiffs called upon the witness and asked for payment of their loss upon the buildings mentioned in the endorsements upon the policy, and that witness informed the plaintiff that the defendants had, by their policy, insured the property of Coates & Glenn, and not the property of George C. Davis, and that the property which had been insured as the property of Coates & Glenn, in said policy, was the property, not of Coates & Glenn, but of George C. Davis, as he, the witness, had learned from Davis since the fire, and that the defendant was not upon the risk, and would not pay the amount of the loss. That the plaintiff admitted that the houses insured were the property of Davis, and witness never afterwards heard from either of the plaintiffs, or from Davis, in regard to the loss. Upon cross-examination the witness stated, that both upon the application of Davis and of one of the plaintiffs, for the amount of the loss, the witness stated to both of the applicants [**17]  that the defendant was not upon the risk, and would not pay the amount of the loss; that the defendants had, in their policy, insured plaintiff's houses, and not Davis', and that witness would probably have refused to receive any preliminary proof of said loss, if any had been offered to him; that no preliminary proof was offered to him; that the time for preliminary proof had not arrived, as it was only a day or two after the fire, and nothing was said by any one about it, but that if it had been offered, he thought he would have refused to receive it, the case being too clear in favor of the defendant not being on the risk, to receive preliminary proof of the loss. The witness further stated, upon reflection, that if preliminary proof of the loss had been offered to him, as agent of the defendant, either by Davis 

 [*295]  or the plaintiff, who called on him, he would probably have received such proof and transmitted it to the company in Philadelphia, as his duty probably required. The witness, on cross-examination by the plaintiffs' counsel, then testified that he told the plaintiff, who called on the occasion after the fire, mentioned in his examination-in-chief: "The company [**18]  won't pay. They are not on the risk. The witness added: "The position I took precluded the offer of preliminary proof on their part. I took the ground we had nothing to do with it."
This proof, in our opinion, clearly shows a waiver by the agent of the company, of preliminary proof.
In the case of Allegre vs. Insurance Co, 6 H. & J. 408, a letter from the defendant, in which it was stated, "the company decline the payment, under a persuasion that the company are not answerable for the same," was a waiver of further preliminary proof. On page 413, the court say, "If they intended to refuse payment of the loss because the invoice, a customary part of the preliminary proofs, had not been laid before them, it was their duty so to have informed the insured, and their failure to do so, and the writing of such a letter, was a waiver of all further preliminary proofs." Applying the principle there decided, to the present case, we think the seventh prayer of the defendant was properly refused.
2. The second question for our consideration is, whether the appellees had an insurable interest in the property named in the policy?
The evidence shows that the property belonged to George [**19]  C. Davis, and not to the appellees. Davis held, both at the time of the insurance and of the fire, the whole estate, legal and equitable.
The interest of the appellees in the premises, and for the loss of which they claim compensation under the policy, arose as follows: They were lumber merchants. Davis, a carpenter, purchased from them lumber for the purpose of building the houses mentioned in the policy. Being unwilling to furnish him the lumber upon his mere credit, it was agreed between them and Davis that he would insure, for their benefit, the lumber as they might furnish it, and the houses as the 

 [*296]  lumber might, by degrees, be worked into them, or employed in their construction, so as to protect them, by said insurance, to the value of the lumber which they might so furnish. This arrangement was not communicated to the insurers. The policy was obtained by Davis, in the name of Coates & Glenn, and the insurance was first upon the lumber, and afterwards upon the two dwelling-houses. The lumber was furnished to Davis, and used by him in the construction of the houses, during a period extending from the 2d of August to the 29th of November 1847. On the 9th or 10th of [**20]  January, before the buildings were finished, they were entirely destroyed by fire.
In our opinion, both at the time of the making of the policy and of the fire, the appellees had, as material-men under the statute, a lien upon the buildings to the amount of the lumber furnished by them to Davis, and used in their construction. It has been argued by the appellants that no lien exists until a claim is filed of record under the 10th and 11th sections of the Act of 1838, and for this construction, they rely upon the language of the Court of Appeals, in Carson vs. White, 6 Gill 17, where it is said: "No mechanic has, in virtue of the Act of Assembly, a lien on the house which he has built or repaired, unless he has filed in the office of the clerk of Baltimore county court a statement of his demand, and, in that statement, has given not only the sum due, but also the nature or kind of work done, and the kind and amount of the materials furnished, and the time when the materials were furnished, and the work done." This language, taken by itself, would seem to furnish some ground for the appellant's argument. But an examination of the case will show that the question [**21]  before the court was, the sufficiency of the claim filed in that case, and relied upon by the mechanic, and they decided that the provisions of the Act, in that respect, not having been complied with, the plaintiffs could not avail themselves of the remedies provided by the law.
The question we are now considering is, whether in the intermediate time between the furnishing of the materials and the time limited by law for filing the claim, there is a subsisting lien? This question did not arise in Carson vs. White. 

 [*297]  It may, however, be decided by a brief reference to the provisions of the Act of Assembly. By the 13th section it is enacted, "That every such debt shall be a lien as aforesaid, until the expiration of six months after the work shall have been finished, or materials furnished, although no claim shall have been filed therefor; but such lien shall not continue longer than the said period of six months, unless a claim be filed as aforesaid, at or before the expiration of the same period."
Carson vs. White, was a case within the latter clause of this section. The case before us falls within the first clause, which gave to the appellees a lien upon the buildings [**22]  at the time of their destruction by fire, notwithstanding no claim had been filed by them. Such a lien constituted an insurable interest in the property. This is abundantly established by all the authorities.
In Wilson vs. Hill, 3 Metcalf 66, the Supreme Court of Massachusetts say, "An insurance on buildings against loss by fire, although, in popular language, it may be called an insurance of the estate, is, in effect, a contract of indemnity with an owner, or other person, having an interest in the preservation of the buildings."
Many cases on this subject are collected in the American Leading Cases, 2 Vol., 550, (4th Ed.,) and the principle deduced from them, as correctly stated on page 553, is, "that any interest in real estate, or which would be impaired or injured by its destruction, may be made the subject of a valid insurance, although falling short of a title to the land." See Hancox vs. Fishing Ins. Co., 3 Sumner, 132. 1 Arnould on Ins., ch. 10, sec. 105. 1 Phillips on Ins., secs. 173, 175, 201, 204, 312, 351.
3. The last proposition is, whether there was any misrepresentation or concealment of any material facts, in [**23]  obtaining the policy, which will avoid it.
1st. As to the description of the property. The first condition of the policy contains these words: "And if any person shall insure his or their building or goods, and shall cause the same to be described in the policy otherwise than as they really 

 [*298]  are, so as the same be charged at a lower premium than is herein proposed, such insurance shall be of no force."
This clause we understand to relate to a misdescription of the property insured, and as having no relation whatever to the character of the title or interest in it. There is no evidence in the cause of any such misdescription as is contemplated by that clause, and, therefore, the fourth prayer could not be granted.
2. As to the statement of the title in the policy. It is argued by the appellant, that, in this case, the policy was taken upon the property as if Coates & Glenn were the owners of it, and that the omission to state the nature and character of the interest, was a violation of the first condition of the policy, or, if not within that condition, that it was a concealment of a fact material to the risk, which ought to have been communicated, and renders [**24]  the policy void. We have already said that the first condition of the policy cannot be construed to relate to the title or ownership, but that it refers only to the description of the property itself.
There is some conflict of authority as to whether it is the duty of the assured, in a policy against fire, to communicate to the underwriter, in the first instance, and in the absence of any inquiry on the subject, the extent and character of his interest, when it is of a special or limited nature. In the case of the Columbian Ins. Co. vs. Lawrence, 2 Peters 25, it was decided that such fact ought to be communicated, and the same principle was re-affirmed in 10 Peters 507, when the case came before the Supreme Court on another occasion.
The same principle was announced in Carpenter vs. Washington Insurance Co., 16 Peters 495. On the other hand, the courts in this country have generally refused to give their assent to this principle. This will be apparent from an examination of the great number of cases on this subject collected and explained in the American Leading Cases, 2 Vol., 637 to 642.
The ruling of the courts [**25]  in this country has generally sustained the validity of such policies as the one we are considering, if they have been procured in good faith, even although 

 [*299]  the assured has only a limited or partial interest in the property insured, and has not communicated that fact to the insurers.
It is not necessary, for the decision of this case, to express our opinion on this point; for, whether we adopt the views expressed by the Supreme Court of the United States on this question, or those of the courts of Massachusetts, New York, and other States, the result in this case will be the same. It is everywhere conceded, that the materiality of the disclosure or concealment is a question of fact which must be submitted to the jury. See 10 Peters 516.
None of the prayers of the defendant present this question to the jury. They go upon the ground either that the appellees had no insurable interest, not having property in the building insured, as owners, or that the omission of the assured to communicate to the company the extent and nature of their interest in the building, rendered the policy void, whether material to the risk or not.
It follows, from what has been [**26]  said, that none of the prayers of the defendant could properly have been granted, and there was no error in rejecting them.
No exception being taken to the instruction granted by the Superior Court, it is not before us for review in this appeal.
Judgment affirmed. 

160 of 196 DOCUMENTS 

LOWMAN CHEW and WILLIAM GOLDSBOROUGH, his committee, vs. THE BANK OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 299; 1859 Md. LEXIS 77 

July 15, 1859, Decided 

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

The bill in this case, filed in the court of chancery, on the 15th of February 1849, by the appellants, against the appellee and one Chew Schnebly, alleges, that a writ de lunatico inquirendo issued out of the court of chancery, under which, on inquisition taken on the 9th of June 1845, the complainant, Lowman Chew, was found to be a lunatic without lucid intervals, and to have been in the same state of lunacy from his nativity; that under these proceedings the complainant, Golds-borough, was duly appointed the committee of his person and estate; that said Chew is the only child and personal representative of Samuel A. Chew, late of Queen Anne's county, who died intestate about the year 1840, and, as such only child, was, and is, entitled to the personal estate of said intestate remaining after payment of his debts; that a certain Chew Schnebly, of Washington county, obtained administration upon the personal estate of said intestate, and after paying all debts and expenses of administration, there remained in the hands of said administrator a clear surplus, consisting in part of ten shares of the capital stock of the Bank of Baltimore,  [**2]  each of the par value of $ 300, and which, at the time of the death of the intestate, and of administration granted upon his estate, were standing in the name of the intestate on the books of the bank; that on application of the administrator to the orphans court of Queen Anne's county, at its August term, in the year 1844, that court ordered and directed the administrator to pay over to the legal representative or representatives of the intestate, the balance of the estate, including any bank stock that may be in his possession, and on the 23rd of that month and year, the administrator, with the permission and consent of the bank, and by an entry on the books of the bank, transferred said shares of stock into his name of Chew Schnebly, and since that time he has, with the consent and connivance of the bank, transferred said stock to some other person or persons unknown to complainants; that the first transfer was not authorized by said order, but, on the contrary, was made fraudulently and against the duty of the administrator; that at or before the time of this first transfer, the bank had in its possession a copy of said order, and well knew and understood that said transfer was [**3]  made without lawful warrant, and is, therefore, in construction of law, a party to the aforesaid fraudulent act of the administrator, and is liable to the complainants for the consequences thereof; that complainants have been informed that the bank pretends, that at the time of making this first transfer, the administrator, with a copy of the aforesaid order, likewise presented to the bank an instrument of writing purporting to be signed by Chew, whereby, he, in consideration of a large sum of money, alleged therein to have been paid him by said Schnebly, sells and transfers said stock to said Schnebly, and authorises him to transfer the same on the books of the bank, and on application made, on behalf of complainants, to the bank, they have received from the bank, as copies of said transfer, order and bill of sale, the papers filed as exhibits with the bill; that complainants do not know, and cannot admit, that said bill of sale was signed, sealed or delivered by Chew, and put the defendants on proof of its execution, if that shall be deemed necessary to their defence. The complainants further charge, that at the date of said paper, and for many years before, and ever since, Chew [**4]  was, and has been, a lunatic of unsound mind, and without lucid intervals, and, therefore, incapable of binding his interests by any such instrument, and that such his mental imbecility was well known to the bank before and at the time of the transfer first made as aforesaid, and if said paper was, in fact, ever executed by Chew, such execution was obtained by fraudulent practices and undue influence exercised over him by said Schnebly, or some other person or persons in his interest or employment. They further aver, that no part of the sum of money mentioned in said paper, as the consideration for such pretended sale or assignment, was ever paid by the said Schnebly to or for the use of Chew, but on the contrary, at and before the grant of administration to him, Schnebly well knew that Chew was a lunatic and of unsound mind as aforesaid, and incapable of managing or disposing of his property, and complainants are advised, that by reason of such mental imbecility of Chew, said instrument, if ever executed by him, is absolutely null and void, and if said stock still stands in the name of Schnebly it ought now to be transferred into the name of Chew, and if it has been by Schnebly disposed [**5]  of to persons being or pretending to be purchasers, without notice, Schnebly and the bank ought to be required to procure and transfer into the name of Chew other shares of stock of the bank, equivalent at par to said ten shares of $ 300 each. The complainants are informed and charge, that ever since the date of said first transfer the bank has divided half yearly dividends of profits of large value, but of what amount in particular, and whether the same have been retained by the bank, or paid over to Schnebly or other person or persons, they know not, and can only ascertain by discovery of the bank. The bill then prays that the defendants may answer the matters herein charged, and especially may discover whether said stock now stands in the name of Schnebly on the books of the bank, and if not, at what time the same was transferred, and to whom, and in whose name it now stands, and if it stands in the name of Schnebly that he may be compelled to transfer the same to the name of Chew, and if it has been transferred to other persons, then that Schnebly and the bank may be compelled to procure, at their cost, and transfer into the name of Chew, stock of the bank equivalent at par to [**6]  said ten shares of the value of $ 300 each, and that the bank may likewise be required to account for and pay over to the complainant, Goldsborough, as committee as aforesaid, the dividends of profits of the bank which have been declared on said stock, and such further dividends as may be declared thereon, until such stock shall have been re-transferred as aforesaid, and for general relief.

The bill of sale, order of court and transfer, filed as exhibits with the bill, are as follows:

"Know all men by these presents, that I, Lowman A. Chew, of Queen Anne's county, State of Maryland, for and in consideration of the sum of twenty-six hundred and fifty dollars to me in hand paid by Chew Schnebly, of Washington county, and State of Maryland, at and before the sealing and delivery of these presents, the receipt whereof I do hereby acknowledge, have granted, bargained and sold, and by these presents do grant, bargain and sell unto the said Chew Schnebly, ten shares of the capital stock of the Bank of Baltimore, standing in the name of Samuel A. Chew, deceased, to have and to hold the said stock above bargained and sold, or intended to be, unto the said Chew Schnebly forever. And [**7]  I do hereby constitute and appoint Chew Schnebly my true and lawful attorney, for me and in my name to receive and transfer the said ten shares in the capital stock of the Bank of Baltimore, to himself or any other person. In testimony whereof, I have hereunto set my hand and affix my seal, this 1st day of May 1844.

LOWMAN A. CHEW,   (Seal.)

Signed, sealed and delivered in the presence of--

Samuel M. Pettitt."

"MARYLAND, SCT:--Queen Anne's County,

Orphans Court, August Term, 1844.

On application of Chew Schnebly, administrator of Samuel A. Chew, late of Queen Anne's county, deceased, ordered that he pay to the legal representative or representatives of the said deceased, the balance of the estate, including any bank stock that may be in his possession."

"In testimony that the aforegoing is a true copy taken from the minutes of the proceedings of the orphans court of Queen Anne's county, I have hereto subscribed my name and affixed the seal of my office, this 13th day of August, Anno Domini, 1844.

Test,--LEM'L ROBERTS, Reg. Wills."

"4001. Being duly authorised, I do hereby transfer to myself ten shares of the stock heretofore standing [**8]  in the name of Samuel A. Chew. Witness my hand, this 23rd day of August 1844.

(Signed,)   CHEW SCHNEBLY, Adm'r.

Test:--Zeb. Waters."

"The above is a true copy of transfer on the book of the Bank of Baltimore.

ZEB. WATERS, Book-Keeper.

Bank of Balto., July 8th, 1848."

The answer of the bank, sworn to by its cashier, neither admitting nor denying such of the allegations of the bill as they have no knowledge of, admits the fact of the transfer of the stock upon the demand of Schnebly, and the exhibition and deposit of the order of the Orphans court of Queen Anne's county, and the bill of sale aforesaid, but positively denies all knowledge or notice of the alleged fraudulent practices of Schnebly, or of the want of consideration for said bill of sale, and avers that the transfer of the stock was admitted on the demand of Schnebly in good faith on their part, in reliance upon the legal validity of the documents then produced, and under the full belief that they authorised said transfer, and that they never knew, heard, or suspected, that Chew was a lunatic until long after the time of said transfer. The answer further states that the stock was transferred [**9]  by Schnebly on the 24th of August 1844, and that transfers thereof have since been made, so that they cannot tell in whose names any of it now stands, and that the dividends that have been declared thereon, have since been duly and regularly paid to the persons in whose names the stock stood at the time without notice, actual or constructive, of any claim thereto by any other person or persons.

It having been charged, by a supplemental bill, that Schnebly resides out of the State, an order of publication issued, and failing to answer a decree taking the bill pro confesso as against him, was passed on the 23rd of June 1853.

The cause was subsequently transferred to the Circuit court for Baltimore city, and was submitted as against the bank upon bill, answer, and the admissions:

1st. That the copy of the bill of sale, exhibited with the complainant's bill, is a true copy of the original, and that the same may be read in evidence by either party, and shall have the same effect as if the original thereof was produced and its execution duly proved.

2nd. That at the time of the execution of said paper, and of the transfer of the stock mentioned therein, and for some time [**10]  prior thereto, the said Lowman Chew was non compos mentis, and it is agreed that, at the hearing of this cause, either party may read in evidence the proceedings on the petition in lunacy, against said Chew, and that a decree for the complainants as against the bank shall be entered as by consent, so that the cause may be expedited on appeal.

The proceedings in lunacy referred to, sustain the allegations of the bill in regard to them, and show that Chew was about twenty-three years of age on the 9th of June 1845, the time of taking the inquisition.

On the 1st of June 1855, the court (KREBS, J.) passed a decree that the defendants, or one of them, forthwith transfer or cause to be transferred, to the complainant, Chew, thirty shares of the stock of the bank, of the par value of $ 100 each, and account for the dividends thereon since the 23rd of August 1844, to the time of the transfer directed to be made, and referring the case to the auditor to state the account.

From this decree the bank appealed, and, after the cause was argued, in part, in the Court of Appeals, that court, on the 22nd of May 1857, by agreement of counsel, remanded the case for further proceedings,  [**11]  without reversing or affirming the decree.

Testimony of many witnesses was then taken on the part of the complainants, very clearly showing that during his whole life, Lowman Chew was of unsound mind, incapable of making a valid contract, and that his whole appearance, language and conduct, showed imbecility of mind, if not idiocy, which any one of ordinary observation could detect at once; that he was subject to frequent and furious paroxysms of maniacal excitement, which increased in frequency and violence with increasing years, and he has been confined in Mount Hope Hospital, as a lunatic, since the 15th of November 1849.

The cause having again been submitted for hearing, the court, on the 4th of June 1858, passed a decree dismissing the bill as against the bank, and from this decree the complainants appealed.

After the appeal was taken, the bank, by its solicitor, filed a copy of the docket entries in a suit in the Circuit court for Queen Anne's county, upon the administration bond of Chew Schnebly, brought in the name of the State for the use and at the instance of the trustee of Lowman Chew. These entries show that the suit was instituted at November term 1845,  [**12]  of that court, and, under a demurrer to the replication filed at November term 1848, was continued from that time from term to term, till November term 1856, when it was again continued, that being the last entry in the case.  

DISPOSITION:
Decree reversed and cause remanded.  

HEADNOTES:

Where the defendant omits to demur for multifariousness, the court may, sua sponte, take the objection and dismiss the bill, but whether this will be done or not must depend on the nature of the case and the course of proceedings, at the time of the hearing.

Where the trouble and expense which a demurrer for multifariousness, if well taken, would have prevented, have been incurred, and the case is fully presented on the record, the court should not interfere and take the objection sua sponte.

A party who sells bank stock and receives a consideration therefor, and gives a power of attorney for its transfer, will not be allowed, in equity, to defeat the rights of parties acquired under the transfer, solely upon the ground of the legal insufficiency of the instruments by which it was effected.

A bill of sale of stock, with a power of attorney for its transfer, executed by a lunatic, may be avoided by the lunatic in a proceeding instituted for that purpose, and the bank held responsible for allowing the transfer to be made under such a power.

From the current of authorities it seems that the acts of lunatics and persons non compos mentis are voidable and not absolutely void.

Lunatics and persons non compos mentis are not bound by their contracts, even though no fraud or imposition has been practiced upon them.

Where a bank permits a transfer of its stock to be made under a power of attorney it takes the risk of its validity; it is liable in case of a forged power, or of one executed by a feme covert or an infant.

According to the established doctrine the acts of lunatics and infants are treated as analogous, and in this view the transfer of stock under a bill of sale and power of attorney from a lunatic may be avoided.

In all such cases there may be no actual fault on the part of the bank, yet the legal conclusion results from the justice and expediency, in such transactions, of casting the loss on those who can best provide against it.

A bank may refuse to recognize the power of attorney if not satisfied of its entire genuineness, and may require the personal attendance of the party for the purpose of determining such matters of fact as may give rise to disputes.

In this case the transfer of stock, under a bill of sale and power of attorney, executed by a lunatic, was avoided, and it was held that the bank should pay simple interest on the dividends accrued on the stock since the transfer, from the time the bank knew of the lunacy.  

COUNSEL:
Jervis Spencer and Thos. S. Alexander, for the appellants.

There were no exceptions filed in the court below to the averments of the bill, and since the Act of 1832, ch. 302, it is too late to raise them in this court. But the bill is not liable to any of the objections urged against it by the appellee. It is not multifarious, and if it be, the objection should have been raised by demurrer. It is true that in some cases, and under special circumstances, the courts will, in their discretion, notice this objection sua sponte, but there are no such peculiar circumstances in this case as would justify the exercise of such a discretion, and warrant the court now, after the case has, with great expense and delay, been brought to final hearing, in dismissing the bill in toto on account of multifariousness. Nor, it is submitted, is there any force in the objection, that there is a variance between the allegations of the [**13]  bill and the proof, so far as the bank is concerned. The bill alleges that Schnebly procured the execution of the bill of sale by undue influence and fraud, and that, by construction of law, the bank is responsible for permitting the transfer, by reason of the lunacy of Chew at the time. Both these allegations are fully sustained by the proof. The fraud in fact as against Schnebly is established by the decree pro confesso, and the lunacy of Chew, at the time of the bill of sale and of the transfer, is established, both by the admissions in the case, the inquisition of lunacy, and the oral testimony of witnesses, and this, we shall contend, renders the bank responsible in law. Though the bill does not charge fraud in fact as against the bank, it is yet impossible to say there was not gross delinquency and gross negligence on the part of the bank and its officers in this transaction, and gross negligence is fraud in law and must be fraud in morals. 2 Hare, 257, West vs. Reid. If the bank officers had done as their duty required and as they ought to have done, and had Chew brought before them when the transfer was made, they could not have failed to see his imbecility, for it was apparent [**14]  to every observer. They, however, chose to act upon a power of attorney, without any inquiry or production of the lunatic before them, not observing even that degree of diligence, as to identity and capacity, which they usually exercise in cases of checks where the payees are not known to them.

Having thus disposed of the objections to the form of the proceedings, we shall proceed to consider the law of the case, and on this we insist:

1st. That even conceding, for the sake of the argument, that the incapacity of Chew did not, of itself, avoid the transfer, still the power of attorney and the order of the orphans court, neither singly or together, authorised the transfer as it was made. As administrator, Schnebly had no power to sell and transfer the stock, without an order of the orphans court, and a sale and transfer by him as administrator, without such order was void. Act of 1843, ch. 304. 4 Md. Rep., 352, Mayor & C. C. of Balto. vs. Norman. This order here relied on, only directs him as administrator, "to pay to the legal representative" of the intestate, and cannot be construed to authorise a transfer of the stock into his own name. It was an order of distribution,  [**15]  and not an authority to sell or transfer. The power of attorney was not properly executed by this transfer, and the transfer, therefore, cannot be said to have been made under it. A power of attorney must be executed in the name of him who gives the power, and not in the name of the attorney. Paley on Agency, 180, in 28 Law Lib., 78. The power should have been executed in this form: "Lowman Chew by Chew Schnebly," or, at least, "Chew Schnebly as attorney for Lowman Chew," whereas, the transfer is signed "Chew Schnebly, Admr."

2nd. The bill of sale and power of attorney proceeding from one wholly without reason, were absolutely void, and the transfer by the bank, therefore, wholly without authority; or if not absolutely void, they were at least voidable, and it is immaterial for the purposes of this case whether they be considered in the one light or the other; for the only distinction between a void and a voidable act is, that the former may be taken advantage of by a stranger in a collateral action, whereas in the latter a suit must be instituted directly for avoiding it, and such is the very object of that bill in the case, filed by the lunatic himself and his committee. 1 Md.  [**16]  Rep., 39, Key vs. Davis. Chancellor Kent in 2 Com., 450, says: "The contracts of lunatics are generally void from the period which the inquisition finds the lunacy to have commenced," and in 1 Livermore on Agency, 25, 26, it is held, that a letter of attorney by a lunatic is merely void. An idiot or lunatic cannot contract marriage, because marriage is a civil contract, the basis of which is consent, which idiots and lunatics are incapable of giving, and therefore of entering into that or any other contract. Shelford on Lunacy, 446. Idiots and lunatics are incompetent to contract by the law of England, which in this respect, is conformable to the civil law; furiosus nullum negotium gerere potest quia non intelligit quod agit. Shelford, 242. To the same effect is Stock on the law of non compos mentis, 23, in 25 Law Lib., 15; 1 Story's Eq. secs., 224, 225, Chitty on Cont., 135; 2 Salk., 427, Thompson vs. Leach; 2 Vernon, 412, Clerk vs. Clerk; 10 New Hamp., 156, Davis vs. Lane; 3 Mod., 310, Thompson vs. Leach; 3 Carr. & Payne, 1, Sentance vs. Poole; 6 Blackf., 240, Jenners vs. Howard; 6 Barr., 373, Rogers vs. Walker; 2 Strange, 1104, Yates vs. Boen; 3 Camp., 126, Faulder vs. Silk; 3 Brown's [**17]  Ch. Rep., 443, Att'y General vs. Pranther; 9 Sme. & Mar., 102, Fitzgerald vs. Reed; Conference Rep., (N. C.,) 503, Millison vs. Nicholson; 1 Bland, 384, C. D. Owing's case; 3 Blackf., 52, Harbison vs. Lemon; 2 Kent., 451. These authorities are strong in support of the position, that this bill of sale, with the accompanying power of attorney, is absolutely void, and if they do not go to this extent, they fully establish, that it is voidable, and may be avoided by the lunatic upon a proceeding instituted by himself and his committee directly for that purpose; the old doctrine, that a man shall not be heard to stultify himself, having been long since properly exploded as being manifestly absurd and against natural justice.

3rd. It was the duty of the bank to know the competency of the authority under which the transfer was made, and having neglected the necessary means for that purpose, has no adequate defence. In every case in which lunacy may be relied on as between the lunatic and his alienee, he may rely upon it as against a purchaser from his alienee in a proceeding directly to invalidate the transaction. The lunatic's case is made out prima facie by proof of lunacy, and it [**18]  is for the bank to show, even according to the cases cited by its counsel, if they can be regarded as law, the circumstances, if any, which would, notwithstanding the lunacy, make the contract valid. There are no such circumstances in this case. The bank should show, not only that the lunacy was latent, but that its officers have used reasonable diligence on their part to find it out. This they have not done. But it is said the bank stands in the shoes of a purchaser for a valuable consideration without notice. Suppose it does? Still, such a purchaser is bound to guarantee that his grantor, when acting under a power of attorney, does not exceed that power, that the power is valid, that he is not a bankrupt, an insolvent, a feme covert, an infant, and not falsely personated, why not then in the case of a lunatic to warrant and guarantee his sanity? But the bank is not a purchaser for value; it is but an incorporated partnership. Its obligations are that the stock shall not be permitted to be transferred or disposed of without the consent of the owner, and it is bound to take notice of every one who attempts to transfer the stock standing on its books. It pays a forged check at its peril.  [**19]  In the case of a transfer or check, drawn by a married woman, the bank is bound to take notice of the coverture. So in the case of an insolvent and an infant it is bound to answer to the trustee and the infant after he attains age. 1 Md. Ch. Dec., 407, Albert & Wife, vs. Savings Bank of Balto. It then relies upon the consideration set out in the bill of sale, but it does not pretend that this consideration was actually paid to Chew. The statement in the deed, that the consideration was paid, is of the lowest grade of evidence even as between grantor and grantee, and in the case of Hildreth vs. Sands, 2 Johns. Ch. Rep., 35, cited on the other side, it is decided, that where a creditor calls on grantor and grantee assailing the deed for fraud, the former must show some evidence of the consideration, other than the statements of the deed itself. The bank therefore, before it can escape responsibility on this ground, must offer some proof that the consideration stated in this bill of sale was paid to Chew, which it has utterly failed to do.

Jonathan Meredith for the appellee.

1st. The bill is multifarious because, 1st, the defendants are disconnected as to many of the charges [**20]  in the bill; 2nd, it seeks to enforce different demands against the defendants; 3rd, there is no privity or common interest between the defendants, and 4th, the defences of the defendants stand upon different grounds. The bill undertakes to charge actual fraud against Schnebly, and connivance in that fraud on the part of the bank. The joinder of the parties was, therefore, in the first instance, proper, but the answer of the bank denying the fraud on its part, and there being no proof on this point, sunders it from Schnebly; for if fraud is gone there are no allegations in the bill on which it can be sustained as against the bank. If they rely on the charge of negligence, then the lines of defence of the two parties are entirely different. Again, there are two claims, one joint and the other several, included in the bill--one against both defendants for a re-transfer of the stock--the other against the bank alone for an account of dividends. For these reasons the bill is multifarious. 2 Ves. Jr., 323, Harrison vs. Hogg. Ibid., 486, Dilly vs. Doig. 18 Ves., 72, Saxton vs. Davis. 2 Anst., 469, Ward, et al., vs. Duke of Northumberland, et al. Hard., 337, Berke vs. Harris, et al. 5 Gill,  [**21]  359, White, et al., vs. White. 1 Jacob, 151, Salvidge vs. Hyde. 2 Sch. & Lef., 367, Whaley vs. Dawson. 2 Mason, 181, West vs. Randall, et al. 5 Paige, 65, Boyd vs. Hoyt. And notwithstanding the defendants have not demurred, the court will, at the hearing, take the objection sua sponte, or when alleged ore tenus, and dismiss the bill in toto, especially where it has been so framed, as, in this case, to preclude a demurrer. 1 Mylne & Keene, 546, Greenwood vs. Churchill. 2 Mason, 201, West vs. Randall, et al. 5 Gill, 376, 382, White, et al., vs. White. 1 Dan'l Ch. Pr., 451.

2nd. The bill ought to be dismissed as against the bank on the ground of variance, the charges against it being wholly unsupported by proof. The bill charges fraud in fact both as against Schnebly and the bank, for it alleges that Schnebly fraudulently obtained the papers on which the transfer was made, and fraudulently procured the transfer, and that this was done with the consent and connivance of the bank, and that the bank well knew and understood at the time, that the transfer was made without lawful warrant. This amounts to a charge of fraud as against the bank, for a conniver is guilty of that which he [**22]  could prevent. It amounts to more than a charge of negligence or an omission of duty, and where fraud is charged and is disproved, or not established, the bill cannot be used for any secondary or inferior kind of relief, but must be dismissed at once. Now the answer of the bank utterly denies all fraud, and the complainants being thus put upon proof of the allegations of their bill, have utterly failed to establish this charge of fraud, and the bill should therefore be dismissed. 2 Dan'l Ch. Pr., 419. 2 Phillips, 255, Ferraby vs. Hobson. Ibid., 310, Glasscott vs. Lang. 3 Jones & La Touche, 224, Maguire vs. O'Reilly. 2 Sch. & Lef., 10, Lindsay vs. Lynch, and note (a.) 7 Eng. Law & Eq. Rep., 259, 260, Price vs. Berrington. 5 Ves., 452, Legh vs. Haverfield. 1 Bland, 236, Lingan vs. Henderson. 6 H. & J., 29, Chalmers vs. Chambers. 1 H. & G., 11, Ringgold vs. Ringgold. 6 G. & J., 199, Evans vs. Iglehart. 7 G. & J., 155, Boteler & Belt vs. Brookes.

3rd. The decree, pro confesso, against Schnebly, cannot, in any manner, prejudice or affect the defence of the bank. 1 Bland, 236, Lingan vs. Henderson. 2 Johns. Ch. Rep., 43, Hildreth vs. Sands.

4th. A contract with a lunatic is not [**23]  absolutely void, but voidable only. 4 Rep., 123, Beverley's Case. 2 Bl. Com., 290. 2 Kent, 451. 3 Burr, 1794. Zouch vs. Parsons. 1 Md. Rep., 32, Key vs. Davis. 1 J. J. Marshall, 236, Breckenridge's Heirs vs. Ormsby. 13 Mass., 239, Oliver, et al., vs. Houdlet. 5 Pick., 217, Wait vs. Maxwell. 14 Johns., 124, Jackson vs. Burchin. 2 Cowen, 552, Jackson vs. Gumaer. 10 Pet., 58, Tucker, et al., vs. Moreland. In 3 Burr., 1804, it is said, that a mere power of attorney by a lunatic or an infant is absolutely void. But that principle does not apply to a case where, as here, the power is coupled with an interest, so that it can be exercised in the name of the agent. 10 New Hamp., 160, Davis vs. Lane. All the authorities decide that such a power is voidable only. That this is such a power is also clear: it is embodied in a bill of sale conveying stock from grantor to grantee, and the latter had therefore an interest in its execution. 2 Mason, 249, Hunt vs. Rousmaniere, and same case in 8 Wheat., 203. But even if the transfer was void as against the lunatic, still the transferee or purchaser of the stock, bona fide, for value and without notice of the lunacy could not be held accountable. Fisher [**24]  on Mortgages, 298. 7 Johns. Ch. Rep., 150, Field vs. Schieffelin. In this case so much more ought the bank, dealing fairly and without knowledge in a matter in which it had no interest, to be protected. 5 Gill, 336, Farmers & Mechanics Bank vs. Wayman & Stockett.

5th. It being admitted that the bill of sale, containing the power to transfer the stock, was executed by Chew, Schnebly had a legal right, upon the production of that bill of sale and power, in the absence of all fraud and unfair dealing on his part, to demand of the bank a transfer of this stock. 2 Wms. Excrs., 900, (note.) 3 Binney, 562, Wilson vs. Wilson. 6 Ves., 276, Gibson vs. Jeyes. Ibid., 625, Lacey, Ex-parte. 9 Ves., 244, Coles vs. Trecothick. 3 Merivale, 208, Downes vs. Grazebrook. 10 New Hamp., 158, Davis vs. Lane. 2 Mason, 244, 249, and 8 Wheat., 174, 203, Hunt vs. Rousmaniere. 10 Barn. & Cress., 731, Gaussen, et al., vs. Morton. 4 Camp., 272, Watson vs. King.

6th. Although at the time of the execution of this bill of sale, and of the transfer of the stock mentioned therein, and for some time prior thereto, Chew was non compos mentis, as is admitted, and, although this bill of sale was fraudulently obtained [**25]  by Schnebly, still the bank, having no notice, actual or constructive, of the mental incapacity of Chew, or of the fraud of Schnebly, was justified in permitting the transfer. The bank was but a mandatory, and ordinary diligence, only, was required of it. Story on Bailments, secs. 137, 173, 178. There is nothing in the proof to show that the bank had the slightest notice of Chew's lunacy or of Schnebly's frauds, and it cannot be affected with notice. 11 Ves., 482, M'Queen vs. Farquhar. 2 Atk., 275, Hine vs. Dodd. 2 Hare, 249, West vs. Reid. 9 Hare, 449, Hewitt vs. Lossemere. 2 Anst., 432, Plumb. vs. Fluitt. 1 Hare, 43, Jones vs. Smith. 2 Brown's Ch. Rep., 391, Cothay vs. Sydenham. 6 Ves., 174, Evans vs. Bicknell. 7 John's Ch. Rep., 150, Field vs. Schieffelin.

7th. On the bill, answer, evidence and admissions in this cause, the bank is, in equity and good conscience, exonerated from all liability for or on account of the transfer of the stock mentioned in the proceedings, and is entitled to an affirmance of the decree appealed from. In Niell vs. Morley, 9 Ves., 478, it was decided that a court of equity will not interfere to set aside a contract, on the ground of lunacy at the [**26]  time it was made, if it was fair and without notice, especially where the parties cannot be reinstated. In Molton vs. Camroux, 2 Wels., Hurls. & Gor., 487, it was held that where a person, apparently of sound mind, and not known to be otherwise, enters into a contract which is fair and bona fide, and which is executed and completed, and the property, the subject matter of the contract, cannot be restored, so as to put the parties in statu quo, such contract cannot afterwards be set aside, either by the alleged lunatic or those who represent him, and this decision was affirmed in error by the court of Exchequer Chamber, in 4 Wels., Hurls. & Gor., 16. In Price vs. Berrington, 7 Eng. Law & Eq. Rep., 254, the court refused to interfere and set aside a conveyance, twenty-seven years after the transaction, on the ground of lunacy alone, in the absence of proof of fraud. See, also, 2 Clark & Finnelly, 634, Howard vs. Digby. 5 Beav., 325. 6 Beav., 192. 14 Eng. C. L. Rep., 196, Brown vs. Jodrell. 2 Atk., 411, Sergeson vs. Sealey. 10 Barr., 56, Beals vs. See. 10 New Hamp., 160, Davis vs. Lane. Applying the principles of these decisions to this case, it is submitted the bank cannot be held responsible [**27]  for permitting this transfer. But there are other singular facts in this case. This boy's father knew of the utter destitution of his intellect, and yet put no restraint upon him in his lifetime, but died intestate, leaving his whole estate to descend to this child, without appointing even a guardian or trustee over him. None of his friends interfere for his protection until long after this transfer was made, and when it was impossible to trace the stock. The orphans court of the county where he lived, and where his father lived and died, passed an order directing the delivery over to him of all the property in the hands of the administrator. When he was thus dealt with by his friends, and the court, whose duty it was to protect his interests, and who must have known of his imbecility, if it existed, it would be unjust and harsh in the extreme, to hold the bank, an innocent party, without notice of his lunacy, and acting in good faith and with reasonable diligence, in a matter in which it had no interest, responsible.

8th. But, in any aspect of the case, there can be no decree against the bank, unless the appellants show that they have, with due diligence, prosecuted their claim [**28]  against Schnebly and his sureties upon his administration bond, and that the remedy therein is exhausted. 5 Gill, 355, Farmers & Mechanics Bank vs. Weymond & Stockett. Barnardiston, 324, Harrison vs. Pryse.  

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

OPINIONBY:
TUCK 

OPINION:

 [*315]  TUCK, J., delivered the opinion of this court.
This is a very important case, as well on account of the doctrines of equity governing the affairs of persons of unsound mind, as because, by their application at this time, loss must fall on one of two innocent parties, in consequence of the fraudulent conduct of another, who took advantage of the mental imbecility of the complainant, to whom, as well by legal duty as by his unfortunate condition, he was placed in loco parentis.
The material facts are as follows: Samuel Chew left real and personal estate, and an only child, the complainant, who is shown to have been of unsound mind from his infancy, and altogether incapable of managing his affairs, or attending to business. The father died in 1840, and Chew Schnebly, one of the defendants, a near relative of the complainant, obtained administration on his estate. After paying [**29]  the debts, he, on the 1st of May 1844, obtained from the complainant a paper in the form of a bill of sale for certain shares of stock in the 

 [*316]  Bank of Baltimore, that had belonged to his father, on the alleged consideration of two thousand, six hundred dollars, containing, also, a power of attorney to Schnebly to transfer the stock to himself or to others. Afterwards, about the 13th of August of the same year, as we may infer from the date of the certificate to the order, the orphans court passed an order, on the application of Chew Schnebly, directing him "to pay to the legal representative of the deceased, the balance of the estate, including any bank stock that may be in his possession," and, on the 23rd of August 1844, he exhibited these papers at the bank, and made to himself a transfer of the stock, as follows:
"Being duly authorized, I do hereby transfer to myself ten shares of stock heretofore standing in the name of Samuel A. Chew.
(Signed,)   CHEW SCHNEBLY, Adm'r."
The stock has since been transferred to others, and cannot now be traced, as is alleged by the Bank.
On the 15th of February 1849, the complainant, by his committee, filed a bill against Schnebly [**30]  and the bank, claiming to have the stock replaced, and payment of the dividends accrued since the transfer. The answer of the bank denies fraud and knowledge of the mental condition of Lowman Chew, insisting that it had valid authority to make the transfer. A decree, pro confesso, was taken against Schnebly, and, on final hearing, the bill was dismissed as against the bank. The record comes before us on the complainants' appeal from this decree.
Before considering the merits of the controversy, we will dispose of the objections urged against the frame of the proceedings. There is no doubt that where a defendant omits to demur for multifariousness, the court may, sua sponte, take the objection and dismiss the bill. But whether this will be done or not, must depend on the nature of the case, and the course of proceedings at the time of the hearing. Without intimating whether the present bill is obnoxious to the objection, we think it is not a case in which the court should interfere. The trouble and expense which the demurrer, if well taken, would have prevented, have been incurred. The case is fully 

 [*317]  presented on the record, and the reasons for allowing the objection [**31]  do not apply. Story's Eq. Pl., sec. 281, and notes.
The second point is made on the supposed variance between the allegations and proof, so far, at least, as the bank is concerned, there being no exceptions taken to the bill, under the Act of Assembly. As we understand the case, the charge of fraud is made against Schnebly alone, though it is alleged that, by construction of law, the bank is responsible for the consequences of the means employed by Schnebly to obtain the transfer, for the reason that the papers presented by Schnebly, and on which the transfer was made, did not show that he had legal authority for doing what he proposed to do. There is no averment that the bank had any agency in procuring the execution of the bill of sale. On the contrary, the procurement is ascribed to Schnebly, and the bank is charged with liability, by reason of the mental imbecility of Chew, rendering that paper null and void. As to the fraud, the case is made out against Schnebly, and against the bank, as to the charges on which its responsibility was said to depend. We do not consider the bill as having charged fraud, in fact, against the bank, and, it is proper to add, that its conduct [**32]  in the matter is not open to censure on that ground, however incautious its officers may have been in recognizing papers of the validity of which they had no knowledge.
It was contended, on the part of the appellants, that conceding the incapacity of Lowman Chew, does not avoid the transfer, the bill of sale, and the order of the orphans court, singly or together, did not warrant the act of the bank. We need not pass upon the arguments based on this view of the case, because, if the transfer was liable to objection only on the ground of the legal insufficiency of these instruments, we suppose that the party who sold the stock, and received the consideration, as Chew must be assumed to have done in this aspect of the question, would not be allowed, in equity, to defeat the rights of others, acquired by the transfer. Having obtained the benefit of the transaction, he could not impeach it, and claim to have the stock replaced for his use. The effect of Chew's incapacity, therefore, is a controlling question, 

 [*318]  which it is necessary to decide. The bank's liability depends upon that circumstance. And here we may remark that it is immaterial whether the transfer be void, or merely [**33]  voidable, because, if only voidable, the very object of the proceeding is to annul it, though it would seem, from the current of authorities, that the acts of a lunatic or person non compos, are of the latter class, and do not belong to that which the law deems absolutely void. Key vs. Davis, 1 Md. 32.
There are cases in England to show that such persons are held bound by their contracts, unless fraud or imposition has been practiced, but to this we cannot assent. The doctrine in this country is the other way, and, as we think, is sustained by better reasoning than the English rule, as announced in some of their decisions. The effect, in many cases, would be to place lunatics on the same footing with persons of sound mind, with less effective means to protect the injured party against the fraud, for, at law as well as in equity, fraud or imposition may be relied on, without reference to the mental capacity of the parties, except so far as such defect may give weight to other facts from which the fraud may be deduced. The most cautious persons are liable to be deceived and overreached, and all, of whatever degrees of intelligence, may be relieved when the fraud [**34]  is made to appear. It would deprive these persons of the protection which the law designs to throw around their helplessness if they were held to the same measure of evidence as others, because, by reason of this incapacity, they have not the same opportunities of reaching the facts and exposing the fraud. Their weakness would give strength to the other party. Instead of protecting them, it would arm their adversaries. The present case furnishes an illustration. Here is a bill of sale of a person confessedly of unsound mind, with no evidence adduced by the defendant of the circumstances attending its execution, and no ability on the part of the complainant to furnish them, however fraudulent they may have been. The bank stands on this paper and the subsequent transfer, insisting that they are binding, unless it be shown by proof that he was defrauded or imposed upon, a condition with which it is evident he cannot comply, if his want of capacity is not accepted as evidence of the fraud.

 [*319]  There are cases where the courts have declined to interfere. In these, however, as far as we have examined, the lunatic had had the benefit of the contract, and relief was refused, because [**35]  of lapse of time, the changed condition of the property or other circumstances, and especially where the party appeared to be sane. But these considerations cannot apply here. The case does not show that Chew received one cent for the stock. The presumptions are very strong that he did not. The papers produced by Schnebly, as authority for the transfer, did not warrant it in the form in which it was made, so as to pass the title at law, whatever effect they should have in equity, between parties competent to contract. The bank cannot say that Lowman Chew appeared to be sane, and that there was nothing to excite suspicion as to the state of his mind, for its officers dealt with Schnebly, without even seeing Lowman Chew, and if misled or deceived by Schnebly, the consequences ought not to fall on Chew. It is true, that transfers may be made under power of attorney, but this means a valid power, and the bank takes the risk depending on its execution. The corporation is the custodian of the stock-books, and is concerned to see that all transfers are duly made, either by stockholders themselves, or by sufficient authority to others. In cases of forged powers, the bank is liable, and so [**36]  as to the acts of femes covert and infants. In all such instances, it may be said that everything appeared to be fair and plain; that the officers did not know the instrument was forged, or that the party was a married woman or an infant, yet the corporation must meet the consequences, because the law declares that forged instruments are void, that married women are not sui juris, and that infants are incapable of contracting, except in specified cases. According to the established doctrine, the acts of lunatics and infants are treated as analogous, and, in this view of the present case, the transfer may be avoided.  1 Md. 43. In all these instances, there may be no actual fault on the part of the bank, but the legal conclusion results from the justice and expediency, in such transactions, of casting the loss on those who can best provide against it. A bank may refuse to recognize the power of attorney if not satisfied of its 

 [*320]  entire genuineness. It may require the personal attendance of the party, for the very purpose of determining such matters of fact as may give rise to disputes. Considering the evidence touching the appearance and conduct of [**37]  Chew, we think this transfer would not have been allowed, if he had offered to make it in person. As the bank has acted without this precaution, and recognized his bill of sale and power, the consequences attach in the same manner as in many other cases where corporations deal with persons in whom they, too late, discover they have misplaced their confidence.
As the decree must be reversed and the cause remanded, it is necessary to give directions as to the allowance of interest. There is not the least pretence for charging compound interest, though simple interest should be paid on the dividends accrued since the transfer, from the time that the bank should have settled with the committee of the lunatic. We are not prepared to say that, in this case, the liability commenced at the filing of the bill, but it may be safely and justly claimed from the time that the bank knew that Chew was of unsound mind at the execution of the bill of sale, and this we may certainly take to have been at the date of the first decree, (1st of June 1855,) which was passed on an agreement of the parties embracing that fact. The bank ought then to have settled the case without further litigation.
Decree  [**38]   reversed and cause remanded. 

161 of 196 DOCUMENTS 

WESLEY RICKETTS and JOHN WHITTINGTON vs. ROBERT W. PENDLETON.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 320; 1859 Md. LEXIS 78 

July 15, 1859, Decided 

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

Assumpsit, brought on the 11th of May 1855, by the appellants, as holders, against the appellee, as endorser of a promissory note for $ 5000, drawn by H. S. Ward & Co., dated "Baltimore, May 18th, 1854," at four months, payable to the order of the defendant, and by him endorsed. Plea, non-assumpsit.

1st Exception. The plaintiffs offered in evidence the note and protest, having proved the defendant's endorsement of it. The protest states that the notary, at the request of the Citizens Bank of Baltimore, bearers of the original note, "presented the said promissory note at the Merchant's Exchange, Post Office, and other places of public resort, but could not find any person who would pay said note," wherefore he protested it, "and, on the same day, addressed written notice to the endorsers of the said promissory note, informing them it had not been paid, payment therefor having been demanded and refused, and that they would be held responsible for the payment thereof. Notices for endorsers left at their respective places of business."

The defendant then proved by Henry S. Ward, a competent witness, that the signature, "H.  [**2]  S. Ward & Co.," signed to the note, as makers thereof, is in his handwriting, and that this firm was composed of himself and James I. Wright. This witness also proved, that the defendant, Pendleton, wrote his name on the back of the note at the request of witness. The counsel for the defendant then proposed to the witness this question: "Was there any agreement, and what agreement, if any, between you or the firm of H. S. Ward & Co. and the defendant, under which the latter wrote his name on the back of said note?" The plaintiffs' counsel objected to this question and enquired of the witness, whether the plaintiffs, or either of them, were or was present at the making of said agreement? and he replied that neither of them was present. The court then enquired of defendant's counsel, what was their object in proposing this question? The counsel for the defendant thereupon stated, that they expected to prove that the defendant wrote his name on the back of said note under a special agreement with the firm of H. S. Ward & Co., to the effect that the note was not to be delivered as a note endorsed by the defendant, unless and until a bill of sale of the steamer Jewess was executed and delivered [**3]  by the owners thereof to the said H. S. Ward & Co., and until a first lien was given by said H. S. Ward & Co., to the defendant, on said steamer, and that they were informed that they could prove, and expected and intended to offer proof, that the plaintiffs received the said note from H. S. Ward & Co., with express notice and actual knowledge of the agreement and understanding on which the note was endorsed by the defendant. The plaintiffs still objected to the question, but the court (LEE, J.) stated, as its opinion, that the agreement, proposed to be shown to have been made between H. S. Ward & Co. and the defendant, would not, per se, be admissible in evidence, but was admissible in connection with the further facts proposed to be given in evidence on the part of the defendant, and that if the defendant should fail to prove such facts further proposed to be given in evidence, that then the court, on application of the plaintiff's counsel, would instruct the jury, that they should disregard the evidence of the agreement between the said H. S. Ward & Co. and the defendant, in case such agreement, as proposed, shall be proved. To this ruling the plaintiffs excepted.

2nd Exception.  [**4]  In addition to the matters and evidence stated in the first exception, the defendant proved by the witness, Ward, the agreement between Ward & Co. and the defendant, as stated in the first exception, and that it was made in the hearing of Ricketts, one of the plaintiffs, and if he did not hear it, he might have heard it, as it was audibly stated and talked of in his presence, at the time the note was made, endorsed and delivered to him. This witness also proved the violation of this agreement by the conveyance of the steamer to James I. Wright instead of the firm of H. S. Ward & Co., and that neither of the makers of the note resided, or had any place of business, in Maryland, at the time the note was made, or when it became due.

The plaintiffs then, having first proved its due execution, offered in evidence a written contract between the plaintiffs and Wright, dated the 12th of April 1854, by which the former agreed to sell to the latter the Jewess for $ 30,000, of which $ 10,000 was to be paid in cash on delivery, and the balance in four and six months, in approved negotiable notes, Wright to have ten days to complete the terms of sale. They then further proved by their book-keeper [**5]  and clerk, who were present when this note was executed and delivered, that there were present, at that time, in the counting-room of the plaintiffs, the defendant, Ward, Wright, Ricketts, witnesses, and perhaps others; that the above contract was, on that occasion, read in the hearing of defendant, Ward, and Wright, as the contract between the plaintiffs and Wright for the purchase of the Jewess, and was placed, by Ricketts, in the hands of defendant, and after the latter had heard it read Ward signed the name of H. S. Ward & Co., as makers of the note, payable to the order of the defendant, who then endorsed it and delivered it to the plaintiffs in part payment of the purchase money for the steamer; that at this interview, when the note so passed, these witnesses, though paying particular attention to what was passing, heard nothing said by any person that the note was not to be used until a mortgage was given to secure the defendant for his endorsement, or that any transfer of the steamer was to be made to H. S. Ward & Co.

The defendant then offered in evidence the bill of sale of the steamer, from the plaintiffs to Wright, and the plaintiffs then asked the following instruction [**6]  to the jury:

If the jury believe from the evidence, that the note in suit was endorsed by the defendant, and passed to the plaintiffs by the defendant, or by his authority, in part payment of the purchase money of the steamer Jewess, agreed to be paid by James I. Wright upon the contract offered in evidence, and that in pursuance of this contract the plaintiffs conveyed the steamer to Wright, and that the note has not been paid, and that the plaintiffs are holders thereof, then the plaintiffs are entitled to recover in this case.

The defendant then offered two prayers as follows:

1st. That the notarial certificate of protest, offered in evidence by the plaintiffs, is not sufficient legal evidence that the note was duly presented for payment, if the jury shall find from the evidence, that the makers of the note had not, and that neither of them, at the time the note was made, had their or his domicil or place of business within the State of Maryland.

2nd. That the notarial certificate of protest, offered in evidence by the plaintiffs, is not sufficient legal evidence that due diligence was exercised to make presentment of the note for payment, if the jury shall find [**7]  from the evidence, that neither of the makers of the note, at the time the same was made, had their or his domicil or place of business within the State of Maryland.

The court refused the plaintiffs' prayer and granted those of the defendant, and to this ruling the plaintiffs excepted.

3rd Exception. The plaintiffs' counsel then produced as a witness, the notary who protested the note, stating, at the time, to the court, that before the meeting of the court on yesterday, and before the argument of the prayers had been commenced, he had issued a subpoena for this witness, and was informed by the sheriff that he could not be found, and that on this morning, before the meeting of the court, the counsel urged upon the sheriff to have the witness in court by the hour of its meeting, and that he is now in court for the first time, to the knowledge of the counsel or his clients, and that the plaintiffs expected to prove by this witness, that he had used due diligence and every reasonable effort, as notary, to make presentment and demand payment of the note, but could not find out, after due inquiry, where the makers thereof lived, or where their place of business, if any, was located.  [**8]  The defendant objected to the introduction of further testimony and relied on the 35th and 36th rules of court, which are set out in this exception. These rules are to the effect, that "the court will ordinarily require that the whole of the evidence intended to be produced by plaintiff and defendant shall be offered before any prayer is made to the court for instructions thereon," and that "after all the testimony intended to be offered by plaintiff and defendant shall have been introduced, the court will expect to be furnished with all the prayers which the parties respectively may propose to found thereon;" and that the prayers shall be argued together. It was admitted the witness is the notary who made the protest, that he resides in the city of Baltimore, and was in court this morning, before the decision of the prayers was pronounced by the court, and was seated within the bar during the time occupied by the judge in the delivery of his opinion, being about one hour. It was further admitted that a subpoena was issued yesterday, before the meeting of the court, by plaintiffs' attorney, for this witness, and that he was, for a short time, yesterday, in court, but the plaintiffs'  [**9]  counsel stated he was not aware of his presence in court at that time, but was aware of his presence in court this morning. It was further admitted that no leave was asked or reserved, on either side, to offer further testimony, and that the plaintiffs' counsel had not intimated, in any way, either to the court or to the counsel for the defendant, that he desired to examine this witness, until the offer now made to examine him. The court refused to permit the witness to be examined, and to this ruling the plaintiffs excepted, and the verdict and judgment being against them, appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

An agreement between an endorser and the makers of a negotiable promissory note, that it was not to be delivered as a note endorsed, unless and until a bill of sale of a steamer was executed and delivered by her owners to the makers, and until a first lien was given thereon, by the latter to the endorser, is not, per se, evidence in an action on the note by the holder against the endorser.

But such an agreement is admissible in evidence in connection with the further proof, that the plaintiffs received the note from the makers with express notice and actual knowledge of the agreement and understanding on which the note was endorsed by the defendant.

From such evidence the jury might infer that the plaintiffs acquiesced in the agreement and accepted the note, subject to its stipulations and conditions.

A defendant may show by parol, that a note, on which he is sued as endorser, was delivered as an escrow, or that it was delivered to the plaintiff to be held upon a condition to be performed before the interest of the holder could attach.

The certificate of the notary is made, by the Act of 1837, ch. 253, prima facie evidence, but, like all other evidence, it must be submitted to the jury and passed upon by them.

The sufficiency in law of the demand and notice, as evidenced by the notarial certificate, to charge the endorser, must be determined by the court.

In the absence of proof to the contrary, the presumption is, that a note is payable at the place where it is dated.

When the maker does not reside, and has no place of business, in the State where the note is payable, no demand upon him is necessary in order to charge the endorser.

Facts stated in an exception, as having been offered to be proved, must, in the decision by the appellate court, of the points raised by the exception, be taken as true.

Rules of court are necessary for the orderly transaction of its business, aud where an inferior court, in the proper enforcement of its rules, refuses to permit evidence to be taken after the testimony is closed, and the prayers submitted, its ruling, on such a point, will not be reversed.  

COUNSEL:
Geo. E. Mortimer and St. Geo. W. Teackle for the appellants, argued:

1st. That there was error in permitting the question stated in the first exception, to be put to the witness, and in admitting the answer of the witness thereto. The question was wrong in form, being leading, and the testimony was irrelevant. Mere knowledge is not assent, and the defendant's liability could not be affected unless the plaintiffs assented to the agreement. The offer was not followed up, and the evidence, when looking to the offer alone, was not admissible, because knowledge [**10]  on the part of the plaintiffs of the contract, without assent to it as parties, would not be sufficient to relieve the defendant from his liability on the note.

2nd. That there was error in refusing the plaintiffs' prayer, and in granting these of the defendant, as stated in the second exception. The defendant's prayers concede that if the makers resided in the State, the protest would be sufficient, and the Act of 1837, ch. 253, makes the protest prima facie evidence of what is therein stated, whether the makers are nonresidents or not. But if the maker lives (as these prayers concede) or removes out of the jurisdiction of the place where the note is dated, and where it is presumed to be payable, the holder is not bound to present it, or make demand anywhere. On this point, see 3 Md. Rep., 251, Nailor vs. Bowie. 3 Kent, 96. Story on Prom. Notes, secs. 205, 231, 236. Story on Bills, sec. 353. 3 Johns, 202, Mason vs. Franklin. Ibid., 208, Root vs. Franklin. 10 Martin, (La. Rep.,) 643, Hepburn vs. Toledando.

3rd. That there was error in the refusal of the court to permit the witness to be examined, and to testify in regard to the matters which the appellants expected to prove [**11]  by him, as stated in the third exception. This court can review the construction of the rules of the court below, when set out in the record. Evan's Pr., 297. 2 H. & G., 136, Morton vs. Beall's Adm'r. 2 Gill, 347, Gist vs. Drakely.

Lloyd W. Williams and Wm. Schley, for the appellee, argued:

1st. That the evidence purposed to be given on the part of the defendant, of the special agreement under which he wrote his name on the back of the note, and of the knowledge of the plaintiffs of this agreement, when they received the note, and of the open violation of this agreement, was proper and admissible, to show that the defendant did not endorse the note to the plaintiffs; that it was, in fact, delivered to the plaintiffs to be held upon a condition to be performed before the interest of the holder would attach. 2 New Hamp., 171, Moody vs. Leavitt. 8 Mees. & Wels, 494, Marston vs. Allen. 40 Eng. C. L. Rep., 94, Adams vs. Jones. 64 Eng. C. L. Rep., 317, Bell vs. Ingestre. 1 Eng. Law & Eq. Rep., 229, Lloyd vs. Howard. 3 Eng. Law & Eq. Rep., 379, Smith vs. Braine. 4 Eng. Law & Eq. Rep., 366, Southall vs. Rigg. 5 Bos. & Pull., 170, Goggerly vs. Cuthbert.

2nd. The prayer of the [**12]  plaintiffs was properly rejected, for, besides other strong objections, it withdraws from the jury the consideration of the material facts of presentment and notice. Even where the proof is uncontradicted, all questions of fact must be submitted to the jury. 10 Md. Rep., 118, Boyd vs. McCann. 9 Md. Rep., 194, Haney vs. Marshall.

3rd. The notarial certificate proves only that the notary went with the note to the Exchange, Post-Office, &c., and did not find any person who would pay the note. It was a mere formality. It cannot be inferred from the facts stated, that he made any inquiries, there or elsewhere, as to the makers, or that he presented the note to any one. The Act of 1837, ch. 253, changed the law only to the extent of making the certificate prima facie evidence of presentment in the manner therein stated. It has no further efficacy. 1 Md. Rep., 68, Graham vs. Sangston. Ibid., 511, Hunter vs. Van Bomhorst. 3 Md. Rep., 202, Boehme vs. Carr. Ibid., 258, Nailor vs. Bowie. 10 Md. Rep., 98, Sasscer vs. Whitely & Stone. 11 Md. Rep., 486, Moore vs. Hardcastle.

4th. It was the clear duty of the notary, the holder, and all interested in the duty of making presentment, to ascertain,  [**13]  if practicable, the residence of the makers, and to make diligent efforts for that purpose, and to present the note for payment to the makers. The contingent liability of the endorser is not to be converted into a fixed liability to pay, unless this be done if possible. Whoever buys a promissory note is bound, if he seeks to charge the endorser, to ascertain the domicil or place of business of the makers. See, in addition to the cases above cited, Story on Prom. Notes, secs. 205, 251; 1 Am. Leading Cases, 185, 196, 215; 19 Johns, 391, Woodworth vs. Bank of America; 3 Denio, 145, Taylor vs. Snyder; 1 Comstock, 321, Spies vs. Gilmore, et al., and same case in 1 Barb., 158. Due diligence is a question of law. 7 Gill, 231, Bell vs. Hagerstown Bank.

5th. The refusal of the court to permit the plaintiffs to adduce new evidence-in-chief at the stage of the cause in which it was proposed to do so, and under the circumstances of the case, was justified by the rules of court referred to, and the rules themselves are essential to the orderly administration of justice, and to the preservation of open and candid practice. It is wisely confided to the discretion of the judge at the trial, who,  [**14]  where the purposes of justice require it, may, consistently with the rules, always permit the introduction of further evidence. Such rules are legal and cannot be disregarded. 2 Gill, 330, Gist vs. Drakeley. 3 Md. Ch. Dec., 320, Abercrombie vs. Riddle.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*328]  BARTOL, J., delivered the opinion of this court.
We find no error in the ruling of the Superior court upon the question presented by the first bill of exceptions. The alleged agreement between the defendant and H. S. Ward & Co., 

 [*329]  was not, per se, evidence in this cause, but we concur with the court below, in the opinion that it was admissible, taken in connection with the other facts, which the defendant proposed to prove, and which were embraced in the offer, namely: "that the plaintiffs received said note from H. S. Ward & Co., with express notice and actual knowledge of the agreement and understanding on which said note was endorsed by defendant."
For the purposes of this exception, the fact thus offered to be proved must be taken as true, and is evidence from which the jury might infer that the plaintiffs acquiesced [**15]  in the agreement and accepted the note, subject to its stipulations and conditions.
There can be no doubt that it is competent for a defendant to show by parol that a promissory note, on which he is sued as endorser, was delivered as an escrow, or that it was delivered to the plaintiff to be held upon a condition to be performed before the interest of the holder could attach. Bell vs. Ingestre, 64 Eng. C. L. Rep. 317.
In the case before us, in order to bind the plaintiffs by the alleged agreement, it was necessary for the defendant to prove to the satisfaction of the jury, that they (the plaintiffs) were parties to it, or had knowledge of it, and accepted the promissory note, to be held by them, subject to its stipulations and conditions. In our opinion, the offer of the defendant was not supported by the proof given under it. This question might have been raised by an application to the court, based on its legal insufficiency. No such application was made, and we are compelled to pass on the exception, as it was taken at the trial and presented in the record.
The second exception brings before us for review, the action of the Superior court upon the prayers, [**16]  of which the plaintiffs offered one that was rejected, and the defendant two, which were granted.
The plaintiffs' prayer was properly refused. In order to fix the liability of the defendant, notice to him of the non-payment of the note was necessary. That was evidenced by the certificate of the notary, which the Act of 1837, ch. 253, makes 

 [*330]  prima facie evidence, but, like all other evidence, it must be submitted to the jury and passed upon by them. 9 Md. Rep., 194. 10 Md. Rep., 118. Ibid., 234.
The sufficiency in law of the demand and notice, as evidenced by the notarial certificate, to charge the defendant, must be determined by the court. In this case, that depends upon the fact that the makers of the note were non-residents, which ought, also, to have been submitted to the jury by the plaintiffs' prayer.
In granting the defendant's prayers, the court instructed the jury that the notarial certificate "was not sufficient evidence that the note was duly presented for payment." This instruction, we think, was erroneous. The note was drawn by Ward & Co., who were, at the time of making it, and continued to be, non-residents of the [**17]  State of Maryland. It was dated "Baltimore," and the presumption is, in the absence of proof to the contrary, that it was payable there. 10 Md. 103. When the makers of a note do not reside in the State, and have no place of business within the State, no demand upon them is necessary. Story on Prom. Notes, sec. 236. 3 Kent's Com., 96.
The prayers of the defendant, in this case, assume the fact that the makers of the note "had not, nor had either of them, his or their domicil, or place of business, within the State of Maryland." That fact excused the holder from making demand upon them in Baltimore, where the note was payable, for the attempt to do so would have been futile. There was, therefore, in our opinion, error in granting the defendant's prayers.
The action of the Superior court, set out in the third exception, was in conformity with its 35th and 36th rules of practice. Such rules are necessary for the orderly transaction of the business of the court, and we think they were properly enforced in this case.
Judgment reversed and procedendo ordered. 

162 of 196 DOCUMENTS 

ALFRED G. BENSON vs. HIRAM KETCHUM.--SAMUEL F. TRACY vs. HIRAM KETCHUM.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 331; 1859 Md. LEXIS 79 

July 15, 1859, Decided 

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

The records in these appeals show, that on the 28th of March 1854, Tracy filed, in the court below, a bill against Benson and the Barredas, alleging, among other things, that Benson had agreed to pay Tracy one dollar per ton on all guano which might be imported into the United States by Benson, and praying that the Barredas might be enjoined from paying over to Benson certain funds in their hands, until this claim of Tracy, to a portion thereof, had been duly satisfied. Subsequently, $ 11,882 of this fund was invested, by agreement of the parties, and under order of the court, to await the decision of this claim set up by Tracy. Afterwards, on the 25th of January 1855, and before there was any determination of the controversy between Tracy and Benson, Ketchum filed his bill in the same court against Tracy, Benson, Jewett and the trustees of the fund, claiming an equitable lien thereon as against all these defendants.

The facts, upon which this claim or equity of Ketchum rests, are as follows: In the year 1852, or before, Benson and Jewett, of the city of New York, entertaining the opinion that the Lobos Islands were not within [**2]  the jurisdiction of Peru, and were open to the vessels of the United States, determined to engage in an expedition to import guano in large quantities therefrom, but before doing this, desiring the protection and countenance of the government of the United States, Jewett addressed to Mr. Webster, then Secretary of State, a letter dated the 2nd of June 1852, in which he states, that he is informed that the guano on these islands may be as rightfully taken by citizens of the United States as of any other country, but being unwilling to violate any treaty of the United States, or any provisions of the law of nations, he requests to be informed by the secretary, whether citizens of the United States, in common with the rest of the world, would have the right to take this article of commerce from these islands.

Mr. Webster, in reply, by letter of the 5th of June 1852, states, that the Department was not aware that the Lobos Islands were either discovered or occupied by Spain or Peru, that their distance was too remote to make them a dependency of these countries, that one Morrell, an American ship-master, might justly claim to be their discoverer, and that under these circumstances [**3]  it might be considered the duty of the government of the United States to protect its citizens who might visit these islands for guano. He also promised to communicate a copy of his letter to the Secretary of the Navy, and suggest that a vessel of war be ordered to repair to these islands for the purpose of protecting from molestation any American citizens who might wish to take guano from them. In consequence of this communication, Mr. Graham, Secretary of the Navy, on the 16th of June 1852, instructed Com. McCauley, commanding the Pacific Squadron, to send a vessel to the Lobos Islands for the protection of the citizens and commerce of the United States. On the 30th of June 1852, Benson and Jewett entered into a contract with Ketchum, which is the foundation of his claim in this suit.

This contract recites, that Benson and Jewett had chartered a number of vessels to proceed to the Lobos Islands to obtain cargoes of guano, to be disposed of as an article of commerce, and intended to become interested in other vessels, for the same purpose, during the ensuing six months, and then declares, that "in consideration of valuable services rendered us, in respect to obtaining access [**4]  to and procuring said guano, by Hiram Ketchum, of the City of New York, we" (Benson and Jewett) "do hereby jointly and severally promise said Hiram Ketchum to pay him a sum or sums of money, equal to the quarter part of our net profits, on each and every ship, (deducting first therefrom the expenses, commissions, &c., for doing the business,) as aforesaid chartered, and hereafter to be chartered, or caused to be chartered, by us, or either of us, during the ensuing six months, and in consideration of said services, we do hereby promise said Ketchum an account of each and every vessel chartered, or caused to be chartered, by us, or either of us, from time to time, and also an account current to that date, showing the nett profits, from time to time, as said cargoes respectively may be sold."

On the 21st of August 1852, Mr. Webster wrote to Mr. Osma, the Peruvian Minister, his letter of that date, in which he revises the question, and concludes with stating that the President thought it advisable that instructions should be sent to the charge of the United States at Lima, and to the naval force in that quarter, to prevent collision. He promises also that no protection would be afforded [**5]  to the authors of enterprises, claiming to be citizens of the United States, who might undertake to defend themselves, or their vessels, by force, in the prosecution of any commercial enterprises to these islands. Such acts he declares to be "acts of private war, and their authors would thereby justly forfeit the protection of their own government." On the 25th of August 1852, Mr. Kennedy, Secretary of the Navy, by direction of the President, instructed Com. McCauley to suspend the execution of the order of 16th of June 1852. On the 8th of September 1852, Benson wrote to the President of the United States his letter of that date, in which he claims the protection of, and indemnity from, the government of the United States. On the 20th of that month, Mr. Conrad, acting Secretary of State, informed Jewett, that intelligence had been received at the Department, that the vessels chartered to load with guano, at the Lobos Islands, might receive freight there, or at the other guano islands, on account of the Peruvian government, or the contractors for the export of the article from Peru. To this Jewett replied, by letter of the 22nd of September, that it was impossible for the parties interested [**6]  to accept the arrangement proposed without ruin. On the 18th of November 1852, Benson applied to Mr. Secretary Everett for information in regard to a reported arrangement between the government of Peru and the United States, for a settlement of the Lobos Island difficulty. To this application the government appears to have made no reply, but on the 17th of November 1852, the Peruvian Minister addressed a letter to Mr. Everett, in which he expresses the satisfaction with which he has learned that the President had, after giving the subject the most serious attention, instructed the Secretary of State, in the name of his government, to recognize the rights set up by Peru to the Lobos Islands. He also expresses the pleasure with which he receives the particular recommendation in favor of the vessels despatched by the citizens of the United States to the Lobos Islands, under the impression that they could freely take guano, and he offers, in the name of his government:

1st. To load on account of Peru, at the Chincas, at the rate of $ 20 per ton, all American vessels which left the United States between the 5th of June and the 25th of August 1852, for the Lobos Islands, provided the [**7]  owners or shippers would assign over their contracts to the consignees and agents of Peru in the United States.

2nd. To take at a fair price for the Peruvian government, the instruments or utensils carried by said vessels, and intended for procuring guano.

3rd. To take, also, at the freight of $ 20 per ton, vessels freighted in the Pacific, under orders from the United States, prior to the 25th of August 1852, and which could not have been recalled. In conclusion, he expresses the hope that these measures will satisfy the interest which the Secretary has manifested in favor of the persons who had sent their vessels to the Lobos Islands.

On the 8th of January 1853, Benson entered into an agreement with the Barredas, then the sole commercial agents of Peru in the United States. This agreement states that it was entered into by the Barredas under the instruction of the Peruvian Minister, and "in accordance with the concessions made by him for the taking up, under charter for account of the Peruvian government, of the vessels chartered by Benson to be sent and loaded with guano at the Lobos Islands," and then sets forth several lists of vessels, amounting, in all, to forty-five,  [**8]  which might be embraced within its terms, and provides, generally, that upon the endorsement, by Benson, of the charters of these vessels to the agents of the Peruvian government, that government will furnish such vessels with cargoes of guano from the Chinca Islands, at $ 20 per ton freight on account of the Peruvian government, "provided that the captains of these vessels may agree to load at the Chinca Islands instead of the Lobos Islands," and "that the endorsement of Benson will be void and without effect for those charter parties of vessels whose captains, under any pretence, may refuse to fulfil them." The Barredas were to pay to the vessels the freight stipulated in the charter parties, and "the difference between the freight therein agreed and that of $ 20, allowed by the Peruvian Minister, will be paid to Benson on the same terms as to the vessels, with deduction of five per cent. commissions on total amount of freight at $ 20 that Benson agrees to pay to the Barredas." Fifteen vessels, only, delivered cargoes and were paid freight by the Barredas under this agreement, and from the proportion of freight due Benson under this agreement, the fund in controversy arose.

On [**9]  the 24th of May 1853, Benson and Jewett entered into an agreement "for the purpose of defining their mutual and respective interests in the guano expedition, and their relative rights as co-partners in all the charters of vessels, the arrangement between the government of the United States and Peru, the moneys received, or to be received, on account thereof, and the liabilities therein." This agreement determines that "Benson and Jewett are co-partners in said business and matters, and the interest of each of the parties therein is equal, and their liabilities therein are also equal, and each party is entitled to one-half of all the proceeds thereof, and is bound to pay one-half of all the debts thereof, and neither party is authorised to sign any further agreement, incur any further liabilities, or conclude any further negotiations, without the consent of the other." It gives Benson the sole right of collecting all moneys due to the concern, with the stipulation that one-half shall be paid over, immediately on receipt thereof, to Jewett, and further provides that: "The mutual liabilities of the parties are declared to be equal and even, and the liabilities, in the annexed schedule [**10]  stated, are to be paid as therein provided, but no payment of any sum of money whatever shall be made by either party without the consent of the other." In the schedule of liabilities, annexed to this agreement, are the following: "C. Amount payable to H. K. as per agreement, and payable whenever Benson & Jewett shall agree to pay the same, each advancing his half." "F. The liability, if any, to pay Samuel F. Tracy commissions for services, to be paid only when legally compelled, or when agreed to by both parties. In case Tracy commences an action to recover any sum claimed due him, Jewett agrees to give Benson a satisfactory guarantee to meet his half of any judgment to be obtained."

The bill of Ketchum alleges that, in May 1852, Benson and Jewett entered into a partnership for the purpose of importing guano from the Lobos Islands, and applied to complainant, who is a member of the legal profession, for his professional and personal advice and assistance in their undertaking, and agreed to compensate him therefor, as stated in their agreement of the 30th of June 1852; that complainant did accordingly render, at and before the time of this agreement, his assistance and advice [**11]  to, and materially assisted, said partners in obtaining access to, and procuring guano from said islands; that, subsequently to said agreement, and after many vessels had been chartered by said partners, and a number had sailed, the government of the United States disavowed the right of its citizens to take guano from these islands, and their title to its protection in so doing; that thereupon, after certain negotiations between our government and that of Peru, it was agreed that the Peruvian government should assume, upon certain conditions, the charter parties entered into by Benson and Jewett; that this arrangement was assented to by Benson for himself and Jewett, and was finally consummated by the agreement between Benson and the Barredas, the agents of the Peruvian government, of the 8th of January 1853; that, subsequently, Benson and Jewett entered into the agreement of the 24th of May 1853, regarding their said partnership interests and liabilities, to which they annexed a schedule of certain of their liabilities in reference to said partnership, in which the agreement of the 30th of June 1852, between them and complainant, is mentioned and admitted. The bill further alleges,  [**12]  that on the 3rd of May 1854, a bill was filed in the court below, by Jewett against Benson and the Barredas, to obtain an account and adjustment of said partnership matters, and a portion of the profits thereof, alleged to be awaiting Benson's order, in the hands of the Barredas, and that the answer of the latter thereto has been filed, with a statement of the number of vessels assigned to them, the number of tons of guano brought by such vessels, and, also, of the money received for freight, and the amount subject to Benson's order; that prior to these proceedings, on the 28th of March 1853, a bill was also filed in the same court by Tracy against Benson and the Barredas, alleging that Benson had agreed, for certain valuable considerations, to pay him the sum of one dollar per ton on all guano that might be imported into the United States by Benson, and praying for an injunction to prevent the Barredas from paying over to Benson any funds in their hands till his claim to a portion of the same was satisfied; that the difference between Benson and Jewett having been amicably arranged, it was agreed between them and Tracy, and the Barredas, that Tracy should abandon his claim against [**13]  all the fund in the hands of the Barredas, except the amount of $ 11,882, which should be invested to await the result of his suit, which was accordingly done, and the remainder of the fund in the hands of the Barredas was paid over by them to Jewett for Benson and himself, the bill of Jewett dismissed, and also that of Tracy, as against the Barredas, so that there remains of this fund, within the court's jurisdiction, only the sum of $ 11,882, arising under the aforesaid charter parties, and subject to complainant's equitable lien. The bill further charges that Benson and Jewett have received, under said contract with the Peruvian government, more than $ 50,000, clear nett profits, to one-fourth of which complainant is entitled under his aforesaid contract with them, and which the said sum of $ 11,882, so as aforesaid invested, subject to the court's order, is insufficient to cover; that Tracy has no right or claim to this fund, in any way, for the reasons that he rendered no lawful service of any sort to Benson, or Benson and Jewett, and the agreement made with him by Benson was made without the knowledge of Jewett and against his wishes, as both Benson and Tracy well knew, and because,  [**14]  in any event, the lien of the complainant, as by the date of his agreement will appear, was prior to that of Tracy, and ought, in equity, to be first enforced. The bill prays, among other things, for an account from Benson and Jewett, of all moneys received by them from all sales of guano brought into the United States in each and every vessel chartered by them, or either of them, prior to and during the six months next ensuing the 30th of June 1852, as well moneys received from the Barredas, as from all other persons, on account of sales of guano imported in such vessels, and of all expenses, commissions, &c., properly deducted by them from such moneys, and of the actual profits accruing to them from sales of guano imported in such vessels, and that they may pay over to complainant his proper share thereof, according to his aforesaid agreement with them, and that the whole of the money so invested may be paid over to him, or such part thereof as he is justly entitled to from Benson and Jewett, and for general relief.

Jewett, in his answer, admits the partnership with Benson, the agreement with the complainant, the rendition by him of the services contemplated thereby, the transfer [**15]  of the charter parties to the agents of the Peruvian government, the subsequent agreement between himself and Benson, and the institution and arrangement of suits by himself and Tracy against Benson and the Barredas, as alleged in the bill. He denies that he ever entered into any contract with Tracy, or that Benson could have made any, which would give Tracy a claim upon the partnership funds. He also denies that he has received his full share of the partnership profits, and alleges that the amount invested by the order of the court, and that received by Benson, over and above his proper share, is more than sufficient to meet all the partnership liabilities. He further states his inability to answer concerning the number of tons of guano imported, or the amount received by Benson from the Barredas, Benson having managed that part of the business, but he believes the statement filed by the Barredas, in the suit instituted by himself against them and Benson, to be correct. He assents to a decree against the fund to the extent of such claim as the complainant may establish.

Benson, in his answer, admits the agreement with the complainant, and though denying that he rendered any service [**16]  whatever, as contemplated by the contract, respondent alleges his willingness to carry out the agreement precisely as if such services had been rendered. He avers, that after having chartered a number of vessels, and incurred great expense for the adventure, the United States government disavowed the right of its citizens to take guano from the Lobos Islands, in consequence of which his vessels were prevented, by an armed force from Peru, from loading at those islands, and as the sole consideration of the agreement with the complainant was, that the latter had stated that he had procured such access and rendered such assistance, which respondent then fully believed he had done, and that his services were valuable on that account, yet the complainant was mistaken and had deceived himself and respondent, though unintentionally and without fraud, and had not procured such access, but had wholly failed to remove or prevent the anticipated difficulty with Peru, the removal or prevention of which was the sole consideration for the agreement to pay for his services, and, therefore, the consideration for the agreement has entirely failed, or in fact never existed, and the complainant is neither,  [**17]  in law or in equity, entitled to receive any thing thereon. He further avers, that the expedition was thus utterly broken up, and having learned from public rumor, that he could probably make some arrangement with the Peruvian government by which he could be saved from ruin, he entered into such arrangement as was virtually a transfer of the charter-parties, held by him, to that government, and a total abandonment of any idea of procuring cargoes for the vessels, on his own account. He denies that he accepted or assented to any government arrangement, such as stated in the bill, and avers that his arrangement with the Peruvian government is, in no way whatsoever, connected with his contract with the complainant, but is entirely new matter, which the complainant has no right to inquire into or demand an account of. He further avers, that so far from having received any profit from the adventure, it has resulted in heavy loss, he never having received more than $ 15,000, and the expenses having already largely exceeded this sum, and numerous suits are now pending against him for breach of these charter-parties, and that the complainant can have no such interest as entitled him to any [**18]  payment out of the result of the expedition and sales and transfers of the charter, except on the principle that he is a partner, in which case he is responsible for a portion of the losses.

The trustees of the fund, in their answer, admit that they hold the same to abide the result of the controversy between Tracy and Benson, and aver they have no knowledge of the other matters alleged in the bill, except the filing of the bills by Tracy and Jewett against Benson and the Barredas, which they admit.

Tracy appeared but failed to answer, and an interlocutory decree was obtained against him, under which a commission to take testimony was ordered to be issued, and it was agreed as between the complainant and the defendants, who were not in default, that such commission shall be taken as a commission-in-chief. The testimony taken shows substantially the facts heretofore stated.

The cause having been set down for hearing, Benson filed an exception, that under the contract sued on, and under the averments of the bill, the complainant cannot recover any part of the freights agreed to be paid to Benson, under the agreement of the 8th of January 1853, and likewise objected that [**19]  the complainant's claim is properly cognizable in a court of law, and he, therefore, objects to the court's assuming jurisdiction thereof.

At the hearing, Tracy, by consent, filed his agreement with Benson, dated the 23rd of November 1852. This agreement, after reciting the charter of vessels by Benson, the refusal of Peru to permit them to visit the Lobos Islands, and in consequence of such refusal, the suspension, by our government, of its orders guaranteeing protection to its citizens, proceeds as follows: "And whereas said Tracy has induced Joaquin I. De Osma, the Minister from Peru, (in consideration of its being a final settlement of the Lobos Island question, between the government of the United States and that of Peru,) to consent to load all of the said vessels, for account of the Peruvian government, at a freight of $ 20 per ton, of 2240 pounds avoirdupois, for every ton of guano delivered at a port of discharge. Now, in consideration of the premises, the said Benson hereby promises and agrees to pay to the said Tracy, his his heirs or assigns, one dollar on each and every ton of guano that shall be delivered by all of said vessels, and said one dollar on each and every [**20]  ton so delivered may be paid to said Tracy by the agents of the Peruvian government, on presentment to them of this agreement, which payment so made shall be in part payment of the amount that said Benson is to receive for the freights and charters of said vessels."

The cause was then argued by the solicitors of Tracy, as well as those of the other parties, and on the 27th of March 1857, the court (KREBS, J.) delivered an opinion and passed a decree, deciding the principal question in controversy in favor of the complainant. This decree is sufficiently stated in the opinion of this court, and from it Benson appealed.

The cause having been, by this decree, referred to a special auditor, for the purpose of stating the accounts between the complainant and Benson and Jewett, directed to be taken upon the pleadings and proof already in, and such other proof as the parties might produce before him, it was agreed that a commission should issue to New York to take testimony in reference to such accounts, Benson, however, not thereby waiving his appeal. Tracy then moved for leave to file his answer, accompanied by a paper intended as such answer. This motion was never brought to a [**21]  hearing or decided by the court. There was also an agreement filed, by which it was agreed that the testimony taken by Tracy, in the suit pending between him and Benson, may be filed with the auditor, or read before him or the court, as if the same had been taken by Tracy, in this cause, after decree rendered, subject however to all exceptions and objections whatever, the purpose of the agreement being only to save the time and expense of taking said testimony over again in this case, but not to admit any thing in regard to the right of Tracy, at this stage of these proceedings, to take or offer any testimony in this cause, or in regard to the admissibility or competency of the testimony in question. This testimony was brought up to this court by a supplemental record, but need not be stated. Tracy then appealed from so much of the order and decree of the 27th of March 1857, as is adverse to his claim.  

DISPOSITION:
Decree reversed with costs and bill dismissed.  

HEADNOTES:

B. and J., having chartered vessels to proceed to the Lobos Islands for guano, agreed, by contract, "in consideration of valuable services rendered" them, "in respect to the obtaining access to, and procuring said guano, by K., to pay him a sum or sums of money, equal to the quarter part of their net profits, on each and every vessel so chartered." This expedition was under the sanction of the State Department, which was then of opinion these islands did not belong to Peru, which opinion was afterwards retracted and followed by an official recognition, by our government, of the right of Peru to them. In consequence of an arrangement of our government, with the Peruvian Minister, the charter-parties of some of these vessels were recognized on certain conditions, to be effected through an agreement with the commercial agents of Peru in this country. B. then made an agreement with such agents, to endorse to them the charter-parties, and to receive therefor certain specified freights, provided the captains of the vessels agree to load at the Chincas instead of the Lobos Islands. From these freights the fund in controversy, in this case, arose. B. and J. subsequently entered into an agreement to define their mutual interests and liabilities in the guano expedition, and their relative rights as co-partners in all the charters of vessels, the arrangement between the government of the United States and Peru, and the moneys received, or to be received, on account thereof; and by this agreement they ascertained their interests to be equal, and that the liabilities in an annexed schedule should be paid as therein provided, but no payment to be made by either party without the consent of the other. In this schedule is "amount payable to K., as per agreement, and payable whenever B. and J. shall agree to pay the same, each advancing his half." The fund was brought under the direction of the court, in a suit by a third party, who claimed a lien on the the same for services rendered B. After this, K. filed his bill against B. and J., claiming a lien on this fund, under a contract with them, and asking an account of the profits of the expedition. HELD:

1st. That a court of equity has jurisdiction in such a case.

2nd. The proof showing that access was not had to the Lobos Islands, nor guano obtained from them, there was a total failure of consideration for the contract with K., and he cannot, in justice, found a claim for services wholly nugatory and valueless.

3rd. Nor can he maintain a lien on the fund, unless he was a partner in the charter-parties transferred to the agents of Peru, and his contract to receive a sum of money, "equal to the quarter part of the net profits," did not make him a partner.

An interlocutory order, under the Act of 1820, ch. 161, against a defaulting defendant, does not preclude him from the benefit of having testimony, which he may produce, considered before final decree. 

COUNSEL:
F. W. Brune, for Benson, argued:

1st. That the contract between Ketchum, and Benson and Jewett, of the 30th of June 1852, which is the foundation of Ketchum's claim, cannot be enforced, 1st, because the considerations on which [**22]  it rested, being for alleged services in seeking to obtain access to the Lobos Islands, for the purpose of procuring guano, while this was prohibited by Peru, to whom those islands belonged, and was also, in fact, discountenanced and condemned by our government in its correspondence with the Peruvian Minister; 2nd, because, by the fair interpretation of the contract, viewed in connection with all the surrounding circumstances, the services, which were the consideration for the contract and the subject of compensation, were the obtaining of the sanction and protection of the American government to the enterprise. This was considered certain after Mr. Webster's letter of the 5th of June 1852, to Jewett, and the contract was therefore signed, but this sanction and protection were emphatically and publicly disavowed by the President through the Secretary, in his letter of the 25th of August 1852, to the Peruvian Minister, and thus the real consideration of the contract failed; 3rd, because this was a secret agreement to use personal and professional influence with the Secretary of State and other public officers, to secure governmental action, and its subject-matter and mode of compensation [**23]  was contrary to the policy of the law. 16 How., 314, Marshall vs. Balt. & Ohio Rail Road Co. 7 Md. Rep., 273, Wildey vs. Collier. Was there any contract by which Ketchum could ask this fund to be appropriated to him? It is not pretended that the fund was derived immediately from the contract of the 30th of June 1852. But what was this contract? and on what grounds do courts of equity specifically enforce contracts? The cases of Carr vs. Hobbs, 11 Md. Rep., 294; Elysville Manf. Co. vs. Okisko Co., 5 Md. Rep., 159; Stoddert vs. Bowie, 5 Md. Rep., 35; Griffith vs. Frederick Co. Bank, 6 G. & J., 439; Geiger vs. Green, 4 Gill, 475, and Rider vs. Gray, 10 Md. Rep., 285, show that the specific performance of contracts is not a matter of right, but rests in the sound discretion of the court, and that the contract must be fair, just, reasonable, bona fide, certain and mutual. Now, testing this contract by these principles, what is it? It is for valuable services rendered in "obtaining access to" and "procuring guano from" the Lobos Islands. By the contract, therefore, Ketchum was to get access to these Islands. What did he do? The record leaves it to inference, and it may be inferred that he [**24]  had something to do with the procurement of the letter from Mr. Webster to Jewett. Did he give the Secretary false history as to the discovery of these islands? or did he impart to him false geographical information? or did he try to persuade and influence him? and, if so, did he disclose to him the fact that he had a large interest in the matter? By his contract he was to get access to islands belonging to a government with which ours was at peace, and enable Benson and Jewett to obtain guano therefrom. How was this to be done? Either by a filibustering expedition or by fair open action on the part of our government. If the former, then the contract was not fair and bona fide; if the latter, then he never got the sanction of our government to the enterprise; the letter of Mr. Webster was not written with the approbation of the President, and on the 25th of August, before a single vessel could arrive at these islands, whatever sanction or protection had been previously afforded by our government, was withdrawn, and the consideration for the contract, in this aspect of it, entirely failed; his services were utterly valueless. Again, was this contract certain? Was he to procure or secure [**25]  access to these islands from our government, or that of Peru? In this respect it is uncertain, and in no aspect in which it can be viewed, is it one which a court of equity would enforce upon a bill filed for its specific execution.

2nd. If Ketchum can recover upon this contract at all, it should be by a suit at law, and equity has no jurisdiction in this case. The mere claim for an account made by the bill does not give equity jurisdiction. His claim, under this agreement, was properly cognizable at law. 7 G. & J., 114, Adair vs. Winchester. 11 G. & J., 426, Oliver vs. Palmer, et al. 2 Md. Rep., 55, Bull vs. Schuberth. 7 Md. Rep., 403, Guyton vs. Flack.

3rd. Under this contract, both at law and in equity, Ketchum can only recover a sum or sums equal to one-fourth of the profits, after deducting expenses, upon the guano contracted to be imported from the Lobos Islands in the vessels mentioned in the contract as chartered or to be chartered, and which guano was to be sold by Benson and Jewett as an article of commerce, and as not a pound of guano was imported by them from the Lobos Islands, while very heavy expenses were incurred in the expedition, Ketchum cannot recover anything [**26]  under this contract.

4th. Under this contract, Ketchum, as a compensation for professional and personal services, stated to have been already rendered, was to receive a sum equal to a quarter part of the net profits from sales of guano, and not a proportion of the profits themselves. He had nothing to do with the contracts of charter, nor had he any interest in or control over them. The sums stipulated to be paid to him were a compensation for his supposed professional labor. This is not a controversy on the part of creditors to make Ketchum liable as a partner, but between the parties to the contract to ascertain its meaning, and under this contract Ketchum was not a partner with Benson and Jewett in the charters which were made, nor in the expedition itself, and, therefore, has no lien whatever upon this fund. 17 Ves., 412, Hamper, Ex-parte. 6 Gill, 412, 423, Kerr vs. Potter. 7 Gill, 268, Mason vs. Higgins. 2 Md. Rep., 16, Glenn vs. Gill. Ibid., 55, Bull vs. Schuberth. 7 Md. Rep., 403, Guyton vs. Flack. Story on Part., secs. 49, 56. Collyer on Part., secs. 25 to 44. 1 Smith's Lead. Cases, 980, 985, 981. 20 Wend., 70, Vanderburgh vs. Hull. 13 Barb., 304, Hodgman vs. Smith. 4 [**27]  Sandf., 321, Ogden vs. Astor. 6 Metcalf, 87, Denny vs. Cabot. 12 Conn., 69, Lo omis vs. Marshall.

5th. If he was not a partner under this contract, nor responsible for losses connected with the charters referred to in it, he can claim no interest in the agreement of the 8th of January 1853, between Benson and Barreda, as this agreement upon its face, in conformity with the arrangements between the two governments upon which it was based, was exclusively for the benefit of the parties interested in the charters to the Lobos Islands, made by Benson, which were to be assigned by him to the agents of Peru under this agreement. This agreement was an act of grace from Peru to Benson as the charter of these vessels in which Ketchum had no interest.

6th. Ketchum can claim no benefit from the agreement between Benson and Jewett of the 24th of May 1853. He is not a party to it. There was no new consideration moving from him on account of it. It excludes the idea that Ketchum was a partner in the matter to which it relates, and was a contract between Benson and Jewett for the sole purpose of defining or restricting, as between themselves, existing rights and liabilities under the Lobos [**28]  Island expedition, and the agreement between Benson and Barreda, and was not for the purpose of creating new liabilities. Under Article C., in the schedule annexed to this agreement, any liability of Benson and Jewett to Ketchum is not recognized, but in fact denied, unless sustained by the subsequent voluntary joint agreement of Benson and Jewett to pay the same, which was not done.

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

1st. That by the agreement of the 30th of June 1852, between himself and Benson and Jewett, Ketchum became entitled, for a past consideration therein acknowledged, to a sum of money equal to one-fourth of the net profits on each and every cargo of guano imported into New York from the Lobos Islands, in the vessels therein referred to, after deducting expenses and commissions, and to an account of each of the vessels as chartered, and of the net profits of every cargo as sold, as well as to a lien on the profits specifically. The consideration recited in this contract is a past and executed consideration; it is not a contract to procure access to these islands, but it recites that valuable services have been rendered by Ketchum, in respect to [**29]  the obtaining access to them, and that such access was not in fact obtained, makes no difference, for if it did, then every attorney's fee would be contingent upon success. Ketchum stands upon the contract thus reciting a past and executed consideration, and it is for the parties who assail it, to show that there was immorality or dishonesty in it, or that it is against public policy. This they have not done. There is not a particle of evidence showing any immorality in the consideration, or that there was any thing dishonest about it. The answer sets up no such defence. Ketchum, in his bill, claims for professional services rendered, and if he furnished Mr. Webster with the geographical and historical information contained in his letter to Jewett, it was an honest and laudable service for which he should be as honestly paid. Nor has the consideration, in fact, failed. The answer of Jewett admits that the services were rendered; they were rendered when Mr. Webster wrote his letter to Jewett, and when the Secretary of the Navy ordered our squadron to protect the vessels going to these islands. This was the government protection which the services of Ketchum procured, and from these [**30]  services the fund in this case was ultimately derived, as we shall show.

2nd. That upon the breaking up of the Lobos Island adventure by political causes, as stated in the evidence, Ketchum had an interest of one-fourth in the disposable value or possible profits of the charter-parties in question; that those charter-parties were assumed beneficially to the charterers by the Peruvian government, at the recommendation of the government of the United States, and expressly on the ground of the frustration of the plans of the parties interested as to the Lobos Islands, by such political action; that Ketchum was consequently within the consideration of the contract with the Peruvian government, and is entitled to be within its benefits, according to his proportionate interest of one-fourth in the charter-parties so assumed, transferred and made profitable. 5 Johns. Ch. Rep., 406, Van Horne vs. Fonda. That the substitution of the Barreda contract for the Lobos Island enterprise is not only confessed by Jewett in his answer, but is expressly recognized, together with the continuing interest of Ketchum in the profits of such substitution, by the memorandum or agreement of May 24th, 1853,  [**31]  between Benson and Jewett. Ketchum, therefore, is entitled to his accounts, as to the substituted contract, precisely as in regard to the subject matter of the original agreement, and to a lien upon the proceeds of such substituted contract as in his bill alleged. There can be no doubt that the subsequent agreement was connected with the original contract and adventure. This adventure was never given up or abandoned till the arrangement with Peru was accepted and substituted in its place. The letters of Benson to the President, and of Mr. Everett, Secretary of State, and of Mr. Webster and De Osma, show, that up to the 17th of November, our government did not relinquish its claim to these islands, and that the original adventure was not then abandoned. Till that period, the government was negotiating the settlement of the question, and making stipulations for the benefit and protection of parties interested in the expedition, and the agreement between Benson and Barreda was made on account of this interference on the part of our government. Ketchum was interested in the identical charter-parties which, under the altered circumstances of the relations between the two governments, were [**32]  assigned to the agents of the government of Peru, and which ultimately worked out the profits of Jewett and Benson, constituting the fund now in court. The mistake or misapprehension of Mr. Webster, and of Ketchum, in regard to our rights to these islands, constituted the whole stock in trade of Benson and Jewett, and it was this mistake which merged the Lobos Island expedition into the Peruvian government contract for the Chinca Island guano. At one and the same time that our government gave up its claim, it made stipulation for the protection of our citizens, and it was a part of this shipwrecked expedition that procured the concession from the government of Peru. It was Ketchum's interest, and his services, and his labor, as well as those of Benson and Jewett, that purchased and procured the very fund now in court. Benson was the trustee to manage the expedition for the benefit of all parties interested, and the agreement subsequently made between him and Jewett shows, that the amount due Ketchum was payable to him out of the partnership between them, because they had succeeded to the rights of the old expedition.

3rd. That the granting of the accounts and the enforcement of [**33]  the lien referred to, were proper subjects of equitable interference, and that the court below decreed properly and with full justification, under the averments and prayers of the bill, in directing an account to be taken, and in making the fund, subject to the lien of Ketchum's claim, to be ascertained thereby. Assuming that Ketchum had rights under the substituted contract, he was clearly entitled to the account and discovery asked for in his bill, and in this view of the case alone, it is a proper one for equity jurisdiction, for the jurisdiction of equity, in cases of account, rests upon the ground that there is not full and adequate remedy at law. 11 G. & J., 470, Stonebraker vs. Kline. 13 Ves., 276, Carlisle vs. Wilson. 1 Sch. & Lef., 305, O'Connor vs. Spaight. 2 Md. Rep., 174, Williams vs. West. Again, the fund has been brought into court upon the bill of Tracy, asking for an account and discovery, and for an injunction, and where a court of equity has once got jurisdiction it will go on and administer full relief to save litigation. 2 Johns. Cases, 431, Armstrong vs. Gilchrist. 10 Johns., 587, Rathbone vs. Warren. Again, though Ketchum is not a partner, yet looking to the terms [**34]  of his agreement, in reference to its jurisdiction, a court of equity will apply the same doctrines which are applicable in the cases of partnership. 1 Story's Eq., sec. 465, note 6.

As to the appeal of Tracy:

His appeal is properly before the court so far as the decree adjudicates between him and Ketchum, but he has filed no answer, is in default, and has taken no exceptions to the averments of the bill, and made no objection to the jurisdiction of the court. After the decree he came in and asked leave to file his answer, but such leave was never granted, and the court below has not decided the question of his right thus to come in and answer, and that question is not now before this court. Prior to the decree no proof was offered on his part, except the agreement between Benson and himself, of the 23rd of November 1852, and we insist therefore:

1st. That the claim of Tracy, even if valid as against Benson and Jewett, or Benson alone, has no force as against Ketchum, being of subsequent date, in derogation of Ketchum's rights, and not an expense within the meaning of Ketchum's contract.

2nd. That whatever may be the incompetency of Jewett and Benson to dispute [**35]  the consideration of the agreement with Tracy, Ketchum, as a prior incumbrancer on the fund, is entitled to proof thereof, such agreement not being even prima facie evidence against him. The agreement with Ketchum, on the contrary, being of prior date is prima facie proof against Tracy, and has not been contradicted.

3rd. That Tracy's claim is proven affirmatively to be without foundation, and is, besides, immoral in its alleged consideration, and against public policy. His own evidence even, if properly in, shows no services whatever on his part, and his contract itself recites a consideration which was never performed, for the Peruvian Minister never did consent to load "all said vessels," as therein stated.

T. Parkin Scott, for Tracy, argued:

1st. That the agreement made on the 23rd of November 1852, between Tracy and Benson, was bona fide and unexceptionable. There is nothing in the conduct of Tracy in this matter; to involve him in any way in the charge of immorality or fraud. From the long acquaintance and friendship existing between him and De Osma, and his familiarity with the subject, Tracy would be likely to present such views to De Osma as would have brought [**36]  about the arrangement under which the guano was obtained, and the proof in the case, and especially in the supplemental record, shows that his influence did bring about this arrangement, and his services having brought about and helped to produce the fund in court, he is entitled, under his agreement, to be paid out of it.

2nd. That Tracy's interest is affected by the opinion and decretal order of the 27th of March 1857, and he is entitled to an appeal and review of that order and action of the court below. 5 Gill, 359, White vs. White. 1 Md. Ch. Dec., 328, Ches. Bank vs. McClellan. 3 Md. Rep., 528, Ware vs. Richardson. 12 G. & J., 275, Clagett vs. Crawford.

3rd. That as Tracy's case was depending, and the fund was brought into court under his bill, so that the court had judicial knowledge of his claim, and his testimony was not then in court, it was error in the court then to pass on his claim.

4th. That the court ought to have permitted Tracy to file his answer, and ought to have consolidated the cases and heard them together. Act of 1820, ch. 161, sec. 3. 2 G. & J., 28, Gibbs vs. Clagett. Ibid., 311, Dorsey's Adm'r vs. Barton. 6 G. & J., 323, Crawfords vs. Taylor.  [**37]  

5th. That the claim of Ketchum being for supposed services to enable Benson to obtain guano from the Lobos Islands with the sanction and protection of the United States government, and such sanction and protection having been refused, there is no consideration for the support of the supposed contract between Ketchum and Benson.

6th. There is no question of jurisdiction as to Tracy's claim. Ketchum, however, has no claim on this fund, and whatever claim he has, it is a claim at law, and not in equity. The fact that his bill claims an account does not, according to Maryland law and practice, give a court of equity jurisdiction. He has no lien on the fund which equity can enforce, because the original agreement on which his claim rests, does not constitute him a partner in the transaction. By it he was to receive "a sum or sums of money equal to the quarter part" of the net profits on each ship, and this does not make him a partner, and he has, consequently, no lien on this fund, even conceding that his contract is valid, and that the consideration thereof did not fail.  

JUDGES:
The causes were argued before LE GRAND, C. J., TUCK and BARTOL, J.  

OPINIONBY:
LE GRAND 

OPINION:

 [*351]  LE GRAND,  [**38]  C. J., delivered the opinion of this court.
This is an appeal from a specific action of the Circuit court for Baltimore city. On the 27th day of March 1857, the court 

 [*352]  declared, in its opinion, that Hiram Ketchum was entitled "to have and recover from the defendants, Benson and Jewett, with preference and without regard to any claim or alleged right of the defendant, Tracy, one-fourth part of the net profits arising from sales of all cargoes of guano, if any such there were, obtained by the said Benson and Jewett, from the Lobos Islands, in vessels chartered, or caused to be chartered, by said Benson and Jewett, for the purposes, and within the period set forth in their contract with the said complainant, proven under the commission in these proceedings, and marked complainant's exhibit, No. 5, as well as one-fourth part of the net profits of the voyages of those of the said vessels, whereof the charter parties were transferred to F. Barreda & Brother, the agents of the Peruvian government, to bring guano to the United States from the Chincha Islands, and which did actually bring such guano under such transferred charters, and earn advance freight thereupon, under such [**39]  transfer, in pursuance of the agreement of said Benson with F. Barreda & Brother, proved under the commission aforesaid, and a copy whereof thereto attached, is marked complainant's exhibit, No. 1, deducting first, however, from said proceeds of sale, if any, and said profits or earnings, all reasonable and proper expenses and disbursements of said Benson and Jewett," &c., &c., "the alleged claim of the said defendant, Tracy, being no part of said expenses, for the purposes of said deduction." The opinion proceeds to say, "that the fund now invested under the order of this court," is liable to the payment of the claim of the complainant when its amount is ascertained, and directs the auditor to state an account and apply the fund agreeably to the instructions given.
The fund in court arose from freights on importations of guano. Without going into a long detail of the facts which led to the enterprise, or a full statement of the incidents which, in its various phases, characterized it, we content ourselves with an examination of the basis on which rests the claim of the complainant, and the decree of the court allowing it, and to that end subordinating, if he have any, the claim [**40]  of the appellant, Tracy, to it.

 [*353]  In the argument of the cause much was said, and ably said, pro and con, in regard to the jurisdiction of a court of equity in a case like the present, We entertain no doubt that the jurisdiction is complete, and that the authorities are full up to the question, but, inasmuch as the view we have of the merits of the case makes the question of jurisdiction unimportant, we forego all citation of cases to show it has properly attached. For, if the complainant has not made out his case, the question of jurisdiction is of no consequence. We are clearly of opinion, that he has wholly failed to prove any claim whatever to any part of the fund. His pretensions, whatever they may be, rest entirely on the paper signed by Jewett and Benson, and dated June 30th 1852, and the paper signed by the same parties, dated the 24th day of May 1853, and the schedule thereto attached.
The first of these papers recites that Benson and Jewett were doing business in the city of New York, and had caused to be chartered a number of vessels to proceed to the Islands of Lobos, in the Pacific ocean, to obtain cargoes of guano, to be disposed of as an article of commerce,  [**41]  and that they intended to become interested in other vessels for the same purpose during the ensuing six months. After this recital it proceeds to say that "in consideration of valuable services rendered us (Benson and Jewett) in respect to the obtaining access to and procuring said guano by Hiram Ketchum, of the city of New York, we do hereby jointly and severally promise said Hiram Ketchum, to pay him a sum or sums of money equal to the quarter part of our net profits on each and every ship, (deducting, first, therefrom the expenses, commissions, &c., for doing the business,) as aforesaid chartered and hereafter to be chartered by us, or either of us, during the ensuing six months," &c., &c.
The other paper--the one of date the 24th day of May 1853--is a memorandum of agreement between Jewett and Benson to define their mutual and respective interests in the guano expedition, and their relative rights as co-partners in all the charters of vessels, the arrangement between the government of the United States and Peru, the moneys received or 

 [*354]  to be received on account thereof, and the liabilities therein. This memorandum ascertains the interests and liabilities of the [**42]  parties to be equal, and that "the liabilities in an annexed schedule stated, are to be paid as therein provided, but no payment of any sum of money whatever shall be made by either party without consent of the other." Among the statements in the schedule is the following:
"C. Amount payable to H. K., as per agreement, and payable whenever Benson and Jewett shall agree to pay the same, each advancing his half."
On the 8th day of January 1853, Benson entered into an agreement with F. Barreda & Bro., to endorse to them the charter-parties to certain vessels, to receive therefor certain specified freights, provided that the captains of the vessels agree to load at the Chincha Islands instead of the Lobos Islands.
The fund invested by order of court, and out of which Ketchum asks to be paid, grows out of these freights, and was brought, under the direction of the court, in a suit instituted by the defendant, Tracy, who claimed to have a lien on the same for services rendered to Benson.
The projected expeditions to the Lobos Islands were under the sanction of the State Department, which, as appears from certain letters of Mr. Webster, the then Secretary of State, was of the [**43]  opinion that those islands did not constitute any part of the territory of Peru, an opinion afterwards recanted, and followed by an official recognition, by our Government, of the right of Peru to those islands. In consequence of an arrangement of our government with the minister of Peru, as alleged by Tracy brought about through his instrumentality, the charter-parties of Benson, to a certain extent, were recognized on certain conditions, which were to be effected through an agreement to be made with F. Barreda & Brothers, the agents of the Peruvian government, for the disposition of guano in this country. The agreement of Benson, to which we have referred, with that house, is the one which consummated the understanding.
The services, for which the complainant was to be compensated, were rendered, to use the language of the paper of the 

 [*355]  30th of June 1852, "in respect to the obtaining access to and procuring said guano (that is, from the Lobos Islands,) by Hiram Ketchum."
The whole proof in the cause shows, that in point of fact access was not had to those islands, nor guano obtained from them. The whole thing was founded on a delusion, namely, that any citizen [**44]  of the United States has the right to visit and procure guano from those islands, without the permission of any one, when these islands were, and are, as much a part of the territory of Peru as its capital. There was a total failure of consideration, and, therefore, the complainant cannot, in justice, found a claim for services wholly nugatory and valueless. Nor can he maintain a lien on the fund in court, unless he were a partner in the charter-parties transferred to F. Barreda & Brother, of the freights of which it originated. He was not to receive one-fourth of the net profits, which would have made him a partner, but a sum of money "equal to the quarter part of the net profits," which did not constitute him one. He was in nowise liable for any losses or engagements of the concern.
Entertaining these views, we will dismiss the bill of the complainant. We avoid expressing an opinion on the validity of the claim of Tracy. He has not fully exhibited his case in proof. When he shall have done so, in the suit brought by himself, now pending, the Circuit court will be in a condition more thoroughly to pass upon it.
The case of Purviance and Dorsey, Adm'r of Dorsey, vs.  [**45]   Barton's Adm'r de bonis non, 2 Gill & Johnson 311, shows, that the decree pro confesso does not preclude Tracy from the benefit of having his testimony considered before final decree.
Decree reversed with costs and bill dismissed. 

163 of 196 DOCUMENTS 

ISAAC S. STRAWBRIDGE and Others vs. THE BALTIMORE and OHIO RAIL ROAD COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 360; 1859 Md. LEXIS 81 

July 15, 1859, Decided 

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

Debt, brought on the 15th of March 1858, by the appellee against Strawbridge and his sureties, upon a bond given to the plaintiff. Plea, nil debet, with an agreement that thereunder all defences may be taken which might be availed of under any form of pleading, and all evidence admitted which would be admitted under any statement of breaches and any pleas filed in the case, and that the defendants shall, each of them, have all advantage they might have if they had severed in pleading.

Exception. The bond and the facts of the case are fully stated in the opinion of this court. The plaintiff asked the court to instruct the jury, that if they find from the evidence the execution and delivery of the bond offered in evidence, and that Strawbridge was, from the time of its execution and delivery, ticket and freight agent of the company, at Ellicott's Mills, and continued to act as such agent until the 21st of July 1856, then the plaintiff is entitled to recover all sums which the jury may find from the evidence he received as such agent, both for passenger tickets and freight, during the time he so acted as such agent, except for [**2]  so much as the jury shall find from the evidence has been paid over to the company.

The sureties in the bond then asked instructions, in substance as follows:

1st. If the jury shall find from the evidence, that at the time of the execution of the bond, Strawbridge had been appointed freight and ticket agent at Ellicotts Mills, then a second class station, and that his duties as an agent, at such second class station, was to receive money for tickets sold by him, and to deliver all freight that might be sent from any first and second class station, but not to receive any money for freight except what was sent from Ellicotts Mills to some second class station, and that he continued to act as agent aforesaid, until December 1854, when the plaintiff made Ellicotts Mills a first class station, and that it is the duty of an agent at a first class station to collect all money on freights, from all first and second class stations, that might be sent to Ellicotts Mills, and also all moneys on freight sent from Ellicotts Mills to any second class station, and for tickets sold by him at said station, and that Strawbridge was, at that time, notified by the plaintiff, that thereafter [**3]  said station was a first class station, and in consequence of said change and notice, larger amounts of money were receivable by him than he could have received as agent of said second class station, then the plaintiff is not entitled to recover from said sureties the sums of money received by Strawbridge and unaccounted for after said station was made a first class station.

2nd. If the jury believe the facts stated in the defendant's first prayer, then the sureties are only liable for such sums of money as Strawbridge received and did not account for after the change to a first class station, which it would have been his duty to have received if it had continued a second class station.

3rd. If the jury believe that after the execution of this bond, the station at Ellicotts Mills was made a first class station, and that Strawbridge was appointed ticket and freight agent at said station, as an agent at a first class station, then the sureties are not liable for any sums of money received and unaccounted for by him, as agent of a first class station.

The court (BREWER, J.) granted the plaintiff's prayer and rejected those of the defendants. To this ruling the defendants [**4]  excepted, and the verdict and judgment being against them, appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

A bond to the Baltimore and Ohio Rail Road Company, in the penalty of $ 3000, recited that the principal obligor had been "appointed by the said company, as ticket and freight agent, at Ellicotts Mills," and was conditioned for the faithful performance of the duties of said office so long as he shall hold the same. At the date and delivery of the bond, Ellicotts Mills was a second class station, but the company subsequently made it a first class station. At first class stations a greater amount of freight is paid than at second class stations, but the duties of the ticket and freight agent are the same at both, viz., to receive all sums payable at his station both for freight and passengers. HELD:

That the change in the regulations of the company, by which this was made a first class station, did not discharge the sureties on this bond.

In construing this bond regard must be had to the intention of the parties when it was executed, and the nature of the duty of the obligor and the character of the obligee must be regarded as explanatory of such intent.

The nature of the agent's duties was not changed, and no new or different duty was imposed on him by the alteration in the regulations of the company, making Ellicotts Mills a first class station, its whole effect being to make more freight payable at that station than before.

The sureties, in executing this bond, must be regarded as having contracted, with reference to the right and authority of the company, by their charter, to make changes, from to time to time, in their regulations, as to their rates of fares and freights, and the points for receiving or delivering freight, in order to carry on successfully their business operations.  

COUNSEL:
Wm. H. G. Dorsey and Thos. S. Alexander, for the appellants.

The appellants contend that by making Ellicotts Mills a first class station, the company so changed the duties and liabitities of this agent, that the sureties on his bond were released from all responsibility on account thereof. This change was not in the ordinary course of business, but an entire change of duties and responsibilities, by which they relieved the bond of another officer, and attempted to throw additional responsibilities upon the sureties of this agent: the company has not the power to begin with a distribution of duties and liabilities amongst its agents, and thus delude these sureties into securityships for such officers, and then to change that distribution so as to affect their liabilities. At the time this bond was executed, Ellicotts Mills was a second class station, and this was known to these sureties, and is to control its construction just as much as if it were impressed on the face of the bond. The decisions, if any such are to be found, that the contract is to be construed most strongly against [**5]  the surety, are contrary to principle and against law. The obligation of a surety is not to be enlarged by implication or by taking ambiguous words of the bond most strongly against him. To show that this change is such as to discharge these sureties we refer to Burge on Suretyship, 114, 115; 9 Law Lib., 56; 9 Wheat., 703, Miller vs. Stewart; 5 Md. Rep., 103, Mayhew vs. Boyd; 1 H. & G., 324, Union Bank vs. Ridgely; 6 G. & J., 247, Sasscer vs. Young.

Thos. Donaldson, for the appellee.

It is indisputable law that any departure as between the obligee and the principal obligor of a bond from the terms of the contract, in their true intent and meaning, operates as a discharge of the sureties, and the authorities cited on the other side clearly support such a proposition. But these authorities though carrying the law of suretyship to the verge of immorality, do not touch the present case. The true question here is, what are the intent and meaning of the contract as shown by a true construction of this bond? On the part of the appellee it is insisted:

1st. That the words of the bond clearly show the intention that the sureties are to be bound for their principal, "as ticket [**6]  and freight agent at Ellicotts Mills," generally, not merely as a second class agent or any other class agent. The words of the bond in themselves, include all the duties consistent with the office of "ticket and freight agent at Ellicotts Mills." When the words are general, the contract is for all liabilities or duties within the terms, and the words are to be construed against the sureties.

2nd. The nature of the agent's duties was never changed at all by making Ellicotts Mills a first class station. The complaint is not that the duties of the office were changed but that the amount of freight he was to receive was increased. The bond, however, made the sureties liable for all money received by Strawbridge for freight, and for tickets at Ellicotts Mills, up to the amount of the penalty of $ 3000. By the change of regulations making this a first class station no new duty was imposed on the agent. He was still to receive money on the same accounts, and at the same place, and the responsibility of the sureties was not increased beyond the amount for which they had originally stipulated.

3rd. The bond of such an officer of a rail road company, must be construed to cover all [**7]  the duties which are annexed to the office, from time to time, by the company whose servant he is, if those duties are consistent with the nature of the office itself, and sureties are presumed to enter into the contract, with reference to the authority of the company under their charter, to make all needful regulations for the transaction of their business, and to change them from time to time, as the exigencies of their business may require. It is perfectly well understood by all persons dealing in any way with rail road companies, that they must, from time to time, make changes in their regulations, as for instance, in the time of running their trains, the hours of departure and arrival, the amount of fares and freight, the points for the receiving or delivering goods transported, the manner, terms and places of receiving payments for passengers and freight, &c. If the bond of a ticket and freight agent were discharged in such a case as the present, because of a regulation which had the effect of merely enlarging the receipts at the station, then any change in the rate of freights or fares, or in the rate of speed, or in the hours of departure or arrival, or any change which would [**8]  increase, or might by possibility have the effect of increasing the receipts, would discharge the sureties. Thus practically there could be no official bond given by such agent, which would be good even for a single week. But such cannot be the law. The case is like the case of the bond of a collector, when an additional tax, in amount, is imposed, which does not discharge the bond.

In support of these positions the appellee refers to Hurlstone on Bonds, 32 in 9 Law Lib.; Burge on Suretyship, 42, 46, 54; 1 Term. Rep., 291, note (a) Barclay vs. Lucas; 3 Bing., 71, Williams vs. Rawlinson; 1 Pet., 73, Minor vs. Mechanics Bank of Alexandria; R. M. Charlton, 29, Planters Bank vs. Lamkin; 2 Paine C. C. Rep., 189, Post Master General vs. Munger; 3 Ellis & Black., 653, Mayor of Berwick vs. Oswald; 6 Bing., 244, Hargreave vs. Smee; 12 East, 227, Mason vs. Pritchard.  

JUDGES:
The causes were argued before LE GRAND, C. J., TUCK and BARTOL, J.  

OPINIONBY:
BARTOL 

OPINION:

 [*365]  BARTOL, J., delivered the opinion of this court.
Just prior to the 9th of April 1853, Isaac S. Strawbridge, one of the appellants, was appointed "ticket and freight agent of the Baltimore and Ohio Rail Road Company, at Ellicotts [**9]  Mills." On the 9th of April 1853, he and the other appellants executed and delivered to the rail road company the bond upon which this action was instituted. The penalty of the bond is $ 3,000; and after a short recital of the fact that Strawbridge had been "appointed by the said company, as ticket and freight agent at Ellicotts Mills," the condition is stated in these words: "that if the said Isaac S. Strawbridge do not at all times hereafter, so long as he shall hold said office, well and faithfully perform the duties of the said office, so that the said company shall suffer no loss, damage or injury on account of any act or acts, either of omission or commission of the said Isaac S. Strawbridge, and without wasting, embezzling, spending, or unlawfully making way with 

 [*366]  the money, property, or effects of the said company, or such as may come into his hands, or under his control, while holding the office aforesaid, then, if the said Isaac S. Strawbridge, Thomas McCrea, John Collier, or Thomas Jenkins, or either of them, or their, or either of their heirs, executors or administrators, shall make due and sufficient recompense unto the said company for such loss, damage [**10]  or injury, wasting, embezzling, spending, misapplying or unlawfully making way, then this obligation to be void--else in full force."
Strawbridge held the situation of "ticket and freight agent at Ellicotts Mills," from the date of his appointment, up to the 21st July 1856. At the last named date, there was due to the rail road company by Strawbridge, for passenger tickets sold by him at Ellicotts Mills, and for freights received by him at the same place, the sums, for which with interest thereon, the appellees recovered judgment in the court below.
After the execution and delivery of the bond, (in the month of December 1854,) the rail road company made Ellicotts Mills a first class station, it having previously been a second class station. At the first class stations a greater amount of freight is paid, than at the second class stations; the duties of the ticket and freight agent are the same at both, viz: to receive all sums payable at his station for both freight and passengers.
The appellants contend that the change in the regulations of the company, by which Ellicotts Mills was made a first class station, worked a discharge of the sureties from the obligation of their [**11]  bond; because in consequence of that change Strawbridge, the ticket and freight agent, received a much larger amount of money than he would otherwise have done.
It is well settled that "the liability of a surety is not to be extended by implication beyond the terms of his contract." 9 Wheaton 703, 2 N. R. (5 Bos. & Pull.,) 180. 12 East., 405.
It is equally well settled that "any dealings with the principal debtor, by the creditor, which amount to a departure from the contract by which a surety is to be bound, and which by possibility might materially vary or enlarge the latter's liability, 

 [*367]  without his assent, discharges the surety." 5 Md. 110. 6 G. & J., 247.
The application of these principles to the present case must depend upon the true construction of the bond. In the recital it is declared that the principal obligor "was appointed ticket and freight agent of the Baltimore and Ohio Rail Road Company at Ellicotts Mills," and by the condition, the sureties bound themselves for the faithful performance by him of the duties of the said office, so long as he should hold the same. The liability under the bond [**12]  to the extent of the penalty is for the officer generally as ticket and freight agent at Ellicotts Mills, without reference to the fact, whether that was a second class or a first class station. In Burge on Suretyship, 54, the author speaking of the liability of a surety says: "He will be liable to the full extent which the terms of the obligation, or the nature of the act for which he has obliged himself, will warrant. Thus, if the terms are general and indefinite, he is bound for all the obligations of the principal debtor necessarily incident to, or resulting from, the contract or act for which he has become surety. In this case he is said to be a surety in omnem causam."
In construing this bond regard must be had to the intention of the parties when it was executed. In Metcalf vs. Bruin, 12 East., 408, Mr. Justice Bailey said: "This bond must have such a construction as the parties meant it to have at the time they entered into it." The same thing was said by the Court of Appeals in the case of the Union Bank vs. Ridgely, 1 H. & G. 324, and in Hurlstone on Bonds, 32, (9 Law Lib.,) it is said: "The nature of the duty of the obligor,  [**13]  and character of the obligee, will be regarded as explanatory of the intent of the parties." Mayor of Berwick vs. Oswald, 72 Eng. C. L. Rep. 295, in the Queens Bench and the same case in the Exchequer Chamber, 77, Eng. C. L. Rep., 653.
Looking at the nature of the office held by Strawbridge, and the extent, objects and powers of the corporation, we have no doubt that the bond was intended to cover the whole defalcation charged against the agent in this case.
The nature of his duties was not changed, no new or different 

 [*368]  duty was imposed upon him by the alteration in the regulations of the company, making Ellicotts Mills a first class station. He was still to receive money for passengers and freights at the same place. The whole effect of the alteration was to make more freights payable at that point than formerly.
In Minor and others, vs. The Mechanics Bank of Alexandria, 1 Peters 46, which was a suit on the official bond of a cashier, the court said, (page 73:) "The bond of the cashier must be construed to cover all defaults in duty, which are annexed to the office, from time to time, by those who are authorized to [**14]  control the affairs of the bank, and sureties are presumed to enter into the contract, with reference to the rights and authority of the president and directors under the charter and by-laws." The condition of the bond was for the faithful execution of the duties of cashier, and it was held responsible for the default of the cashier in not discharging certain duties which had been before performed by the teller, and usually belonged to that office. It is true, in that case, the by-laws pointing out the duties of the cashier provided, "that he shall do and perform all other duties that may from time to time be required of him by the president or board of directors relative to the affairs of the institution," and there was a resolution of the board, passed before the cashier's appointment, which devolved upon him the duties of teller.
The authority is therefore not in all respects applicable to the case before us. But the language cited from the court's opinion expresses the true rule by which this contract must be governed.
It is indispensably necessary for such a corporation as the appellees, "in order to carry on successfully their vast and complicated business operations,"  [**15]  to make changes from time to time in their regulations, to alter their time tables, the rates of charges for passengers and freight, the points for receiving or delivering merchandize, and the manner, terms and places of receiving freights, &c. Such powers are conferred by the charter, and the appellants in executing their bond, must be construed as contracting with the company, "with reference to 

 [*369]  their rights and authority," in the management and regulation of such matters. It follows, from what we have said, that in our opinion the prayer of the plaintiff was properly granted, and those offered by the defendant were properly refused by the Circuit court.
Judgment affirmed. 

164 of 196 DOCUMENTS 

ELIAS N. GARDNER vs. HUGH JENKINS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 58; 1859 Md. LEXIS 52 

July 1, 1859, Decided 

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

This appeal is from an order granting an injunction to restrain execution of a judgment, upon a bill filed on the 19th of February 1859, by the appellee, against the appellant.

The bill alleges, that the defendant, Gardner, claiming a certain amount of money to be due him from the complainant, brought suit on his supposed claim, in the Superior Court of Baltimore city, and that the writ in the case was directed, as usual, to the sheriff of the city, and placed in the hands of a deputy, who proceeded outside of his bailiwick and went into Baltimore county and there attempted to serve it; that the deputy there saw the complainant and told him he had such a writ, and notified him to attend the Superior Court, and that complainant at once informed the deputy, that he was a resident of the county, and that he was then in the county, and had no power to serve the process there, and that the proceeding was improper and illegal, to which the deputy replied, that he would so report, and that complainant need trouble himself no further on the subject; that relying upon these facts and statements, complainant did not trouble himself further [**2]  on the subject, but supposed the writ would be returned "non est" or "not found in the bailiwick," as it should have been, but he avers that instead of such return, the sheriff of the city, in fraud of complainant's rights, returned him "summoned."

The bill further charges, that the defendant, with whom the complainant has had dealings for several years, well knew that he resided in Baltimore county, and was not amenable to the process of the Superior Court; that on such false and fraudulent return a judgment by default was obtained against him (as appears by a short copy of the docket entries filed with the bill and made part thereof) on the 14th of December 1858, to complainant's surprise and in violation of his manifest rights; that by these proceedings he was prevented from making his defences to the claim of which he only owes a part, whilst the judgment is for the whole amount claimed; that he was subjected to a jurisdiction to which he was not amenable, and a judgment was obtained against him by surprise, and under Acts of Assembly not applicable to the county in which he resides; that on this judgment the defendant caused a fi. fa. to be issued, on the 28th of January [**3]  1859, to the sheriff of Baltimore city, which was returned nulla bona, and thereupon he caused a fi. fa. to be issued to Baltimore county, which has been levied on complainant's stock of goods in his store in said county, and the sheriff of the county is about to remove and sell the same, and thereby destroy his business and cause the complainant irreparable injury.

The bill then prays for an injunction to restrain further proceedings upon this execution, and that this judgment may be set aside, and perpetually enjoined, and for general relief.

The docket entries of the judgment filed with the bill show, among other things, that judgment was rendered "by default for want of appearance, for $ 706.59 damages assessed by the court," and that after it was entered a motion was made to strike out the judgment and enter a non pros. and an affidavit in support thereof filed, which motion was overruled by the court.

On this bill the court (KREBS, J.) ordered the injunction to issue as prayed, and from this order the defendant, having first filed his answer, appealed.  

DISPOSITION:
Order reversed with costs.  

HEADNOTES:

A bill for an injunction to restrain execution of a judgment did not allege fraud on the part of the plaintiff in the judgment, but merely that the deputy sheriff served the summons on the defendant out of his bailiwick, and, being informed of defendant's residence out of his bailiwick, failed to make the return of non est as he had promised to do. The bill also admits the defendant's indebtedness for a part of the amount for which the judgment was recovered, but does not state how much, nor offer to pay it. HELD:

That these allegations are not sufficient to authorise the granting of an injunction. 

COUNSEL:
B. V. Danels for the appellant.

It was the duty of the appellee, at the [**4]  return of the writ, to avail himself of any defence he had, and having failed to do so, it is now too late. The Acts of 1796, ch. 43, secs. 14, 15, and 1801, ch. 74, secs. 11, 12, declare, that no defendant shall be arrested out of the county in which he is an inhabitant, and if he be, the plaintiff shall suffer a non-suit, but he must avail himself of his non-residence at the proper time, which is the return of the writ. A plea of non-residence is a plea in abatement, and if not availed of at the proper time, the defendant submits to the jurisdiction of the court. This is the case with this appellee. He was too late after the final judgment had been rendered and entered, to object to the court to whose jurisdiction he had, by his own act, submitted himself. In the case of Hoffman, et al., vs. Prout, 4 H. & McH., 165, the plaintiffs were non-suited because the defendant, on the return day of the writ, produced an affidavit of his non-residence. The Superior Court was therefore right in rendering the judgment in conformity with the provisions of the Act of 1858, ch. 323, because Jenkins, having been duly summoned, failed to produce any evidence of his non-residence.

But again,  [**5]  it is a settled principle of equity, that he who seeks equity must do equity. Now, in the bill the appellee admits, that he does owe the appellant a part of the money for which the judgment was recovered, but does not say how much, nor does he tender or offer to tender the amount which he admits. He had, therefore, no right to ask for this injunction, and has now no right to have it continued. For these reasons it is submitted, the order granting the injunction should be reversed.

Orville Horwitz for the appellee.

The question in the case is, whether, upon the allegations of the bill, the court below was warranted in issuing the injunction? And for the appellee it is insisted:

1st. That the service of the writ by the sheriff or his deputy, outside of his bailiwick, is void, and the sheriff a trespasser, and that the judgment obtained on such service is equally void. Watson on Sheriff, 60, 89, in 7 Law Lib., 44, 64. 3 Barn. & Ald., 408, Hammond vs. Taylor. 3 Barn. & Cress., 158, Storer vs. Rayson.

2nd. That the promise of the sheriff's deputy to return the writ "non est," and the subsequent return, "summoned," was a surprise and a fraud in fact on the appellee, against [**6]  which a court of equity will relieve.

3rd. That the knowledge of the residence of the appellee by the appellant, the issue of process out of a court to whose jurisdiction he was not subject, and governed by special Acts of Assembly providing more summary remedies, and the subsequent conduct of the sheriff's officer in going out of the limits of the city to serve the writ, and of the appellee in obtaining thereupon by default a judgment for a larger amount than the appellee swears was owing, present a case amounting to a combination to defraud the appellee of his just rights, and full of such equities in his favor as a court of chancery will protect.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*61]  LE GRAND, C. J., delivered the opinion of this court.
We think the injunction improperly issued in this case, and that the order should be reversed. The bill does not allege any fraud on the part of the appellant, but merely against the deputy of the sheriff of Baltimore city, and this fraud is averred to consist in the fact, that the summons was served on the appellee without the limits of the city and within those of the  [**7]  county of Baltimore, and in the failure of the officer to report the appellee as "non est," he being informed of the residence of the appellee in the county, and promising so to report the fact.
The bill admits that the complainant is indebted to the defendant, but it does not state the amount, nor offer to pay it. The case of Fowler vs. Lee, 10 Gill & Johnson 358, shows, to use its language, that "Courts of Chancery do not lightly interfere with judgments at law. It is only for the prevention of fraud, or to relieve from substantial injury or gross injustice, that its high and extraordinary power of interference by injunction is ever resorted to. It is never merely for the correction 

 [*62]  of informalities or irregularities in legal or judicial proceedings. He who seeks to avail himself of such defects, must prosecute his remedies at law; from a court of equity he can receive no countenance." It may be said of the present complainant as was said of the one in the case referred; "to obtain relief by injunction against this judgment he should, by his bill, have offered to do equity, by paying into court the debt which, by his own statement, he had [**8]  shown himself in honor and in conscience under an obligation to pay." Besides these objections, the party had the right to proceed under the Act of 1787, chapter 9, and he availed himself of it. The judgment of the court being against him he is concluded thereby.
Order reversed with costs. 

165 of 196 DOCUMENTS 

BENJAMIN R. GAYLE and CHARLOTTE GAYLE, his Wife, vs. JOHN FATTLE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 69; 1859 Md. LEXIS 55 

July 1, 1859, Decided 

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

This appeal is from an order granting an injunction, upon a bill filed by the appellee against the appellants, on the 16th of June 1857. The case made by the bill and exhibits is this:

On the 21st of February 1853, the complainant purchased from the defendant Charlotte Gayle, (then Charlotte Tipton,) a farm in Baltimore county, containing eighty-eight acres, for $ 5544, payable one-third in cash, one-third in four years, and the balance at the death of Mrs. Ann Hill. This sale was evidenced by a written receipt of the said Charlotte, which, after acknowledging the receipt through Geo. W. Davis, agent for Fattle, of $ 20, as part payment on the farm, specifies the terms of sale, and says, "the credit payments to bear interest from the day of the date of the title of said farm to the said Fattle, and said farm, or title of said farm, to be clear of all encumbrances of every nature and kind whatsoever." Relying upon this agreement the complainant made the cash payment agreed upon, and in April following the said Charlotte delivered possession of the land to him. At the time of this contract the said Charlotte was a widow, and entitled [**2]  to the land, as cestui que trust, under a deed of trust from S. W. Hill, her father, she having by the deed power to sell and dispose of the same as she thought proper, subject, however, to the dower of Ann Hill, the widow of S. W. Hill. On the 5th of April 1853, the said Charlotte, by deed of that date, in which the trustee and Ann Hill united, conveyed the land to the complainant, in which deed, the bill alleges, from inadvertence and ignorance on the part of the complainant, he being wholly unacquainted with legal documents, and being a German, not readily understanding the English tongue, there was no covenant or stipulation inserted for assuring to the complainant a good title as had been stipulated in the written agreement made with the said Charlotte, but simply a covenant of warranty against all persons claiming under the said Charlotte, or her father, the said S. W. Hill, but the complainant avers that he did not, by reason of that omission and inadvertence, lose the benefit of the said agreement but, that the same is still in force, and he is entitled to the benefit thereof. On the same day the complainant executed a mortgage of the land to the said Charlotte and Ann Hill,  [**3]  to secure the payment of one-third of the purchase money to said Charlotte at the end of four years, the interest on the remaining third to be paid quarterly to Ann Hill during her life, in lieu of dower, and the said remaining third to be paid to said Charlotte in six months after the death of Ann Hill. This mortgage contains an agreement that, if default is made by the mortgagor in payment of the mortgage debt or any part thereof, or the interest thereon or any part of such interest, the whole mortgage debt, principal and interest, remaining unpaid, shall immediately thereafter become due and payable, and it shall and may be lawful to and for the said Charlotte Tipton, her heirs, executors, administrators or assigns, and she or they are hereby fully authorised to foreclose this mortgage and sell all the said mortgaged property in the same manner as if the whole mortgage debt had become due and remained unpaid, and to appropriate and apply the proceeds to the payment thereof, or of so much as may be then unpaid; and as between the said Charlotte and Ann, it was agreed that in case default shall be made in payment as aforesaid, the party towards whom default is made shall be at liberty,  [**4]  and is hereby authorised to use the name of the other jointly with that of herself to foreclose this mortgage. The bill charges that this mortgage does not contain any power to the mortgagee to sell the mortgaged property, nor any assent to the provisions of the Act of 1826, ch. 192; that the complainant has duly and regularly paid the several instalments of interest as they became due, and is willing to continue to pay the same; that in 1854, the said Charlotte intermarried with Benjaman R. Gayle, and that in that year an action of ejectment was instituted in the Circuit Court for Baltimore county, by one Chamberlain against the complainant and another to recover, among other things, the land so purchased by the complainant, the said Chamberlain claiming title thereto or to some portion thereof, and that this action is still pending; that complainant gave written notice of this action to Gayle and wife, and warned them to come forward and defend the title to the property, but they have hitherto neglected to take any step in that behalf; that, by reason of this action, complainant's title to the land has become clouded, and he is in danger of losing the same or some part thereof; that [**5]  Gayle and wife have attempted to force a sale of the land, notwithstanding the pendency of this ejectment and the doubt by reason thereof cast upon the title; that complainant has earnestly entreated them to postpone any attempt to sell until this action is decided, when he will be ready and willing, if he is successful therein, to pay the balance of the purchase money, and all interest thereon; but they have refused to grant this request, and persist in attempting to force a sale, which, if carried into effect, will cause a ruinous sacrifice to him; that though the mortgage contains no power to the mortgagee to sell the mortgaged property, yet Gayle and wife have executed a paper purporting to be a power of attorney, in which they profess to authorise their attorney to sell under the provisions of the Act of 1826, ch. 192, eighty acres part of said land, but not the remaining eight acres, and notwithstanding the pendency of the ejectment said attorney has advertised, not only that part of the land mentioned in the power of attorney, but also the eight acres not mentioned therein, for sale at public auction, at the Exchange in Baltimore city, on the 17th of June 1857; that said attorney [**6]  has failed to give, at least twenty days' notice of the time, place and manner of sale in a newspaper published in Baltimore county out of the limits of Baltimore city, as required by the Act of Assembly in such case made and provided, although there is one or more newspapers now, and have been for more than twenty days past, published in Baltimore county, out of the limits of said city, and that he is about to make a forced sale of the land, at the Exchange in the city of Baltimore, out of the limits of the county where the lands lie, though all mortgage sales, as complainant is advised and charges, are required, by the Acts of Assembly, to be made in the county where the mortgaged premises are situated; that it is doubtful whether Gayle and wife could execute such power of attorney so as to give any power to sell thereunder, and even if they can confer on their attorney power to sell the mortgaged property, yet this paper is defective, because only a portion of the property is authorized by it to be sold; that a sale of the property, under the circumstances above set forth, is contrary to the Acts of Assembly, and that any attempt to proceed with such sale, while the aforesaid action [**7]  of ejectment is pending, will involve the complainant in expensive and disastrous litigation, and may cause a ruinous sacrifice of his property, and that, too, without any corresponding advantage to the said Charlotte, inasmuch as she and her husband will be liable to complainant in case of ultimate loss to him, in pursuance of her above mentioned agreement to give him a good and sufficient title to the land. The prayer of the bill is for an injunction restraining the sale of the property, and for general relief.

The court (KREBS J.) ordered the injunction to issue as prayed, and from this order the defendants, Gayle and wife, having first filed their answers, appealed.  

DISPOSITION:
Order reversed, with costs, and cause remanded for further proceedings under Act of 1832, ch. 302.  

HEADNOTES:

The mere claim by a third person of a paramount title, not alleged by the bill to be valid, and bringing suit upon that claim against the purchaser, are not sufficient to authorise a court of equity to stay, by injunction, the vendor who has warranted the title, from proceeding either at law or in equity to collect the unpaid purchase money.

No injunction to stay a sale under the Act of 1826, ch. 192, can be granted, unless the bill be filed by the party, and contain the allegations, required by the eighth section of that Act.

If a sale is made without a compliance with the requisitions of the Act of 1826, ch. 192, the proper time to take advantage thereof is when the sale is reported. 

COUNSEL:
C. L. L. Leary for the appellants.

1st. The equity of the bill is founded chiefly on the expression used in the preliminary agreement or memorandum of the 4th of February, that the title "is to be clear of all incumbrances of any nature or kind whatever." The bill avers there was no covenant or stipulation inserted in the deed for assuring the appellee a good title as had been stipulated in the written [**8]  agreement, but simply a covenant of warranty against all persons claiming under the said Charlotte or her father, S. W. Hill, and that the appellee assented thereto "through inadvertence and ignorance, he being a German and not readily understanding the English tongue." It assumes that the appellant, Charlotte, is liable under a covenant of general warranty, that being the effect of the original agreement; that a breach of the covenant has occurred by reason of the claim set up by Chamberlain, and that the restraining process of the court may be invoked to protect the appellee against the appellant's remedy for the collection of her mortgage claim. Now we deny that the facts developed by the bill are consistent with the hypothesis contended for. The fact that the appellee was a German and did not readily understand English, does not excuse his ignorance and inadvertence in this negotiation, and in the final execution of the contract, because it appears by the preliminary agreement that he was represented by an agent, under whose care the original agreement was signed, and who appears to have watched with equal fidelity his employer's interest and his own. Again, this agreement contains [**9]  no stipulation for a covenant of assurance of title; indeed there is no stipulation for covenants of any sort. The deed, however, does contain a covenant for further assurance besides that of special warranty, and thus provides a more ample security than was required by the terms of the original agreement. Although a court of equity will grant relief in cases of fraud, surprise or mistake, by amending deeds or contracts so as to make them conform to the intention of the parties, where such intention is clearly established, yet, it will be difficult to show, either on principle or by authority, that its jurisdiction, by way of injunction, can be exerted in cases where relief is solicited upon the ground of "inadvertence" or "ignorance" in the party claiming its interposition. Inadvertence is only another name for negligence, to which neither courts of law nor of equity will, for a moment, lend their sanction.

2nd. The rights and liabilities of the parties to this contract are to be ascertained and determined by the terms of the deed, and by the mortgage contemporaneously made. In the absence of fraud and mistake, (and neither is alleged in the bill,) no effect can be given to the [**10]  preliminary agreement; it is a contract resting in parol, and the deed and mortgage being of more recent date and of higher dignity in law, are to be regarded as the exclusive exponents of the intentions of the respective parties to the contract. Dorsey vs. Smith, 7 H. & J., 363. Worthington vs. Bullitt, 6 Md. Rep., 196. Chitty on Contracts, 7, (6th Am. Ed.) Hoare vs. Graham, 3 Camp., 57. Stubbs vs. King, 14 Sergt. & Rawle, 206. Drake vs. Mitchell, 3 East., 258. Braddick vs. Thompson, 8 East., 346. If then the agreement is to be excluded, and the rights and liabilities of the parties are to be determined by the provisions of the deed and mortgage, there has been no breach of warranty unless it appears from the bill that Chamberlain, the plaintiff in the ejectment suit, claims under the appellant, Charlotte, or under her father, S. W. Hill, and this is neither alleged nor pretended.

3rd. But let it be admitted, for the sake of the argument, that effect is to be given to the preliminary agreement, and that the appellants are liable, as under a covenant of general warranty, does the complainant, by the averments of his bill, show such a breach as would justify him in withholding [**11]  payment of the purchase money due under the mortgage, and warrant the interposition of this court in restraining the mortgagee from enforcing payment? Is it sufficient to allege, that a claim has been made to the property, or to a part thereof, by a stranger, and that a suit is still pending, and that by reason of such suit the title of complainant is "clouded?" We hesitate not to affirm, that the establishment of such a doctrine would work a total overthrow of all confidence in mortgages of real estate as a security for the payment of money. We think the law is otherwise. The averments of the bill are utterly insufficient to justify the court below in its action; the complainant, to entitle himself to relief on this ground, must have alleged or shown an eviction or lawful ouster; to prove an eviction a judgment of a court of law is necessary. If the tenant in possession consents to an ouster, it must be a lawful ouster, otherwise he consents at his peril. If the title to which he has yielded be not good, he must abide the loss. Hamilton vs. Cutts, 4 Mass., 352. Karthaus vs. Owings, 2 G. & J., 441. The nature of the adverse claim or encumbrance must be alleged, and it must be a valid [**12]  and subsisting encumbrance; the allegation of the bill is, that complainant's title is "clouded" by the claim set up by Chamberlain. Averments so vague and unsatisfactory cannot be permitted to justify the interposition of this court by injunction. The true principle governing cases like the present is asserted by Chancellor Kent, 2 Kent's Com., 472: "If there be no ingredient of fraud and the purchaser is not evicted, the insufficiency of the title is no ground for relief against a security given for the purchase money. The party is remitted to his remedies at law on his covenants to insure the title." Bumpus vs. Platner, 1 Johns. Ch. Rep., 218. Bates vs. Delavan, 5 Paige, 307. Abbott vs. Allen, 2 Johns. Ch. Rep., 521. The leading case, adverse to the principle settled by the authorities above recited, is, Johnson vs. Gere, 2 Johns. Ch. Rep., 546, determined by Chancellor Kent only a few days after the decision in Abbott vs. Allen, and somewhat similar in its circumstances to the present case. But the authority of that case has been utterly repudiated and denied by repeated decisions in the same State, and the principles of the cases of Abbott vs. Allen and Bumpus vs. Platner, applied [**13]  in all cases where it appeared that the complainant was in possession of the land and had an adequate remedy under the covenants of his deed, and where fraud was not alleged. See Bates vs. Delavan, 5 Paige, 307. Woodruff vs. Bunce, 9 Paige, 445, and Miller vs. Avery, 2 Barbour's Ch. Rep., 594. The opinion of the learned Chancellor in the case last cited is especially commended to the consideration of the court. The later New York decisions sustain this reasoning and adopt the principle established in Abbott vs. Allen, whilst Chancellor Kent himself, in his commentaries, although he speaks in approbation of the doctrine established in the latter case, makes no mention of his decision in Johnson vs. Gere. See also Banks vs. Walker, 2 Sandf. Ch. Rep., 344; Platt vs. Gilchrist, 3 Sandf. Rep., 118; Rawle on Covenants for Title, 638, 654, 674, (note 2,) and the remarks of the author on this point. If a contrary doctrine be recognized by the courts, it is easy to see that the payment of purchase money by the vendee, and the vendor's remedy therefor, may be indefinitely postponed, and in fact defeated by collusion between the vendee and strangers successively claiming title to the mortgaged [**14]  property, while all securities, by way of mortgage of lands, created under the circumstances of this case, must be regarded as utterly valueless. The foregoing remarks are submitted under the supposition that the preliminary agreement is to have effect as developing the intention of the parties, and as subjecting the appellant to liability under a general warranty. This, however, we deny, and insist, that the rights and liabilities of the parties to this contract must be determined by the deed and the mortgage of the same date, without any reference whatever to the terms of the preliminary agreement; that the deed and mortgage are the only safe exponents of the intentions and motives of the parties thereto, and that if any incongruity exists between the terms of the written agreement and the deed and mortgage subsequently executed, it is but fair and reasonable to infer, that in the six weeks which intervened between the signing of the agreement and the execution of the deed the parties had changed their minds in regard to the terms of the contract, and that the deed and mortgage were prepared and executed with reference to such altered intentions. There are other points of difference [**15]  between the terms of the preliminary agreement and the mortgage, as for instance, the period fixed for payment of the last instalment of the purchase money; the agreement stipulating that it should be paid "at the death of Mrs. Ann Hill," and the mortgage providing for its payment "in six months after the decease of Ann Hill," and yet it surely will not be contended, that the terms prescribed by the mortgage must be disregarded and full effect given to the original agreement. The liability, then, of the appellant, Charlotte, is to be determined by the covenants in her deed; it is a covenant of special not of general warranty, and the language used is such as to justify a violent presumption that special care and deliberation were employed in framing it. The warranty is "from and against herself and her heirs, and all and every person and persons legally or equitably having, claiming, or to claim, any estate or interest therein, or right or title thereto, through, by, or under her father, Samuel Waddoms Hill." There is no breach of this covenant shown by the averments of the bill. The plaintiff in the ejectment suit, Chamberlain, claims the land under a title paramount; it is not alleged [**16]  or pretended that he claims through, by, or under the appellant, Charlotte, or her father, Samuel W. Hill; no liability, therefore, can attach, or has attached, to her, under the covenants of her deed: "A vendor selling in good faith is not responsible for the goodness of his title beyond the extent of the covenants in the deed." Falconer vs. Griffith, 3 Md. Ch. Dec., 157, affirmed in Falconer vs. Clark, 7 Md. Rep., 177; Morris vs. Harris, 9 Gill 27; Middlekauff vs. Barrick, 4 Gill 300. We contend, therefore, that not only on principle, but in accordance with the weight of authority, the appellee is not entitled to withhold the unpaid purchase money due the appellant on the ground of failure of consideration, nor under the circumstances of this case, and while there is an adequate and appropriate remedy at law, can the restraining process of this court be properly invoked. The appellant has thus far fulfilled all her obligations under the contract as it is disclosed by the complainant's bill; she is willing and ready to discharge any further liability imposed on her by her contract; but she does protest against the court making a new contract where one already exists, the terms and [**17]  stipulations of which cannot admit of a reasonable doubt. "It would indeed lead to infinite mischief if writings, which show clearly the agreement of parties, were permitted to be contradicted and new stipulations interpolated; there would be no security in property, and no faith reposed in the most solemn conventions." Watkins vs. Stockett, 6 H. & J., 444.

4th. The objections urged by the bill against the power of attorney, and to the other proceedings authorised by the Act of 1826, ch. 192, are without foundation; and if these objections were valid, they should have been taken under exceptions to the sale when made and reported. They cannot justify the exercise of the extraordinary power of this court by way of injunction. If, as is alleged, it be questionable whether the appellants were authorised or competent to execute the letter of attorney under which the lands were advertised, the objection would go to the validity of the title acquired by the purchaser, and if the attorney acted without authority, most assuredly no title would pass; so, also, if, as the bill avers, the power of attorney "professes to authorise" the sale of a tract of land containing eighty acres, and [**18]  the attorney without authority assumes to sell two tracts comprising eighty-eight acres, the party injured would be the purchaser of a worthless title, and not the complainant, who sustains no damage. We contend, therefore, that, applying to this case the ordinary principles governing the exercise of the restraining jurisdiction of courts of equity, the action of the court was erroneous; the complainant by his bill presents no valid claim for relief, and the injunction ought to be dissolved.

5th. But the Act of 1826, chap. 192, sec. 8, expressly prohibits the granting of injunctions to stay proceedings under this Act, unless the mortgage debt or a part thereof has been paid and credit is refused to be given, or unless some fraud, which shall be particularly stated in the bill, was used by the mortgagee in obtaining the mortgage. No fraud is alleged or pretended in this case; it is clearly within the prohibition provided by this clause of the Act of 1826, and when the harrassing and ruinous delay, to which the appellants have been subjected by this proceeding, is duly considered, the wisdom and necessity of such a prohibition are clearly displayed.

Chas. W. Ridgely and Levin [**19]  Gale for the appellees.

The primary object of this bill is an injunction to stay the sale, and its secondary object to reform the contract. The greater portion of the appellants argument is devoted to establishing two propositions.

1st. That the execution of the deed conveying the land without inserting in it a covenant of general warranty, did away with the original contract, and made the vendor's liability to be determined entirely by the covenants in the deed.

2nd. That the existence of a covenant of general warranty is no defence to a proceeding to foreclose a mortgage for the purchase money, until an actual eviction has taken place.

These positions, as general propositions of law, are not denied, but the first is liable to the qualification, that the contract as perfected, may be reformed in case of mistake; and such is substantially the charge made in this case. And if this be established the second objection has no force; since the complainant is not in the position of one having a covenant upon which he can sue at law, but is obliged to come in to a court of equity for redress. And equity once having obtained possession of the matter will proceed to give [**20]  full and adequate relief. But the question raised by this appeal relates solely to the propriety of the injunction restraining the sale, which was about to be made. And on this question, besides the points growing out of the contract, there are several other reasons we think sufficient to sustain the injunction.

1st. The only authority for making the sale was the power of attorney. Now, we say a married woman cannot constitute or appoint an attorney, and that this paper purporting to be a power of attorney was therefore a mere nullity. All the powers which a married woman can exercise, are either conferred by express grant or by Act of Assembly. We know of no Act of Assembly, authorising the execution of such a power of attorney as this. Nor does it appear that any special power has been conferred upon this lady.

2nd. But the power only authorized the attorney to sell a portion of the mortgaged premises, viz., the eighty acres, and omitted entirely the eight acres, which formed a part of the whole eighty-eight acres mortgaged. The Act of 1826, ch. 192, under which they professed to act, does not authorize the appointment of an attorney to sell a part of the mortgaged premises,  [**21]  especially in such a case as this, where it was "a part of the whole tract occupied by complainant," and sold and mortgaged as one farm. The power of attorney must authorize a sale of the whole, otherwise, instead of one sale, there may be fifty different sales, under as many different powers and attorneys. It is we think doubtful, whether, under this act, the attorney could sell less than the whole, since the only authority given by the act is to sell "the mortgaged premises," but certainly the attorney ought to be invested with power to sell the whole in case he should think proper. But, by the power of attorney executed in this case, authority was conferred upon the attorney only to sell a part, and no matter how disastrous the sale might be to the parties, he could go no further without exceeding his authority. Such a power of attorney we do not think was within the contemplation of the Act.

3rd. Suppose, however, the first and second objections to be obviated, yet, under a power to sell a portion, the attorney undertakes, and was about to sell the whole. In this he certainly exceeded his authority.

4th. This property is situate in Baltimore county: and by the act of [**22]  1825, ch. 203, sec. 10, all sales of mortgaged property must be made in the county where the lands lie. By the 4th section, they are also required to be advertised in the county. In this case the sale was about to be made at the Exchange, in the city of Baltimore, and was not advertised in the county. Either of these objections, we think, was fatal to the validity of the proposed sale. It may be said, that the Act of 1826, ch. 192, was passed after that of 1825, ch. 203, and that the latter Act is silent on the subject of the place where the sale is to be made, and directs the advertisement to be made in the city. When the Act of 1826 was passed, Baltimore city and Baltimore county formed together one county, of which the city was the county town or capital, and it was unnecessary, therefore, to repeat the provisions of the 10th section of the act of 1825, which is a general law, and by its terms applies to "all mortgage sales." Since the division between the city and county of Baltimore, by which each has become a separate county, the Act of 1825 comes in and applies certainly, we think, as to the place of sale, for there is nothing in the Act of 1826, inconsistent with that part [**23]  of the Act; and the settled rule is, that a new Act does not repeal a former one, unless inconsistent. As to the advertisement, since the Act of 1826 makes its own provisions, that point may be doubtful, but we think a true construction will lead to the conclusion, that it must be advertised within the county, since the separation has taken place.

But, say the appellants, you should have allowed the sale to go on, and excepted to its ratification. A sale, without authority under an improper power of attorney, and of more land that it entitled the attorney to sell, would not have injured the owner, it would only have affected the purchaser. We think, however, that the owner of property is not bound to stand quietly by and see his property offered for sale, without proper authority. Unsuccessful efforts to sell property invariably have an injurious effect upon its market value. If a sale is once set aside, and the property is again offered for sale, the fact of the first sale being vacated is noised abroad, whilst the reasons which induced it are frequently misrepresented, distorted or loss sight of. The owner, if compelled to let the sale go on, and seek his redress upon exceptions [**24]  to the ratification, would be put to the dilemma of indirectly countenancing an irregular and improper sale, or by coming forward and announcing his objections depreciate the value of his property, and lessen his means to pay his debts. We do not think he should be put to this election. The irregular proceedings in this case had an obvious tendency to depreciate and lessen the value of the property, to cloud the complainant's title, and to hamper and annoy him in the exercise of his rights. An injunction to stay the sale was the only remedy adequate to relieve him from the embarrassments produced by the illegal and irregular acts of the defendants, and we think he was clearly entitled to it under the circumstances. See McCann vs. Taylor, 10 Md. Rep., 418.

But it is contended, that the 8th section of the Act of 1826 prohibits an injunction from issuing in this case. A proceeding, to be within the prohibition, must be "a sale authorised by this Act." It is not sufficient that a person should say he is proceeding under the Act: he must bring himself within its provisions. Now if there is that force in the various objections above enumerated, to the acts, doings and authority of this [**25]  attorney, that we think there is, then he was not proceeding under the provisions of the law in question, and the sale he was about to make was not "authorized by the Act." The complainant was not, therefore, forbidden to enjoin the sale. The section requires that the proceedings necessary to bring the sale within the Act should be first complied with, and then provides against injunctions founded on vague and general objections to the mortgage claim. These, it says, shall not be sufficient. The objections must be specific, and under oath, showing how much has been paid, and how much is due, or showing the particular fraud charged in reference to the mortgage. The section cannot be so twisted as to prohibit injunctions in cases where every provision of the law has been disregarded, or where no right to sell existed at all. Suppose, for instance, that the attorney had, without any authority from the mortgagees, and of his own motion, undertaken to sell this property, and that complainant, upon enquiring of Gayle and wife, had been informed by them, that they had not authorized him to sell, and did not desire a sale, can it be pretended that Fattle would have been compelled to wait until [**26]  the sale had been made, and then only be entitled to relief? Now our objections go fully to the point, that the attorney was not proceeding according to the provisions of the Act. For if the first objection we make is valid, he was proceeding without any authority at all. If the second, he was proceeding against the provisions of this Act. And the third objection shows, we think clearly, that as to the eight acres, he was proceeding without authority. The fourth objection shows, that his proceedings were in violation of the Act of 1825, which, we think, has since, by the separation of the city and county, become a necessary part of any proceeding under the Act of 1826. Upon each of these points we think the case does not come within the prohibition.

The appellant's counsel, in his argument, says, that we do not allege or pretend to charge fraud in this case. It is true we do not charge an intentional, moral fraud, but we do insist, that the facts set forth in the bill do amount to a legal fraud, and upon that ground, if no other, we were entitled to stay an illegal and unwarrantable sale.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [**27]  
 [*83]  LE GRAND, C. J., delivered the opinion of this court.
This is an appeal from an order granting an injunction. Under the decisions of this court we are confined to the case made by the bill, which may be thus stated: On the 21st day of February 1853, the appellee purchased from the appellant, Charlotte Gayle, (then Tipton,) the land mentioned in the proceedings, and paid a part of the purchase money, taking from the vendor a receipt for the same, which, after acknowledging the payment made, proceeds to declare, that the title to the farm shall "be clear of all incumbrance of every nature and kind whatsoever."

 [*84]  Subsequently a deed was made to the appellee for the land, and a mortgage executed by him under the Act of 1826, ch. 192, to secure the amount of the remainder of the purchase money when it should become due and payable. The deed did not contain a covenant of general warranty of title against all the world. The mortgage being due, the sale authorized by it, in that event, being about to be proceeded in, the bill in this case was filed to enjoin such sale until such time as an ejectment suit, instituted by one Chamberlain, for the land, should [**28]  be determined, and for reformation of the deed so as to make it conform to the terms of the receipt given by the appellant, Charlotte, at the time of the sale.
There is no allegation of fraud against the appellants, the assent of the appellee to the deed, as it was executed, being, as is averred, "through inadvertence and ignorance, he being a German and not readily understanding the English tongue." Nor is there any averment that the claim set up by Chamberlain, in the action of ejectment, is valid and subsisting, the charge being, that by the action of ejectment the title of the appellee is "clouded."
It must be recollected, that the sale sought to be enjoined is under the Act of 1826, ch. 192, the eighth section of which provides, that no injunction shall be granted to stay any sale, or any proceedings after any sale authorized by the Act, unless under peculiar circumstances, none of which are specified in the bill of complaint. The part of the section bearing on this subject is in these words: "No injunction shall be granted to stay any sale, or any proceedings after sale, authorized by this Act, unless the party praying such injunction shall be also a party to [**29]  the deed of mortgage, in virtue or pursuance of which the property, interest or estate, sold, or offered for sale, shall have been mortgaged, or shall claim under such party a right, title or interest, in or to such mortgaged premises, derived and accruing after the time of recording such mortgaged deed; nor unless such party shall, on oath or affirmation, allege, that the mortgage debt, and all interest due thereon, has been fully paid, or that some part of such debt or interest, the amount of which he shall state, has been paid, and that the 

 [*85]  mortgagee, or person acting under him or her, refuses to give or allow credit for such amount, or that some fraud, which shall be particularly stated in the bill or petition for injunction, was used by such mortgagee, or with his knowledge, in obtaining the deed of mortgage."
This quotation from the Act would seem to be conclusive of this case. But, if it were not, it is clear to us, that, on other grounds, the averments of the bill are insufficient to justify the injunction. We waive all inquiry in regard to some of the questions discussed by the respective counsel, particularly those which relate to the alleged merger of the [**30]  words in the receipt by those contained in the deed, and the right, if any, of the appellee, to have the deed so reformed as to make it conform to the title stipulated for by the receipt of the 21st of February 1853. It will be time enough hereafter to consider them. Admitting, ex argumenti, the efficacy of the pretensions of the appellee in these particulars, the question arises, ought an injunction to issue simply because a stranger has thought proper to institute an action of ejectment, there being no allegation that his claim has any validity whatever? We think clearly not. It is useless to go over in detail the many cases on this subject. We content ourselves with a reference to Miller vs. Avery, 2 Barbour's Ch. Rep., 594, a case conclusive of this, and now everywhere in this country acquiesced in. There, Chancellor Walworth, in alluding to the decision in Johnson vs. Gere, 2 Johns. Ch. Rep. 546, says: "I think it evident that the reporter was under a mistake in the statement of the case, for it cannot be possible that he intended to decide that a mere claim of a paramount title, by a third person, and the bringing of a suit upon that claim [**31]  against the purchaser was sufficient to authorize the court to stay the vendor, who had warranted the title, from proceeding at law or in equity to collect the unpaid purchase money. If the law was so, any vendee, who was not ready to pay his purchase money when it became due, might make a secret arrangement with some third person to claim the premises and bring an ejectment suit therefor, and thus tie up the vendor from collecting indefinitely." The good sense expressed 

 [*86]  in this language is too obvious to need enforcement; it is commended by Chancellor Kent in his Commentaries, although he delivered the opinion in Johnson vs. Gere, and has been recognized and adhered to in a great number of subsequent decisions.
If the sale be made without a compliance with the requisitions of the Act of 1826, ch. 192, when it shall have been reported, the appellee will then have an opportunity to point out the departure and to claim whatever advantage it will give him.
Order reversed, with costs, and cause remanded for further proceedings under Act of 1832, ch. 302.  

166 of 196 DOCUMENTS 

MARGARET LEVERING AND OTHERS vs. MARY ANN LEVERING ADMX. d. b. n., c. t. a., of SARAH BROWN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 30; 1859 Md. LEXIS 50 

June 24, 1859, Decided 

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

The appeal in this case was taken from an order of the court below, dismissing the petition of the appellants. The only question in the case, arises upon the construction of the will of Sarah Brown, which, with the facts of the case, is fully stated in the opinion of this court.  

DISPOSITION:
Decree reversed and cause remanded.  

HEADNOTES:

A testatrix by the residuary clause of her will, devised and bequeathed to her two daughters Hannah and Sarah, during their natural lives, "all the rents, issues and profits, from all the rest and residue of" her estate, "and in the case of the death of either of them, the rents, issues and profits of the one so dying shall be equally divided between the heirs of the said deceased," and after the death of both, she directs her executor to sell at public sale "said property so devised to the said Hannah and Sarah, in fee-simple, upon a credit, and the nett proceeds of said sale after deducting his reasonable expenses, unto and amongst the heirs and representatives of the said Hannah and Sarah, their heirs and assigns forever." HELD.

That upon the death of both the daughters, the children of each are entitled to one-half the estate disposed of by this clause of the will; the distribution is not to be made per capita amongst the children of both.  

COUNSEL:
Geo. W. Dobbin and Wm. A. Talbott, for the appellants.

The question presented by this record, arises upon the residuary clause of the will of Sarah Brown. In relation to the first clause of this bequest there can be no doubt. It was obviously the intention of the testatrix to give to her two daughters, then living, an equal participation in her estate, and she accordingly declares, that each shall have one-half of the rents, issues and profits during her life, the interest of the one first dying, to descend to the children of such deceased. But, on the death of both of her daughters, she clearly contemplates a new state of things, and a new disposition. This was natural and equitable, since all the new objects of her bounty stood in equal degree of relationship to her, all being her grand-children though descended [**2]  in unequal numbers from her daughters. It is not the law of nature that grandchildren divide among themselves only the share of affection due from their grand-parent to their immediate parent; nor is it the law of property that an estate shall be divided, by the mere operation of law, in the same way. The substitution of children in the place of parents, per stirpes, is effected by the law only, in case of clearly expressed intention that such substitution shall take place; and no case can be found in which the clear grammatical construction of a bequest admits of distribution per capita, that the courts have decreed a distribution per stirpes, because of any supposed principle of legal or equitable construction, demanding such a distribution. Thus it has been held, that where a devise or bequest is made to the children of several persons, whether it be to the children of A and B, or to children of A and the children of B, they take per capita, and not per stirpes, 2 Vern., 705, Weld vs. Bradbury; 1 Cox, 250, Lugar vs. Harmon; 10 Ves. 166, Lincoln vs. Pelham; 8 Ves. 604, Barnes vs. Patch; and when a gift is made to A and B's children, or "to my brother's and sister's children," it [**3]  will be construed as a gift to A and the children, and B, in the first case, or in the second case, to the brother's and sister's children, as it strictly and properly imports, and not to the children, and both, as the expression is sometimes inaccurately used, to signify. 3 East, 172, Doe vs. Joinville. This state of the law is recognised, and the authorities first cited in 2 Powell on Devises, 330, 331. The case at bar falls precisely within the principle of these authorities, and there is nothing in any part of the will to indicate a different intention.

The error in the argument for the appellees consists in the assumption, that the two clauses which constitute the residuary bequest are necessarily neglected, and that because the testratrix gave the profits of the residue in question to her two daughters, share and share alike, during their joint lives, with a remainder during the life of the survivor to the children of the one first dying, she therefore meant, that the same division of interest into two parts should continue after the death of both. This is obviously a non sequitur. The testatrix contemplates two distinct periods of time, during which her estate should be [**4]  enjoyed according to the peculiar circumstances of her family. During the life-time of her daughters she disposed of the rents and profits only in the proportion of one half to each; and to the heirs of the one first dying till the other should die. Upon the death of both, as from a new starting point, she orders the division of the whole corpus among the heirs of her daughters, who are the testatrix's grand-children, all standing in equal degree of consanguinity to her. There is no interest vesting in the heirs of the one first dying, which continues after the death of the surviving sister; on the contrary, all the interest given by the first clause of the devise ceases, and the devisees of the corpus of the estate, though described as heirs, take as purchasers under a new and distinct devise. The question then is, how are they to take? per stirpes or per capita? There is no expressed intention that they are to take per stirpes; the grammatical construction of the words implied a taking per capita. Is there any rule of construction applicable to wills which prefers a distribution per stirpes to one per capita? The authorities give no such rule. The statutes of distribution adopt the [**5]  principle of representation as a wholesome, general rule, where a decedent has omitted to make a will, and prescribe the mode in which his property shall be distributed. But where a decedent makes a will he must provide for representation by express provision, or clearly indicated intention. Else the courts will not arbitrarily ingraft the doctrine upon his will. The cases cited by the appellants, firmly establish this, and are conclusive upon the case at bar; nor do those cited by the appellees militate against it. On the contrary, upon examination, they will be found to recognise the doctrine fully, and to rely upon the appellants' authorities with approval. If, under a devise to the children of A and B, they take per capita, then this devise, "unto and amongst the heirs and representatives of the said Hannah Levering and Sarah Levering, their heirs and assigns forever," is a devise per capita among the persons answering to that description.

Hugh L. Bond for the appellees.

There would seem to be no doubt as to the meaning of the will during the life of either of the legatees for life. The will, though inartificially drawn, is, to that extent, beyond the reach of doubt.  [**6]  The bequest is to Hannah and Sarah, during their lives, of the profits of the residue. This of course, alone, would have given a joint estate for life. The following words convert it into an estate in common, for it directs that the profits of the one dying first should go to her heirs. Heirs can then mean next of kin only, and the persons so described are to take, because of such relationship to the deceased, without any other description, and no matter who or what they may be holding that relation to the dying sister. They therefore, on the death of the sister, take her profits. This is clearly a gift to the whole stock of the dying sister's next of kin, and, of course, must go to them per stirpes, for the whole stirps, within the legal description, is to take, and what they take is the whole share of the dying sister. There is no attempt to reckon what share they are entitled to on the hypothesis of a per capita division between them and the next of kin of the surviving sister. The thing would be, in law, an impossibility, because, till the death of both, it cannot be known who will be the next of kin of both. The will therefore continues on the death of one, to the next of kin [**7]  of such decedent, the profits of the decedent. They might continue to hold them for half a century--so long as the other sister lives --and during that time the division is clearly to be per stirpes. If so, is there any thing which, in the event of the death of the surviving sister, alters, by increasing or diminishing, the interest of the next of kin of the first decedent sister?

Certainly there is nothing expressed on that subject. The will gives the profits of the stock during the life of the sisters and of the survivor; that is, the stock is to kept undivided; it is not to be sold; it is a mere life-estate, not to vest in any one in severalty till the death of both, and not to be divided till the death of both. But when both are dead the will then contemplates the vesting of an absolute right in severalty among the persons entitled. To accomplish this purpose it gives the executor power to sell the stock after the death of the survivor, but there is an omission of any word of gift or division--probably by accident--of the net proceeds. The words are, "and the net proceeds unto and amongst the heirs and representatives of the said Hannah and Sarah Levering." There is here no [**8]  new disposition of the property in the proportions in which it is to go to the two families--certainly none expressed. The implication is against it, because it would involve a different interest in the same set of persons, at different times, without any reason for a difference, and without any thing to indicate that the thought of such a difference was in the mind of the testatrix. Neither is there any rule of law which countenances such a change of intention. The interest which is expressed as to its quantity must stand, no matter how ambiguous following words may be, for the ambiguity cannot overcome an expressed intention, nor divest an actually vested interest. But there is no ambiguity even. The rule of law seems quite settled, that however it may be when children or issue are designated, neither children nor issue are terms of legal descent or devolution guiding the distribution of property after death, but are simply words of purchase, describing persons who are to take, yet when heirs or representatives are the persons to whom an interest is given in personalty, after a life-estate, they are words describing the persons who, in law, bear that relation to the decedent; and [**9]  that being so, the law gives the property to the persons who are heirs or representatives, in the same proportions the law would give it had the decedent died possessed of the property to be distributed according to law. It divides the property among the heirs of Hannah and Sarah, just as if Hannah had died holding her half, and Sarah had died holding her half. Such is the ruling in the case of Rowland vs. Gorsuch, 2 Cox, 187, and on the principle that representatives must take under a bequest in a will just as they would under a statute which defines what representatives are. The representatives of Hannah are one body known to the law, and the representatives of Sarah are another body of persons known to the law, and giving the property to and among the representatives of Hannah and Sarah does not make, of the two legal bodies of representatives, one body, nor make the representatives of each the representatives of both, but it is the representatives of Sarah and the representatives of Hannah to whom the law gives the property. It is quite irrelevant to cite the law of nature against the law of Maryland, and for us the law of Maryland embodies the law of nature, as we understand it.  [**10]  The cases cited seem quite as irrelevant as the law of nature. They are all cases of bequests to children, and not to a class of legal representatives; and that distinction disposes of all the cases cited.

The language of this will is precise on this point. There is no reason to suppose that children were exclusively in the testatrix's mind. Her words are much wider. They cover every contingency covered by the law of distribution. Any person who, by that law, might be the next of kin of either sister is within the words heirs and representatives. One sister might have been the only person representing her sister or remote cousins or uncles. It might have been that one sister might have died childless--her sister her only next of kin--and the disposition of the property, on the death of the survivor, would still equally follow the words of this will. So there is no reason to speak of the equal love of the testatrix for grand-children; for it might have equally been a case where persons in equal degrees, but in the ascending line, might have been persons who should be the representatives of the two sisters at the death of the survivor; nay, persons who bore no sort of relationship [**11]  to the testatrix, as for instance, uncles on the father's side of the said Hannah and Sarah. A rule of interpretation, therefore, which is drawn from the affection of the testatrix, is a rule too narrow for a guide in dividing property among the representatives of the legatees for life. 1 Hoff. Ch. Rep., 213, Wright vs. Trustees of the Methodist Episcopal Church. 2 Mylne & Keene, 82, Elmsley vs. Young. 2 Wms. Excrs., 815, 820. 1 Ball & Beatty, 466, Crone vs. Odell. 3 Brown's Ch. Cases, 69, Phillips vs. Garth 

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*36]  ECCLESTON, J., delivered the opinion of this court.
From this record it appears that, in the year 1830, Sarah Brown departed this life, leaving a will, and owning personal property consisting of stocks and leasehold estate, but having no realty.

 [*37]  Her will contains the following provisions:
"I give, devise and bequeath unto my son John Brown, the dividends and interest arising from six shares of Bank of Baltimore stock, as also the dividends and interest on sixty-three shares of Mechanics Bank stock, during his natural life.
"I give, devise and bequeath unto my [**12]  daughters, Hannah Levering and Sarah Levering, during their natural lives, the dividends and interest arising from the said stocks, after the death of my said son, John Brown.
"I give, devise and bequeath unto Hannah Levering and Sarah Levering, for and during their natural lives, all the rents, issues and profits from all the rest, residue and remainder of my estates, real, personal and mixed, to their own separate use and uses, and in the case of the death of either of them, then, and in that case, the rents, issues and profits of the one so dying shall be equally divided between the heirs of the said deceased; and I will and direct that my executor, hereinafter mentioned, after the death of the said Hannah and Sarah Levering, shall set up and expose to public sale, giving three weeks' notice in some of the newspapers of the said city, said property so devised to the said Hannah and Sarah, in fee-simple, upon a credit, and the nett proceeds of said sale, after deducting his reasonable expenses, unto and amongst the heirs and representatives of the said Hannah Levering and Sarah Levering, their heirs and assigns forever."
Letters testamentary were granted to Philip Moore, the executor [**13]  named in the will. He died and letters of administration de bonis non, with the will annexed, were duly granted to the present appellee, Mary Ann Levering.
John Brown survived his mother, and died many years since.
Sarah Levering departed this life leaving the petitioners, now appellants, with George W. Levering and Eliza B. Levering, her children and heirs at law; which said Eliza has since died, intestate and without issue, leaving the petitioners and the said George W. Levering, her brothers and sisters of the whole blood, and the said Mary Ann Levering, her sister of the half blood, surviving her.

 [*38]  Hannah Levering died leaving five children, who are all living.
It is admitted, "that the administratrix has distributed among the parties all the estate, except the sum actually in controversy."
The question we are asked to decide is, whether, under this will, upon the decease of the two daughters of the testatrix, the children of each were entitled to one-half of the estate intended to be disposed of by the last clause in the will; or whether the children of both were to take per capita?
The counsel for the appellants claim a distribution of the fund per capita.  [**14]   We think this is not consistent with the intention of the testatrix. Having given to the two daughters, for their separate use, for life, all the rents, issues and profits of all the residue of the estate, the will provides, that "in case of the death of either of them, then and in that case the rents, issues and profits of the one so dying shall be equally divided between the heirs of the said deceased." Whatever interpretation may be given to this word "heirs"--whether heirs-at-law, children, or next of kin--it clearly means, heirs-at-law, children, or next of kin, of the daughter first dying. And as the one who died first left children, they then became entitled to one-half of the rents, issues and profits; the surviving daughter still being entitled to the other half. This is admitted by the counsel for the appellants. In their printed argument they say: "In relation to the first clause of the bequest, there can be no doubt. It was, obviously, the intention of the testatrix to give to her two daughters, then living, an equal participation in her estate, and she accordingly declares, that each shall have one-half of the rents, issues and profits, during her life, the interest [**15]  of the one first dying to descend to the children of such deceased." They, however, then say: "But, upon the death of both of her daughters, she contemplates a new state of things and a new disposition." And they insist, that it is this new disposition which gives the appellants the right to claim a distribution per capita, and not per stirpes.
Should it be conceded that the interpretation insisted upon 

 [*39]  by the appellants' counsel, would be correct if the provision made with regard to the decease of the two daughters had stood alone, still it is not so when viewed in connection--as it must be--with the previous provision, in the same residuary clause, in reference to the decease of one. Having there clearly shown an intention to give to the children of one daughter the precise one-half of the estate which their mother had, no matter which of the daughters of the testatrix should die first, whether it might happen to be the one leaving the largest or smallest number of children, it would seem right to suppose the testatrix had a like intention of giving to the children of each mother the share of the mother, when providing for the decease of both of them.
Should [**16]  it be supposed that the will of the testatrix created in each of her two daughters, not merely a life-estate but a fee, the children of each would be entitled to the same division or distribution of the fund in contest, as they would if the will should be construed as giving to each daughter but a life-estate.
We think the court did wrong in dismissing the petition of the appellants. Although they were not entitled to the full amount claimed by them, yet they were each entitled to a portion of the fund in dispute.
The decree will be reversed and the cause remanded, for the purpose of having the principles of this opinion carried into effect.
The costs are to be paid out of the fund, such being the agreement of the parties.
Decree reversed and cause remanded. 

167 of 196 DOCUMENTS 

ALEXANDER H. BARNITZ vs. HENRY G. RICE, and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 24; 1859 Md. LEXIS 49 

June 23, 1859, Decided 

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

Edmund J. Webb executed a deed to the appellant, as trustee, for the benefit of his creditors, dated the 9th of December 1857. It recites: "Whereas, I, Edmund J. Webb, of Baltimore city, trading under the above name, am indebted to various persons, and am unable promptly to satisfy those liabilities, and desire therefore to make provision, in manner as hereinafter is set forth, for payment of my debts," and then conveys to Barnitz, "all the stock in trade and merchandize, goods, chattels and effects, and promissory notes, securities, evidences of debt, and claims and demands of, or belonging to, or in any wise or manner claimable by me aforesaid," in trust to sell and collect the same, and after paying costs, expenses, and a reasonable compensation to the trustee, to apply the proceeds, 1st, to pay all claims against the grantor for moneys lent for and upon promissory notes or other evidences of debt, given or lent for his accommodation; 2nd, to apply the residue, after satisfying all the claims first provided for, to pay all claims and demands against the grantor of such of his creditors as shall, before the 8th of January next,  [**2]  release all their claims and demands against him, and 3rd, after satisfying the claims and demands of such releasing creditors, all the residue to be applied to or towards paying and satisfying all other claims and demands against the grantor.

It was duly acknowledged and recorded among the chattel records of Baltimore city, and on the 19th of March 1858, the appellees, as creditors of Webb, filed their bill against him and the appellant, assailing this deed as fraudulent and void, upon the ground, among others, that, by its terms, it does not convey real estate, and was not intended to convey any other property than that therein mentioned, as appears from the fact that it was recorded only among the chattel records of Baltimore city, and that as complainants are informed and believe, and therefore charge, said Webb did not, by this deed, convey all the money and property, real, personal and mixed, of which he was owner at the time of its execution.

The bill prayed for an injunction, which was granted, and the motion for a receiver was set down for hearing on a future day.

The defendants, (Webb and the appellant,) in their answer, aver that the deed was made fairly and [**3]  bona fide, and that it covers and embraces all the property on earth, of every description, to which the grantor had any claim, legal or equitable.

The defendants moved to dissolve the injunction, and testimony was taken under an order of the court. The evidence, on the part of the defendants, tended to show that Webb never had any interest in any real estate, and that he gave up, to the last cent, all his property. To the admissibility of this evidence exceptions were filed by the complainants.

The court, (KREBS, J.,) on hearing of the motion to dissolve and the appointment of a receiver, ordered the injunction to be continued and a receiver to be appointed, and from these orders, as well as that granting the injunction, the defendant, Barnitz, appealed.  

DISPOSITION:
Orders affirmed without costs and cause remanded for further proceedings.  

HEADNOTES:

An assignment for the benefit of creditors, and exacting releases, conveys property in these words: "All the stock in trade and merchandise, goods, chattels and effects, and promissory notes, securities, and evidences of debt, and claims or demands of, or belonging to, or in any wise or manner claimable by me. HELD:

That this deed is void as against creditors, because it does not, on its face, convey all the property of the grantor, and extrinsic evidence is not admissible to show, that in point of fact it does embrace all the property which the grantor had at the time of its execution.

In such deeds no particular words are necessary, but any apt words which will convey all the debtor's property, and thereby negative every presumption that there is other property, are sufficient.  

COUNSEL:
Wm. Schley, for the appellant.

The deed contains no reservation or exception whatever, and there is nothing upon its face to justify the inference, that the grantor had real property. If the strict construction of the language of this court, in the case of Rosenberg & Blondheim vs. Moore, 11 Md. Rep., 376, contended for on the other side,  [**4]  is to be adopted, it would be almost impossible for any such deed of trust to be valid. Suppose the deed had purported to convey all the grantor's real estate and personal property, land situated in another State, ships at sea, which can only be conveyed in a particular mode under the Act of Congress, would not have passed by it. Must every such deed be so executed and acknowledged as to pass such property, because by possibility the grantor may possess it? and if it does not, on its face, purport so to do, is it therefore void? The true rule, in such cases, is, that if the deed on its face purports to convey but a part of the grantor's property, or contains any exception or reservation, then it is void. But where there is no such reservation, and general comprehensive words like those in the present deed--"all claims and demands"--are used, the deed must be held to embrace all the grantor's property, and throws the onus on the parties assailing it to show, that he had other property, or, at all events, when so assailed, it is competent for the grantee, under it, to show, by extrinsic proof, that it does embrace all the grantor's property, and that he had no other property than what [**5]  would pass thereby. The language of the court in Rosenberg & Blondheim vs. Moore, and in Malcolm vs. Hodges, 8 Md. Rep., 418, must be read in connection with that in Sangston vs. Gaither, 3 Md. Rep., 48, where the court, in speaking in reference to the deed then before it, say: "The case stated does not plainly show whether this was an assignment of all the debtor's property, and the appellants contend, that the onus of showing such a state of case is on the party claiming against the deed;" and then, after quoting what was said in Green & Trammell vs. Trieber, the court proceed to say: "It would seem, therefore, to be the duty of the party who sets up the deed to show that the debtor had done what the law requires to give it validity." This clearly gives the debtor the right to show, by extrinsic proof, that the deed embraces all the property of the debtor, and is in accordance with the decisions in other cases on similar points. See 2 Gill, 150, Byer vs. Etnyre, et al; Best on Presumptions, 21, 29; 5 Mason, 284, United States vs. Langton, and cases there cited.

P. McLaughlin for the appellees.

The deed does not, in words, profess to convey all the estate of the grantor,  [**6]  though it contains preferences and exacts releases from creditors. In this particular it is similar to the deed in Rosenberg & Blondheim vs. Moore, 11 Md. Rep., 376, in reference to which, the court, whilst holding it void, said: "Whilst the law authorises a debtor to make a deed, such as the one in this case, it yet demands it should be a conveyance without any reservation whatever to himself. This is not plainly manifest on the face of the deed. It should have affirmatively so appeared. As was said in the case of Malcolm vs. Hodges, 8 Md. Rep., 418, the validity of a deed of trust, for the benefit of creditors, must be determined by the deed itself, without reference to extrinsic facts; such an assignment, to be valid, must convey all the property of the debtor, and, in terms, dedicate the whole for the benefit of his creditors." In Green & Trammell vs. Trieber, 3 Md. Rep., 40, it is said: "We are to look to the character with which the law stamps the deed, without reference to extrinsic facts as to motive. If the law imputes to the grantor a design in making the deed, no evidence of intention can change the presumption. If the law declares the deed to be void, it is no matter how [**7]  the question of fraud in fact may stand." These authorities are sufficient to show that the law is well settled in Maryland, that this deed is void, because it does not, on its face, purport to convey all the grantor's property, and that no extrinsic proof is admissible to show that the grantor had no other property.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*28]  LE GRAND, C. J., delivered the opinion of this court.
The decision of this appeal must depend upon the construction to be placed on the deed which has given rise to this controversy. It is a deed by a debtor to a trustee, for the benefit of the creditors of the debtor, and exacting of them releases.
The conveyance of property is in these words: "All the stock in trade and merchandize, goods, chattels and effects, and promissory notes, securities, evidences of debt, and claims and demands of, or belonging to, or in any wise or manner claimable by me."
To this deed it is objected, that it does not, on its face, convey all of the property of the grantor, and not doing so, that it is not competent, to those insisting on its validity, to show, by extrinsic evidence, [**8]  that in point of fact it does convey all the property which the grantor had at the time of its execution.
Under the decisions, and particularly those of this court, we 

 [*29]  think the objection well taken. In the case of Green vs. Trieber, 3 Md. 11, this court said: "We are to look to the character with which the law stamps the deed, without reference to extrinsic facts as to motive. If the law imputes to the grantor a design in making the deed, no evidence of intention can change the presumption. If the law declares the deed to be void, it is no matter how the question of fraud in fact may stand." This doctrine was fully sanctioned in Malcolm, Trustee of Sprigg, vs. Hodges, 8 Md. 418, and re-asserted in Rosenberg & Blondheim vs. Moore, 11 Md. 376.
The language of these cases, it would seem, is too explicit to admit of doubt as to its meaning. But it was urged by the able counsel of the appellant, that it should be viewed in connection with that employed in the case of Sangston, Garnishee vs. Gaither, 3 Md. 40, 48, and if so considered, the particular deed involved in this controversy would [**9]  not be obnoxious to the censure of the law as expounded by this court. We cannot deduce the same conclusion from the collocation and comparison to which we have been invited. In our judgment, the case of Sangston vs. Gaither is in harmony with the subsequent ones to which we have referred. The portions of the opinion relied upon by the appellant's counsel were intended simply as replies to phases of argument presented by counsel, intended to show, that even on his own hypothesis his views could not be sustained. That decision, whilst it expressly declares, "that an assignment for the benefit of creditors, exacting releases, as the condition on which they may participate in the fund, must transfer all the debtor's estate," nowhere lays it down, or even intimates, that where the deed does not, in words, do this, that by testimony aliunde it could be shown the deed did, in point of fact, convey all the property of the grantor, and is therefore, in no respect, in conflict with the cases of Malcolm vs. Hodges and Rosenberg & Blondheim vs. Moore, but, on the contrary, perfectly consistent with them.
We are aware it has been supposed that in cases decided elsewhere,  [**10]  in one particular, a different doctrine from the 

 [*30]  above has been stated. Without inquiring whether or not this opinion be well founded, we remark, that a reference to the leading cases is had in the opinion of the court in United States vs. Langton & Trustees, 5 Mason 284. Whilst these allow of proof, (in cases involving the priority of the United States,) other than the deed, to show that it includes all the property of the grantor, they yet recognize and affirm the principle, that in the case of a conveyance by schedule, "the presumption must be, that there is property not contained in the deed, unless the contrary appears."
We do not wish to be understood as saying any particular words are necessary to be used, but only that such must be employed as will convey all the debtor's property. All that is required is, that the words should comprehend all, and thereby negative every presumption that there is other property. Any words apt to this end will be sufficient. There certainly cannot be any difficulty in finding them in any imaginable case.
Whilst affirming the action of the court below, we deem it but just to say, that we discover nothing in the [**11]  evidence in this cause, going to show, that the grantor, Mr. Webb, either contemplated or practiced any fraud in fact. This decision rests entirely on the legal presumption which arises out of the language of the deed.
Orders affirmed without costs and cause remanded for further proceedings. 

168 of 196 DOCUMENTS 

SAMUEL KATZ vs. ROBERT MOORE and Others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

13 Md. 566; 1859 Md. LEXIS 45 

June 16, 1859, Decided 

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

The bill in this case, filed on the 20th of March 1857, by the appellant against the appellees, alleges, that the complainant, on the 9th of April 1855, applied for the benefit of the insolvent laws, and on the 6th of August following, received his final discharge thereunder; that the defendants being his creditors upon claims owing prior to his application, on the 25th of April 1855 brought suit in the court of Common Pleas, and that on the 10th of September, of the same year, there is an entry of judgment confessed, which judgment was not so confessed by him, nor does he believe that it was confessed by any one in his behalf; that on the 22nd of August 1855, the defendants brought another suit against him in said court, also on claims due before his application, and he avers that no notice or summons thereon was ever served on him, and without his knowledge, and in his absence, a judgment by default was entered on the 24th of January 1856, and inquisition taken, under which the amount of his indebtedness was assessed at $ 267.10; that a fi. fa. has been issued thereon and levied upon his stall No. 54, in the Bel-Air market, which [**2]  the sheriff is about to advertise and sell; that he holds this stall under a yearly license from the city, and the good will thereto belonging has been made by him since his aforesaid application, and is, therefore, not liable for debts contracted prior thereto. He charges, that after the judgment by default, the defendants, well knowing all the circumstances of the case, and contriving fraudulently to obtain an undue advantage over him remained quiet and did not issue the fi. fa. until the second term after said default had been entered, viz., on the 11th of September 1856, at which time they knew it was too late to apply to the Court of Common Pleas to strike out the judgment and quash the fi. fa., but he did so apply, and his motion was denied on the very ground that the term had passed in which the judgment had been entered, and that the same was beyond the jurisdiction of that court. He further charges, that the stall so levied on was obtained by him, by his great personal industry, since his aforesaid application; that by it he is able to support his family, and that if it were sold it would work irreparable injury in the destruction of his business, and that he could recover [**3]  no adequate damages in a court of law for such an injury. The prayer of the bill is for an injunction restraining the sale of this stall, and for general relief. The injunction was granted as prayed.

The defendants, in their answer, admit the complainant's application and discharge, as stated in his bill, and that the claims on which they brought their suits against him were due prior to such application. In reference to the first of such suits, they aver there is an entry on the record of an appearance for the defendant, by O. F. Hack, Esq., an attorney of said court, and that the entry of judgment by confession was made by said Hack in open court. In reference to the second suit, they aver that a summons was duly issued thereon, which was duly returned by the sheriff as served on the complainant, and that the deputy sheriff, whose duty it was to serve it, actually served the same on him; that the complainant moved the court of Common Pleas to strike out this judgment, which motion was overruled, not only because the term had passed, but also on the point that the complainant had been served with the writ, and had notice thereof, and that, too, upon evidence taken on this point [**4]  by both parties, and after a hearing of the same. They deny all manner of fraud in obtaining the judgments and in the issuing, or delaying to issue, the fi. fa., and insist, that the property levied on is liable thereunder, no matter when acquired by the complainant.

A motion to dissolve having been made, a commission was issued and testimony taken. On the part of the complainant, the deposition of O. F. Hack, Esq., was taken, who states that he entered his appearance for the complainant in the first of the suits referred to, and entered the judgment by confession, but that he never could have entered it simply by confession, but must have entered it subject to the insolvent application of the complainant; witness does not remember entering the judgment, but he is perfectly certain he could not have entered it, except subject to complainant's insolvent application, for witness himself had prepared the insolvent papers of the complainant, was perfectly acquainted with his application, and had talked with him and knew all about it. The defendants filed a certified copy of the docket entries ln the second suit, showing, among other things, that the complainant had been duly summoned [**5]  in that case, and that his motion to quash the fi. fa. had been overruled by the court of Common Pleas. They also filed exceptions to so much of the testimony of Mr. Hack as is offered to contradict the records of the judgment in the court of Common Pleas. At the hearing of the motion to dissolve, the court (KREBS, J.) delivered the following opinion:

"The complainant in this case asks relief from this court, by injunction restraining proceedings, upon two judgments rendered against him in the court of Common Pleas of this city, at the suit of the defendants, upon the ground, that in the one case there 'is an entry of judgment confessed, which judgment was not so confessed by him, nor does he believe it was confessed by any one in his behalf,' and that in the other case 'no notice or summons thereon was ever served on him; and without his knowledge, and in his absence a judgment of default was entered and inquisition taken.'

"In regard to this latter case, it appears by a certified copy of the docket entries in the court of Common Pleas, filed as evidence with the commissioner, that the complainant was regularly summoned, and, therefore, has no ground of complaining, for [**6]  the reasons stated in his bill, of this judgment of default against him for not appearing to the suit, and the consequent inquisition of damages. In regard to the other case it appears, that Mr. Hack appeared for the complainant. In that case a judgment was entered by confession.

"The complainant insists, that there is great hardship and injustice in permitting these judgments to be enforced against him, because he had been discharged under the insolvent laws of this State, not long before they were rendered, and they are founded upon causes of action that accrued before his discharge, and should, therefore, be barred by it. But these facts alone, furnish no sufficient reason to this court for its interference in arresting the execution of these judgments. The debts due to the defendants, upon which they are founded, are in no manner impeached, and though the complainant may have been released from legal liability to pay them, by his discharge under the insolvent laws, yet his moral obligation is as strong as ever, and would be a sufficient consideration for a new promise to pay them, and fully sustains these judgments. This is not the case, as the solicitor for the complainant [**7]  supposes, of a judgment rendered upon a void contract, against which, he maintains, a court of equity would protect a defendant, but that of a judgment rendered for a debt which the defendant is morally bound to pay, the consideration for which is undisputed. It is true, that the defendants could not have recovered judgments in these cases, if the complainant had pleaded his discharge, or had relied upon it in the manner sanctioned by the rules of practice in our courts. But this was not done by him in one case, because after he was summoned he failed to appear and avail himself of this protection, and in the other case, because, though he did appear by attorney, a judgment was confessed without the usual qualification.

"The statements of his attorney as made in the evidence, are not sufficient, in my opinion, to warrant this court in saying, that the judgment was confessed subject to the defendant's discharge, even if, according to the established rules of evidence, his parol statements could qualify the records of the court. It is true, that if through fraud, accident or mistake, a judgment should be entered against a defendant for an amount, or in terms, different from those [**8]  intended, a court of equity, upon full proof of such fraud, accident or mistake, would reform and correct it, yet the relief is not asked in this case upon either of these grounds, and if it were upon the ground of accident or mistake, no fraud being pretended, there is not in the record any such clear, explicit and conclusive proof of mistake, as is required by the rules of evidence in such cases. I must, therefore, pass an order dissolving the injunction heretofore issued."

From the order dissolving the injunction the complainant appealed.  

DISPOSITION:
Order affirmed, with costs.  

HEADNOTES:

A court of equity will not interfere to restrain execution of a judgment at law, upon the ground that the defendant had been discharged under the insolvent laws prior to its rendition, and that it was not entered subject to such discharge.

The discharge of a party under the insolvent laws releases him from legal liability to pay his debts, yet the moral obligation remains, and is a sufficient consideration for a new promise to pay them, and fully sustains unconditional judgments against him.

If, through fraud, accident or mistake, a judgment is entered against a party for an amount, or in terms, different from those intended, a court of equity will, upon full proof thereof, reform and correct it.

Where relief is asked on the ground of of accident or mistake alone, there must be clear, explicit and conclusive proof of the mistake to justify the interference of a court of equity.  

COUNSEL:
Wm. Pinkney Whyte for the appellant.

In the first suit the judgment entered by the clerk was not the judgment confessed, as the testimony of Mr. Hack clearly shows. The course pursued by Mr. Hack was in accordance with the general practice in Maryland, and especially in Baltimore city, where the discharge is rarely pleaded, and where, if there is no dispute as to the discharge, the entry is always made of the judgment, subject to the discharge. Evans' Pr., 155. The entry here of an absolute judgment, instead of one subject to the discharge, was a clear mistake on the part of the clerk, which ought to [**9]  be rectified by a court of equity. If the circumstances set out make a case of fraud or mistake, there is no necessity that there should be an express charge, to that effect, in the bill. There is no dispute as to the facts, but the defence set up is, that the matter could be, and was, inquired into in a court of law, and as the judgments were rendered by a court of competent jurisdiction, they cannot be impeached. As a general rule, such may be conceded to be the law, but there are many exceptions to it. Such, for instance, are those cases where, by fraud or mistake, judgments are obtatned by parties contrary to equity, and then courts will interfere to prevent wrong. A court of equity will generally interpose, by injunction, "to prevent a party using an unfair advantage which he has gained by fraud or otherwise." 1 Md. Ch. Dec., 185, Little vs. Price. So courts of equity will intervene against the execution of judgments when the contract sued on was void or against public policy, even though no such defence has been set up at law, but judgments have been entered by confession. 9 Md. 526, Gough vs. Pratt. 1 Story's Eq. Rep., sec. 165.

As to these debts, the appellant was [**10]  entirely released so far as future acquisitions, by his own labor, are concerned, for by the Act of 1854, ch. 193, sec. 4, the release is complete and entire, nor is there anything in the insolvent laws requiring the discharge to be pleaded to a suit brought in order to use it as a defence. The application is matter of record, of which the appellees had due notice, and with the usual practice not to plead the discharge, but to enter the judgments by consent, subject to the discharge, would it not be unconscionable to allow a plaintiff, in the absence of any pretence of a new promise, to take advantage of a judgment entered under the circumstances detailed in this cause? The rule which requires special pleas applies to those cases where notice should be given to the plaintiff, as limitations, which do not extinguish the debt, but only take away the remedy, and where matter of fact is to be inquired into, but in case of an insolvent debtor, the insolvent papers being filed before entry of judgment in one case, and before the issual of the writ in the other, are matters of record, and the plaintiffs are presumed to have knowledge that the defendant had applied for the benefit of the insolvent [**11]  laws. 3 Md. 472, Manahan, et al., vs. Sammon, et al. The policy of the insolvent laws is, to relieve the honest debtor, who gives up his property, from the pressure of his liabilities, and to enable him, by his industry, unembarrassed, to earn a livelihood for himself and family. Such policy is set at defiance if, after a release and without a new promise, suit is brought, and a judgment absolute on its face, but intended and designed by the insolvent's counsel to be subject to his discharge, is to be entered by the mistake of the clerk, and after its discovery no relief can be obtained by the interference of a court of equity.

As to the judgment by default, if it was necessary to plead the discharge, which is denied, then it is insisted, that the appellant, acting under the misapprehension that the appellees had brought one suit against him, in which his counsel had appeared, and supposing the release to exonerate him entirely from any further attention to the matter, (for it appears the discharge was granted sixteen days before the last suit was brought,) may have omitted to attend to it, and that from this no inference can be drawn, that such failure was "the result of [**12]  wilful negligence or intentional disobedience of the command of the process," and this misapprehension ought to entitle him, under all the circumstances of the case, to protection from a court of equity, as the judgment by default was clearly obtained by surprise. In Blackhall vs. Combs, 2 Peere Wms., 70, it was held, that where a bankrupt, after certificate allowed, is sued for a debt due before his bankruptcy, a court of equity, on the circumstances of the case, will relieve, though it will not relieve on a mere matter of mispleading.

P. McLaughlin for the appellees:

In one of these suits the appellant appeared by his attorney of record, and there was an unconditional judgment rendered by confession, as shown by the docket entries in the case. The evidence of Mr. Hack, even if it were sufficient to prove a mistake, is excepted to and cannot be admitted to contradict the record, not being offered for the purpose of showing fraud, accident or mistake. 2 Starkie on Ev., 571. In the other case there was a judgment by default, and the court of Common Pleas, under the act of 1787, ch. 9, sec. 6, had jurisdiction on the motion made to it, to grant the relief as fully as a court [**13]  of equity. And that motion having been made and the question of want of notice there relied on, and the decision thereon, there made, it is a bar to the relief prayed for. 2 Smith's Lead. Cases, 496. 2 H. & G. 374, Munnikuyson vs. Dorsett.

It was the business of the appellant, to have pleaded his insolvency to the suits, and if by his default he has suffered, he himself is to blame and the court will not grant him relief. 1 Story's Eq., sec. 105. The insolvent law of 1854 makes no difference, in this respect, from what was required under the old system. The act of 1805, ch. 110, declares, that the party shall be discharged from all his debts, and is as strong as the language of the new act, that he shall be released therefrom, and yet under the old system it was always held, that the discharge must be pleaded or in some way relied on, and if the party did not rely on it, he was held to have waived it, and an unconditional judgment against him was valid, the moral obligation to pay the debt still remaining, and the discharge having only the effect to bar the remedy.

Again, the bill does not allege surprise, fraud or mistake, as the ground of relief. No fraud is pretended [**14]  even in the proof, and as regards mistake, as a ground upon which courts of equity will interfere with a judgment at law, it has always been held, that it must be made out by the clearest proof, as clearly indeed as if it was admitted in the answer. 5 Md. 365, Falls & Krebs vs. Robinson. 12 Md. 415, Keighler, et al., vs. Savage Manf. Co. 1 Brown's Ch. Rep., 93, Irnham vs. Child.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*573]  ECCLESTON, J., delivered the opinion of this court.
The examination of this case has satisfied us of the propriety of the order appealed from, and of the sufficiency of the reasons assigned in its support, by the judge who passed it, and therefore we affirm it for those reasons.
Order affirmed, with costs. 

169 of 196 DOCUMENTS 

ST. GEORGE W. TEACKLE, Trustee, vs. JOSEPH CROSBY and JOHN BEVAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

14 Md. 14; 1859 Md. LEXIS 48 

June 16, 1859, Decided 

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

This is an appeal from an order of the court below, in the matter of the application of Edward Higgins for the benefit of the insolvent laws.

Higgins made his application on the 30th of March 1858, but filed no schedule of debts due him, or list of his debtors, and did not refer to any such debts or debtors, except in these words, on the first page of his papers, viz:

"Debts due me amount to about $ 1500, in hands of trustee for benefit of my creditors.

(Signed)   "EDWARD HIGGINS."

On the second page the following is added:

"A list of debts due and owing to Edward Higgins, as far as he can at present ascertain them."

"See first page."

(Signed)   "EDWARD HIGGINS."

On the same day the commissioner authorised to act in the premises, by the 17th sec. of the Act of 1854, ch. 193, appointed the appellant trustee, who gave an approved bond, received from the insolvent a deed of all his property of every kind and description, and filed the usual certificate that he had received from the insolvent all the property and evidences of debt mentioned in his schedule.

On the 21st of April 1858, the appellees,  [**2]  creditors of Higgins, filed a petition alleging that he did not exhibit with his petition a schedule of his property and a list of the debts due from and owing to him, with the names of his debtors and creditors, all verified by affidavit, and that the appointment of the appellant as trustee was against the policy of the law, because he was the counsel of Higgins and did not represent any of his creditors; and upon these grounds they ask that the proceedings of the commissioner and the appointment of the trustee may be annulled and revoked, and the petition of Higgins dismissed.

The answer of the appellant to this petition refers to and relies upon the schedule and list of debts above mentioned, and the deed to him from the insolvent, and states, that the trustee has in his possession the schedule of debts due to Higgins, referred to in his petition, and is ready, and prays leave to file the same with the commissioner. The answer admits, that the trustee was, at the time of his appointment, the general counsel of Higgins, but denies that his appointment was, for that reason, in conflict with the policy of the insolvent laws, or that he has any interests adverse to those of the [**3]  creditors.

Upon this petition and answer, the court, (MARSHALL, J.,) on the 24th of April 1858, passed an order, rescinding the appointment of the trustee as having been prematurely made, and remanding the application to the commissioner, with directions, that "in case the said Higgins shall file full and sufficient lists of his debtors and creditors, under oath, to the best of his knowledge and belief, and as far as he can ascertain the same, but not otherwise, the said commissioner shall proceed to appoint a trustee as if the said schedules and lists had been originally filed with the said commissioner." From this order the trustee appealed.  

DISPOSITION:
Affirmed in part, and reversed in part, with costs to the appellant; and cause remanded for further proceedings.  

HEADNOTES:

The failure of an applicant for the benefit of the insolvent law, to exhibit with his petition "a schedule of his property and a list of debts due from and to him, with the names of his debtors and creditors, all verified by affidavit," as required by the Act of 1854, ch. 193, sec. 1, cannot have the effect of rescinding the appointment of the trustee made upon such application.

Such failure will, however, debar the applicant from obtaining a release from his debts until he does comply with such requirements, and (being a resident of Baltimore city) his case should be remanded by the Court of Common Pleas to the commissioner, for the purpose of giving him an opportunity so to comply.

The fact that the person appointed trustee did not represent any of the creditors, but was counsel for the applicant, is no sufficient ground for rescinding his appointment.

The trustee of an insolvent debtor may appeal from an order erroneously rescinding his appointment, for in such a case he is a "party interested" within the meaning of the 20th sec. of the Act of 1854, ch. 193.  

COUNSEL:
I. N. Steele, for the appellant, argued:

1st. That the proceedings under the insolvent law of this State need not show precise conformity with the act by which they are authorised, and are not subject to the strict rule generally applicable to proceedings under a limited or special jurisdiction. 3 H. & McH., 350, Chaplin vs. Shoot. 5 H. & J., 189, Winingder vs. Diffenderffer. 1 Gill, 215, Bowie vs. Jones. The requirements [**4]  of the Act of 1854, ch. 193, are directory merely in reference to the schedules and list of debts. 3 Greenlf's Rep., 297, Mussey vs. White, et al. 7 Hill, 24, Striker vs. Kelly. 5 Cowen, 269, Jackson vs. Young. There is nothing in the Act which makes the filing of lists of debtors and creditors a condition precedent to the court's granting a personal discharge.

2nd That the application of Higgins for the benefit of the insolvent laws, by filing his petition with the schedules and affidavits accompanying it, not only authorised, but made it the legal duty of the commissioner to appoint a trustee for the benefit of creditors; and that this appointment, having been thus legally made, could not, in the absence of misconduct on the part of the trustee, be revoked or rescinded by the court. The jurisdiction of the court to appoint the trustee attached upon the filing of the petition. 1 Gill, 215, Bowie vs. Jones. 10 Md. Rep., 155, Buckey vs. Snouffer. The 2nd sec. of the Act of 1854, ch. 193, requires the court to appoint a trustee, and vests in him all the applicant's property, both that enumerated in the schedules, and that not so enumerated; and, by the 16th and 17th secs., the clerks [**5]  and commissioners have power to appoint the trustee, which power would not have been given to these ministerial officers if the Legislature had supposed they were to decide questions of law in regard to the sufficiency or insufficiency of the schedules, and lists of debtors and creditors to authorise the appointment of a trustee in any particular case. These provisions show that the Legislature intended that the mere filing of the petition should give jurisdiction over the case to appoint the trustee. The 11th sec. gives the court power to remove the trustee for misconduct, and appoint another in his place, and the whole design and spirit of the law is, while granting relief to the debtor, at the same time to protect the interests of creditors, and this is done by the immediate appointment of a trustee, who, as soon as he is appointed and files his bond, takes the entire property of the debtor out of his possession for the benefit of his creditors, subject to the control of the court by whom he is appointed. 1 Md. Rep., 471, Waters vs. Dashiell. 9 Gill, 452, Baylies & Tyson vs. Ellicott. If the appointment of the trustee is invalid by reason of defects in his schedules or lists of [**6]  debtors, then the property would revert to and vest in the applicant, whereas the policy of the insolvent law is, to grasp the property for the benefit of creditors. 4 G. & J., 392, 393, Glenn vs Karthaus. It is therefore submitted:

3rd. That from the time of the application of an insolvent debtor, his property is in the custody of the law for the benefit of his creditors, and for the protection of their interests the law requires the prompt appointment of a trustee; that this appointment ought not to be delayed by a defect or irregularity in the schedules, when there is substantially an offer by the applicant to surrender all his property for the benefit of his creditors, because such a surrender is all that the policy of the insolvent law requires of him, and the creditors have ample protection against injury from such defect, in their right to file interrogatories, and prevent the discharge of the applicant if he does not satisfactorily explain and supply the defects and omissions of his schedules.

4th. That the omission of Higgins to give the names of his debtors, in his list of debts, was not, under the circumstances of this case, a material or substantial defect.

5th.  [**7]  That the selection of a trustee is confided exclusively, by the Act of 1854, to the court or officer making the appointment.

6th. That from this order the trustee had the right to appeal. The 23rd sec. of the Act of 1854, repeals expressly all the prior insolvent laws, and the 20th sec. declares, that any person interested may appeal from the decision of the court on any question under this Act. The trustee's right of appeal in such a case as this, is fully recognized by the case of Salmon vs. Pierson, 8 Md. Rep., 297.

S. T. Wallis, for the appellees, argued:

1st. That the power of the Court of Common Pleas, or its commissioner, to appoint a trustee in insolvency, is a special and limited power, confined exclusively to cases and modes prescribed by the Act of Assembly, and not capable of being rightfully exercised until after due performance of the conditions precedent, which the Act imposes. Whatever may have been the disposition of this court, where proceedings in insolvency have come incidentally in question, to relieve them from the operation of the rigid rule as to the proceedings of courts of limited jurisdiction, there has been no variation of that rule in respect [**8]  to such proceedings before the insolvent courts themselves, and they are held, as all other special jurisdictions, to the course of procedure prescribed by the statutes conferring their powers. 5 H. & J., 132, Shivers vs. Wilson. 1 Gill, 215, Bowie vs. Jones. 2 H. & G., 50, Raborg vs. Hammond. 9 Gill, 241, Powles vs. Dilley. Ibid., 146, Hall vs. Sewell. 11 Md. Rep., 481, Campbell vs. Webb. 2 G. & J., 80, Winchester vs. Union Bank. 10 G. & J., 293, Owings vs. Worthington. Ibid., 385, Stone vs. Magruder. 1 Gill, 381, Boarman vs. Israel.

2nd. That the exhibition of "a list of debts due from and owing to" the applicant, "with the names of his debtors and creditors, all verified by affidavit," is a necessary preliminary to the right to appoint a trustee, under the Act of 1854. 12 Wheat., 81, U. S. Bank vs. Dandridge. 12 Sergt. & Rawle, 306, Bank of Northern Liberties vs. Cresson. Such requirements are not merely formal or unimportant, but are founded upon a wise policy, and are essential matter of substance. If a list of the debtors be not filed, the court may, unknowingly, appoint the principal debtor trustee. If a list of the debts be omitted, those debts may be attached by any creditor,  [**9]  notwithstanding the application and appointment of the trustee, and the execution of a deed to him. By collusion between the applicant and a favored creditor, the latter might have his claims fully satisfied out of the debts not mentioned in the schedule, while the insolvent might obtain his discharge, notwithstanding his having given such preference. The opportunity for collusion would be doubled in the case of a trustee furnished with a list of the debts and debtors which is not filed, and enabled thereby to point out to favored creditors, if corruptly disposed, the opportunity of seizing, perhaps, the most valuable assets. That no such possibility is practically supposable in the present case, does not affect the principle or the importance of the conditions in question. Act of 1854, ch. 193, secs. 1, 2, 15.

3rd. That at the time the application was made, and the debts due Higgins were stated to be "in the hands of trustee for the benefit of creditors," there was no such trustee in existence, and the allegation amounted to nothing more than a statement, that the lists required by law to be filed, before a trustee could be appointed, were not filed, but were retained in the [**10]  hands of the applicant's private counsel, or of the applicant himself. The allegation itself shows, that the failure to file lists was not a mere mistake, and arose out of no difficulty in the applicant's ascertaining the names of his debtors, or specifying what was due him, but was a voluntary and inexcusable omission.

4th. That the Court of Common Pleas had the right to review and correct the irregular action of the commissioner in the illegal appointment of the trustee. Cons., art. 4, sec. 10. Act of 1854, ch. 193, secs. 16, 17.

5th. That the trustee has no right of appeal in this case, not being "interested" in the sense of the statute. Act of 1854, ch. 193, sec. 20. 8 Md. Rep., 297, Salmon vs. Pierson. 4 Md. Rep., 85, Ellicott vs. Warford. 3 Md. Ch. Dec., 302, Colvin's Estate.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*20]  ECCLESTON, J., delivered the opinion of this court.
The Act of 1854, ch. 193, sec. 1, authorises an insolvent to make application, as such, by a petition stating his insolvency, and offering to deliver up, for the benefit of his creditors, all his property, real and personal, and "exhibiting [**11]  therewith a schedule of his property, and a list of the debts due from and owing to him, with the names of his debtors and creditors, all verified by affidavit," &c., &c.
Edward Higgins filed his application for the benefit of the insolvent law, on the 30th of March 1858, and on the same day, the commissioner of insolvents, for the city of Baltimore, appointed St. George W. Teackle trustee, who gave a bond as such, which was approved, and received from the insolvent a deed of all his property. The trustee also filed the usual certificate, that he had received from the insolvent all his property and evidences of debt mentioned in his schedule.
Subsequently, on the 21st of April 1858, the appellees, as creditors of Higgins, filed their petition, charging, that he had filed his petition for the benefit of the insolvent law, but had not "exhibited therewith," as required by law, "a schedule of his property, and a list of the debts due from and owing to him, with the names of his debtors and creditors, all verified by affidavit." The appellees, in their petition, also objected 

 [*21]  to the appointment of Mr. Teackle as trustee; and prayed that the proceedings of the commissioner,  [**12]  and the appointment of the trustee, might be annulled and revoked, and the petition of Higgins be dismissed.
After the trustee had put in his answer, the court passed an order rescinding the appointment of the trustee, upon the ground of its having been prematurely made. By the same order, the application of Higgins was remanded to the commissioner, who was ordered and directed to appoint a trustee as if sufficient schedules and lists had been originally filed; provided Higgins should file full and sufficient schedules of his debts and credits, with full and sufficient lists of his debtors and creditors, under oath, and as far as he could ascertain the same, but not otherwise.
From this order the trustee has appealed.
Higgins certainly failed to comply with the provisions of the Act, and his failure to do so ought to debar him from obtaining a release from his debts until he does comply with the requirements of the statute. Such, we think, was the design of the law, but we cannot suppose it ever was intended that such a failure on his part should have the effect of rescinding the appointment of his trustee.
It is, manifestly, one of the main objects of the insolvent system to have [**13]  the property of the applicant placed, promptly and securely, in the hands of a trustee, to be converted into money and distributed amongst the creditors as speedily as practicable. If he is to be removed, merely because of the insolvent's non-compliance with the law, in the particulars mentioned, and no other trustee is to be appointed until the insolvent does comply, it will be allowing his misconduct to prejudice, delay and hinder the creditors, without any neglect or fault on their part, or that of the trustee. An interpretation of the law producing such consequences could not have been intended by the Legislature, nor would it be calculated to insure a compliance with its provisions. But a more reasonable interpretation, and much more likely to have the requirements of the Act complied with, would be to retain the trustee, and at the same time deny to the applicant a final discharge until he does comply.

 [*22]  The appellees, in their petition, also urged, as a reason for removing the trustee, that he "did not represent any of the creditors, but was counsel for the applicant." This, where, in other respects, the trustee is an unexceptionable person, cannot be a sufficient [**14]  ground for rescinding the appointment, and ordering another trustee to be appointed only when the insolvent shall have "filed full and sufficient schedules of his debts and credits, with full and sufficient lists of his debtors and creditors, under oath."
From what has been said, it will be seen, that we concur with the judge below in regard to so much of the order appealed from, as remanded the case to the commissioner for the purpose of giving the insolvent an opportunity of complying with the provisions of the Act of 1854. But we think the said order is erroneous, because it rescinded the appointment of the trustee. The decision will, therefore, be affirmed in part and reversed in part, with costs to the appellant, and the cause will be remanded, so that the principles announced in this opinion may be carried into effect.
One of the points presented by the counsel for the appellants is, "That the trustee has no right to appeal in this case, not being 'interested' in the sense of the statute."
To sustain this view reference is made to Rachel Colvin's Estate, 3 Md. Ch. 278. Ellicott vs. Warford, 4 Md. Rep. 80. Salmon, Trustee of Boon, vs. Pierson, 8 Md. 297. [**15]  
In the first two of these cases the decisions were, that a receiver in chancery had no right to appeal from an order discharging him. In both cases the nature of his office is spoken of. In 4 Md. Rep., the court say: "The appointment of a receiver does not determine any right, or affect the title of either party, in any manner whatever. He is the officer of the court, and truly the hand of the court. His holding is the holding of the court from him from whom the possession was taken. He is appointed on behalf of all the parties, and not of the plaintiff, or of one of the defendants only. His appointment is not to oust any party of his right of the possession of the property, but merely to retain it for the benefit of the 

 [*23]  party who may ultimately appear to be entitled to it. And when that is ascertained the receiver will be considered as his receiver."
In 3 Md. Ch. Dec., it is said: "The court must act by its officers and agents, and there is as much propriety in calling the court the representative of any of the parties to the cause, as its agents and officers, who derive their authority from the court, and are removable at its discretion."
The 2nd section of [**16]  the Act of 1854, declares expressly, that all the property, of every description, of the insolvent, "the necessary wearing apparel and bedding of himself and family, or such property as may by law be exempted from execution, excepted," shall vest in the trustee.
He, therefore, is not merely a receiver holding possession of the property, as the hand of the court, but the title is actually vested in him, in trust for the use and benefit of the creditors generally, although they may not appear to be parties to the proceedings in which he is appointed. A decision which denies to a receiver the right to appeal from an order discharging him does not necessarily warrant the conclusion, that the present appeal cannot be sustained.
In 8 Md. Rep., the claim of the appellee, against the insolvent estate was allowed by the auditor. The trustee excepted, which exception was overruled, and the court allowed the claim. The appeal of the trustee, from this decision, was dismissed upon the ground that the relation of the trustee to the estate did not authorize him to object to the claims of creditors, who might, if they pleased, litigate, inter sese, as actors, in reference to the same [**17]  subject matter. The question there under consideration was, whether the claim of a creditor had been properly allowed in the distribution of the assets of the estate? In such a case, this court decided, the trustee could not appeal. It is there said, however, "If he has an interest, as trustee, in reference to his allowance for commissions and expenses, or as creditor of the insolvent, he has an equal right, with others, to object to the distribution and to appeal." If he may appeal where a distribution injuriously affects his interests, "in reference to his allowance for commissions," he 

 [*24]  surely ought to be entitled to appeal from an order which erroneously rescinds his appointment, thereby depriving him of his trusteeship entirely.
Salmon, Trustee of Boon, vs. Pierson, was an appeal under the Act of 1849, ch. 88, which the court held to embrace only, "persons aggrieved by the action of the court below." The present case comes before us under the 20th section of the Act of 1854, which provides, "That any person interested may appeal from the decision of the court on any question under this act." This appeal presents a question arising under that Act, and we think [**18]  the trustee is interested in the decision thereof.
Affirmed in part, and reversed in part, with costs to the appellant; and cause remanded for further proceedings.
LE GRAND, C. J., dissented.  

170 of 196 DOCUMENTS 

ISAAC D. FOUKE vs. ANDREW J. FLEMING and JONATHAN E. DOUGLASS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

13 Md. 392; 1859 Md. LEXIS 36 

May 31, 1859, Decided 

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

Attachment on warrant, issued on the 6th of March 1857, at the instance of the appellees, against Israel Russell, a nonresident debtor. The claim stated in the writ is $ 629.41. The writ was laid on the 7th of March 1857, on two canal boats, as the property of the defendant Russell. The appellant, Fouke, came in and claimed the property under the following deed from Russell to him:

"This deed, made this 30th day of January, in the year 1857, by Israel Russell of Jefferson county, in the State of Virginia, witnesseth." It then recites Russell's indebtedness to H. Herr, of Jefferson county, Virginia, on two notes under seal, one for $ 200, and the other for $ 500, on both of which Joseph L. Russell and Jacob T. Russell, are his sureties, and also his indebtedness to Hartley & Brother, of Georgetown, in the District of Columbia, in the sum of $ 520.14, on a promissory note, on which Joseph L. Russell and Jonathan Russell, are his sureties, and also his indebtedness to S. B. Preston, of Frederick county, Maryland, in the sum of $ 150, upon an order accepted by him. It then proceeds: "And, whereas, the said Israel Russell, is [**2]  anxious to pay and satisfy to the said Abraham Herr, Hartley & Brother, and Samuel B. Preston, and to indemnify and save harmless his said sureties, has proposed and agreed to assign the property hereinafter mentioned, unto Isaac Fouke, of Jefferson county, in the State of Virginia, in trust, for the payment of the aforesaid notes and indebtedness. Now, therefore, the said Israel Russell, doth grant unto the said Isaac Fouke, his executors, administrators and assigns, the following property, that is to say; canal boat 'James F. Essex', with all the furniture, implements, apparatus, &c., belonging to the same; canal boat 'J. F. Wheatley,' with all the furniture, apparatus, &c., belonging to the same; also one lot of fish tubs, about one hundred and twenty in number; also one lot of fish barrels about forty in number; also a lot of ropes, and block and tackle, and three lots of boat gears; which said property is situated in Washington county, State of Maryland. To have and to hold the said property above described and granted, to him the said Isaac Fouke, his executors, administrators and assigns, in trust, however, to sell and dispose of the same at public or private sale, and upon [**3]  such terms and notice as he may deem most expedient; and it is hereby declared, that the said Isaac Fouke, shall stand possessed of the money arising from said sale or sales, upon trust, in the first place to the payment of all costs, charges and expenses, he may incur in the execution and creation of this trust, including a commission of five per cent. to himself as trustee; secondly, in trust that he shall apply the residue of said money, in payment and satisfaction of the several debts due to the said Abraham H. Herr, Hartley & Brother, and Samuel B. Preston, hereinbefore mentioned, pari passu and without any preference or priority of payment; and after the payment or satisfaction of the said debts, costs and expenses, then in trust, that he shall pay the surplus, if any, unto the said Israel Russell, his executors, administrators or assigns." The deed then contains a covenant, that Fouke "shall not be in any manner responsible for any accident, loss or deterioration of the said property, nor for any thing, except for the faithful application of the money which shall actually come into his hands, or for wilful and gross neglect," and also a covenant for further assurances and conveyances,  [**4]  "for the purpose of carrying out and effectuating the object and design of the aforesaid deed of trust."

This deed was acknowledged before a justice of the peace in and for Washington county, on the same day it was executed, and on the same day was recorded among the land records of Washington county, but there was no affidavit that the consideration therein set forth was true and bona fide.

Exception. In the trial of the case, upon issue made upon this claim of Fouke, certain admissions and agreements of facts were entered into, which are fully stated in the opinion of this court. The question in the case was as to the validity of this deed The court below, (PERRY J.,) granted an instruction to the jury, at the instance of the plaintiffs, (which is also stated in the opinion of this court,) to the effect, that the deed was void as against the plaintiffs, the creditors of Russell. To the granting of this prayer the claimant excepted, and appealed from the judgment of condemnation, on verdict in favor of the plaintiffs.  

DISPOSITION:
Judgment reversed and no procedendo awarded.  

HEADNOTES:

A deed conveying certain specified articles of personal property, to a trustee, with power to sell the same, and from the proceeds pay certain specified debts, and the residue to the grantor, is a quasi mortgage, and not a voluntary assignment of all the grantor's property, for the benefit of his creditors generally.

In such a deed, the reservation of the surplus to the grantor, after paying the particular debts, does not render it void, as this gives to the debtor nothing more than he is entitled to in the case of a technical mortgage, nor is the validity of such a deed, in other respects, to be tested by the law applicable to voluntary conveyances by debtors, for the payment of their debts, exacting releases.

A citizen of Virginia, residing therein, having personal property in Maryland, and being here temporarily, may execute a conveyance of such property in the county where it is, at the time, and such a deed, acknowledged and recorded agreeably to the laws of Maryland, is valid against an attaching creditor of the grantor, in the absence of any proof of the laws of Virginia making it otherwise.

A temporary or transient residence by a citizen of another State, in a county of this State, where his personal property is, at the time, situated, is such a residence as amounts to a compliance with the provisions of the act of 1856, ch. 154, requiring bills of sale or mortgages, to be acknowledged and recorded in the county where the party executing the same resides.

No affidavit as to the consideration of a bill of sale or mortgage of personal property is now required; such affidavits are expressly dispensed with, by the act of 1856, ch. 154, secs. 128 and 142, and the provisions of these sections are in no way repealed or affected by the act of 1856, ch. 113, passed on the same day.

Where the engrossed bill, and the published copy of a law correspond, this court cannot assume they are erroneous, and decide the law to be according to the evidence of the proceedings of the Legislature, as furnished by the journals of the two Houses.

An engrossed bill, according to the practice of our Legislature, is examined by a committee of the house in which it originated, then assented to, as engrossed, by both Houses, and signed by the Governor, with the seal of State annexed, and this is better evidence of what a law is, than the journals of the two branches, each journal being kept and attested only, by the chief clerk of his particular branch.  

COUNSEL:
A. K. Syester and Z. H. Clagett for the appellant.

The sole question in this case relates to the validity [**5]  of the deed from Russell to Fouke, and the appellant insists upon its validity.

1st. Because it is a mere pledge or hypothecation of particular property to pay particular debts. This deed may be taken as a mortgage, created in the form of a deed of trust, to secure a debt and indemnify a surety. That deeds in this form have been held to be mortgages, see 15 New York Rep., 207, Curtis, et al., vs. Leavitt; 1 Selden, 547, King vs. Merchants Exchange Co.; 4 Watts & Sergt., 383, Ridgway vs. Stewart; 7 Watts & Sergt., 343, Manufacturers & Mechanics Bank vs. Bank of Pennsylvania; 3 Md. 82, Charles vs. Clagett. And the express reservation of the surplus is nothing more than the operation of the law would be without it; it is precisely what takes place in every mortgage.

2nd. Because this deed cannot, in any sense, be regarded as an assignment by a debtor in failing circumstances, for the benefit of creditors, and its invalidity cannot be tested by the rules applicable to such instruments. It has none of the marks of such an instrument; it does not say so, and there is nothing upon its face (beyond which we cannot look) to fix that character upon it. Its whole design, and its [**6]  only object, is to secure the payment of a debt and to indemnify and save harmless certain sureties. It does not exact releases from the creditors, and does not profess to convey all the grantor's property, and is, in fact, nothing more than the assignment of particular property to pay a particular debt, which it is the undoubted right of every debtor to do. All the authorities clearly establish a distinction between a general assignment by a man in failing circumstances, for the benefit of his creditors, and a particular assignment of specific property, for the benefit of particular creditors. This distinction is clearly recognized in the case of Green & Trammell vs. Trieber, 3 Md. 30, 31, 36, 38, and runs through all the Maryland cases cited by the appellee. See also 5 Term Rep., 420, Estwick vs. Caillaud. 10 Paige, 461, Dias vs. Bouchaud. 15 New York Rep., 126, 127. 4 Watts & Sergt., 383. 7 Watts & Sergt., 343. 3 Sumner, 345, United States vs. McLellan, et al. There is no badge of fraud in the case,--nothing to show that the grantor was in insolvent circumstances, and the resulting trust, in favor of the grantor, is only what the law implies from every mortgage, and can, in [**7]  no sense, be regarded as an indication of fraud. 15 New York Rep., 117, 127, 128, 132, 205. 3 Md. 48, Sangston vs. Gaither.

3rd. Because there is no valid legal objection to the acknowledgment of the deed. The conveyancing law of 1856, ch. 154, secs. 129 and 142, declare that such an instrument, if acknowledged within the State, may be acknowledged before any one justice of the peace of the county or city in which the grantor resides. A temporary residence is all that is here meant. It is true that the general rule is, that a transfer of personal property, good by the law of the owner's domicil, is valid wherever else the property may be situate; but it does not follow that a transfer made by the owner, according to the law of the place of its actual situs, would not as completely divest his title; nor even that a transfer by him, in a foreign country, which would be good, according to the law of that country, would not be equally effectual, although he might not have his domicil there. For purpose of transfer his personal property may, in many cases, be deemed subject to his disposal wherever he may happen to be at the time of alienation. Story's Conf. of Laws, secs. 384,  [**8]  392. See, also, 2 H. & McH., 46, Sim & Lee's Lessee vs. Deakins. 7 Md. 214, Field vs. Adreon, et al. 1 Md. 519, Bryan, et al., vs. Hawthorne, et al.

4th. Because no affidavit to a bill of sale or mortgage of personalty is required. The act of 1856, ch. 154, secs. 128 and 142 is emphatic: "No affidavit is required." The volume of printed laws, published by authority, is as reliable in demonstrating what the law is, in a given case, as an exemplification of the record itself, verified by the officer who is the keeper of the record. 1 Greenlf. on Ev., sec., 480, and the authorities there cited. The printed laws are made evidence of the law. The journal of proceedings, therefore, by which it is supposed, by some, that the law is not as found in the printed volume, cannot be resorted to for any such purpose. If the journal of proceedings could be introduced to contradict the plain and explicit language of the statute, it would be making the journal the best evidence of the law--placing it above the record itself, and investing it with those legislative sanctions which the Constitution declares shall be received by the statute. The journal cannot be brought forward to contradict [**9]  the statute without clothing it with sanctions superior to the statute itself. We can find no authority that looks to such a state of things as that. The two acts then of 1854, ch. 113, and ch. 154 must be construed with reference to the question before us. We think the act of 1854, ch. 154, ought to be controlling. It was intended to be the Act on the subject, and has always been so regarded. Its design was to present the general law, and, of course, to control and overrule everything in conflict with it. The title shows this. The forms and rules applicable to conveyancing were intended to be simplified and abridged. The whole history of the act demonstrates that it was intended to embrace the controlling principles and rules on the subject. The Legislature have preserved the spirit of the report presented by the commissioners, by enacting the law in the very words, except in unimportant particulars, in which it came before it. It is the general controlling law on the subject, and can only be repealed by something equally authoritative, and explicitly and emphatically in conflict with its own language. The act of 1854, ch. 113, though equal in authority, is not direct and positive [**10]  in its language. If that act shall control the direct and emphatic words of ch. 154, then those words are to be stricken from the body of the statute by implication or by inference. It is submitted, that such a result cannot take place. The case is stronger than where the direct words are sought to be avoided on the theory that they are repealed. The two acts were passed on the same day, as appears by the printed laws. The one assumes the existence of a statute which the other repeals. The one imposes forms and burthens by implication or inference, which the other, in strong and positive language, abrogates and abolishes; and where the intention of the Legislature is doubtful, courts will always incline against that construction or view which imposes a burthen. Broom's Legal Maxims, 439, and the authorities there cited. Again, the court ought to uphold this conveyance, because it is in conformity with the printed laws, and if a mode differing from that prescribed by the statute, to which the profession and public have always looked for the law, shall be prescribed by the court, it will have the effect to unsettle most of the titles acquired since the passage of the act, and produce [**11]  ruinous litigation.

R. H. Alvey for the appellees argued, that the deed in question is void as against the appellees, the creditors of the grantor:

1st. It is not a mortgage and has none of the attributes of a mortgage, but is, as it expressly purports to be, a voluntary deed of trust for the benefit of certain creditors, and the grantor himself, to the exclusion of all his other creditors. Its object was to pay prior debts, and not to raise money, and hence, it comes within the case of Green & Trammell vs. Trieber, 3 Md. 11. It reserves the surplus proceeds of the property to the grantor himself, after discharging the specific claims, without in any way providing for his other debts, and is, therefore, ipso facto, et constructione legis, void. The creditors are entitled to the benefit of the whole estate of the debtor, and cannot be compelled to resort to a part of it only, and any attempt of the debtor to place any part of his property beyond the reach of his creditors, and for his own benefit, is a fraud, and avoids the instrument by which it is sought to be effected. 3 Md. 50, 51, Sangston vs. Gaither. 2 Comstock, 370, Barney vs. Griffin. 6 Hill., 438, Goodrich [**12]  vs. Downs. The legal presumption from making such an instrument as this, must be, and is, that the debtor did not intend his creditors, other than those specifically provided for, to have any benefit of the property conveyed; for if he had intended to devote his property to the honest purpose of paying all his debts, the most proper and reasonable mode of accomplishing it, would have been by making provision for all in the same deed. 3 Md. 31. 5 G. & J. 456, Birely vs. Staley. And non constat the grantor, Russell, owned any other property at the time of making this assignment, than that conveyed, and were it a question of fact, dependent upon the sufficiency of the property of the debtor, other than that assigned, to pay all his debts, it would be incumbent upon the appellant, to establish the fact of such sufficiency, before the assignment could be relieved from the imputation of fraud. 3 Md. 53. 5 G. & J. 455. 9 Gill 449, Worthington vs. Shipley. It is not, however, a question of fact, but a question of law, presented by the face of the deed itself. It is immaterial, how the question of fraud in fact may stand; and the court will not look outside the deed, to [**13]  ascertain the circumstances of the debtor, or whether there will be or not a surplus, after paying off the debts provided for by the assignment. 3 Md. 40, 53. 8 Md. 418, Malcolm vs. Hodges. 11 Md. 183, Inloes vs. American Exchange Bank. If, by possibility, the assignment could operate prejudicially to the plaintiffs, by locking up property of their debtor, or obstructing the usual process of making it liable to their claims, it is, in legal contemplation, an unlawful hindrance and delay, such as will avoid the deed.

2nd. But the deed is wholly void as against the appellees on another ground. It has been neither legally acknowledged or recorded. The property attempted to be conveyed was personal, and while both the grantor and the grantee reside in the State of Virginia, the deed has been acknowledged and recorded in Washington county, Maryland, and not in, and according to the law of, the State where the parties resided. As the property was personal, and as such, transferable by the law of the domicil of the grantor, the acknowledgment and recording of the deed in Maryland, were nugatory acts, having no legal effect as against the appellees. Assuming the law of Virginia [**14]  to be the same as that of Maryland, the deed should have been acknowledged and recorded in the former State, instead of the latter. 12 Md. 54, Wilson vs. Carson. 9 Md. 194, Haney vs. Marshall. 1 H. & J. 14, Gittings vs. Hall. 2 H. & J. 380, Hall vs. Gittings. 2 Gill 150, Byer vs. Etnyre. Acts of 1715, ch. 47, sec. 9; 1766, ch. 14, sec. 4, and 1807, ch. 52. The policy and reason of the registry laws only apply to the legal situs of the property, and in, the case of personalty, the only legal situs is the domicil of the owner.

3rd. But if this deed be treated as a mere mortgage and not as a deed of trust, it then becomes liable to the insuperable objection, that it has no affidavit, as to the bona fides of the consideration that induced its execution. It is true, the act of 1856, ch. 154, as it has been printed and published, dispenses with the affidavit; but it is manifest, that such could not have been the intention of the Legislature, for on the same day with the passage of that act, we find another, ch. 113, was passed, entitled "An act amendatory of an act, entitled an act to prevent frauds in mortgages and bills of sale, passed at December session 1846,  [**15]  ch. 271." By this act, passed on the same day with the one, ch. 154, it is provided: "That whenever any deed of mortgage or bill of sale shall be executed in favor of several persons jointly, the affidavit of any one of the mortgagees or grantees, named in the said mortgage or bill of sale, indorsed on said mortgage or bill of sale, that the consideration therein set forth, is true and bona fide, shall render such mortgage or bill of sale as valid and effective as if said affidavit had been made by all of said mortgagees or grantees, as now required by the original act of which this is amendatory," &c. This amendatory act is general, and applies to all mortgages and bills of sale. It cannot be said to apply to mortgages of real estate only, and thus make it consist with ch. 154; for in addition to the general comprehensive terms employed, it embraces bills of sale, which, as well as mortgages of personal property, are, by ch. 154, declared to be good without the affidavit.

Now, which of these two acts is to be taken as declaratory of the legislative will and intent? The act, ch. 113, seems to have been made upon deliberation, and for the correction of inconveniences which had [**16]  been found to exist. It certainly gives no evidence of any intention on the part of the Legislature to depart from the policy and requirements of the previous law, farther than the alteration effected by the amendatory act. Of these two acts, appearing by the printed volume of laws to have been passed on the same day, which received the last reading and was last put to vote, cannot be ascertained, unless we go to the proceedings of the Legislature, and if we do that, we find at once that the provisions of ch. 154, dispensing with the affidavit, both as to mortgages of personalty and bills of sale, were stricken out of the act, as originally prepared and reported, and that, in fact, they are no part of the law as it was enacted by the two branches of the Legislature, and that in lieu of the dispensative provisions, as they now stand in the printed copy of the law, provisions were adopted, expressly requiring the affidavit to be made to all mortgages of personal property and bills of sale. See Senate Journal of 1856, pages 233, 234, and House Journal, pages 497, 498. It is apparent then, that ch. 154, as it has been printed and published, only dispenses with the affidavit, because of [**17]  the misprision or carelessness of the engrossing clerk, or the blunders of the printer, and not because the Legislature intended it to be so, but directly the contrary. If the legislative will is at all material to be arrived at, to enable us to put a proper construction upon these conflicting acts, it would seem that our only recourse is, to ascertain what was really enacted as law, and to do this, we have no better means than the journals of the two houses of the Legislature, which contain and give evidence of the exact expression of intent of these two bodies.

But if we are concluded by the mere copyist or the printer, and not permitted to go behind the printed volume of the laws which the Legislature never saw, what is to be the interpretation, where two laws pass upon the same day and upon the same subject, directly opposite in their provisions? There is no fraction of a day in legislative proceedings, and, therefore, neither law can be insisted on as the last expression of intent. Standing then upon an equality, as the simultaneous expression of will and design, which is to be the most favored, the statute which, by implication only, repeals a previously enacted and then [**18]  existing statute, or the statute which expressly recognises and makes further provision to such existing law? This seems to be the question as between the two statutes now under consideration. There are two principles in the construction of statutes, that, to my apprehension, have a controlling application to this question. The first is, that all statutes in pari materia, are construed as one law, in order to arrive at the intention of the Legislature; and the second is, that repeals of statutes by implication, are things disfavored by law and never allowed, but when the inconsistency and repugnancy are plain and unavoidable. 4 G. & J. 128, 152, Canal Co. vs. Rail Road Co. 19 Viner's Abr., 525, pl. 132. It follows as a corollary of this latter proposition, that if the Legislature have left the matter in doubt, as to what rule shall obtain, the court will rather adhere to and maintain by construction the former law, and with it the amendment thereto, passed simultaneously with the law in apparent conflict, than declare that former law and its amendments repealed by doubtful implication. I say doubtful, because it certainly passes our understandings, if we are confined to the printed [**19]  statute book, to determine which of two contemporaneous statutes speak the will of the Legislature. The argument on the other side would place the Legislature in the position of having, on the same day and by the same exertion of their power, provided how a thing should be done, and saying that it shall not be done, an absolute inconsistency which cannot be imputed to them. Again, if ch. 154, renders the affidavit needless as to mortgages of personalty and bills of sale, then the provisions of ch. 113, in relation to these matters, are useless and perfectly nugatory, because they have nothing upon which they can operate.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*402]  ECCLESTON, J., delivered the opinion of this court.
In this case an attachment was issued, at the instance of the appellees, out of the Circuit court for Washington county, in March 1857, against Israel Russell, and was laid on two canal boats.

 [*403]  The attachment being returned, Isaac Fouke, the appellant, appeared as claimant of the property attached, asserting his claim, under a deed made to him by said Russell, prior to the issuing of the attachment. [**20]  
At the trial, in support of his claim, the appellant offered the deed from Russell, bearing date the 30th of January 1857, for the two canal boats, and other articles of personal property. It was recorded in one of the land record books of Washington county, Maryland, on the day of its date, after it had been acknowledged by Russell, on the same day, before a justice of the peace of the State of Maryland, in and for Washington county: the signing, sealing and delivery of which deed were admitted by the plaintiff. And, by agreement of the parties, the same was read to the jury, subject to all objections as to its admissibility and legal effect and validity, to be raised by prayers.
It was agreed that the debt, for which the attachment issued, was due and owing before, and on the day of the date of the deed, and also at the time of the issuing of the attachment; that the writ of attachment states the correct amount of such indebtedness; and further, that Israel Russell, the defendant, was, at the time of issuing the attachment, a resident and citizen of the State of Virginia.
It was admitted that the property attached is the same, or part of the same, mentioned in the deed, and that [**21]  the attachment proceedings were regular.
At the instance of the plaintiffs' counsel the court gave the following instruction:
"That the said deed of assignment offered in evidence, and read as aforesaid, is void in law as against the plaintiffs, if the jury find, that the said Israel Russell, the assignor, was, at the time of making said assignment, indebted to the said plaintiffs on the claim for which the attachment issued in this cause."
To the granting of this instruction the claimant, Fouke, excepted, and upon the rendition of the verdict and judgment against him, he appealed.
The question to be decided is, whether the deed from Russell to Fouke, transferred to the latter such a title to the property 

 [*404]  in dispute, as should have prevented a judgment of condemnation thereof, under the attachment; or in other words, whether the deed was void as against the appellees.
They insist that it is, and in support of this position they rely upon the principles established by the following cases: Green & Trammell vs. Trieber, 3 Md. 11. Sangston vs. Gaither, 3 Md. 40. Malcolm vs. Hodges, 8 Md. 418, and Inloes vs. American Exchange Bank, 11 Md. 173. [**22]  
In Green & Trammell vs. Trieber, the grantor's deed included all his property, and he was insolvent at the date of the deed. He "reserved to himself the possession and enjoyment of all his property for at least six, perhaps for twenty-four months, and, indeed, for an indefinite time, if the trustees should not think proper to sell, and none of the preferred creditors should require the sale to be made. He also reserved to himself the surplus, after payment of the claims of the assenting creditors, and of Brady, (whose assent was not required,) to the exclusion of all other creditors, who could, in no event, obtain any part of their claims by the provisions of the deed, and these benefits, confined as they were to such of the named creditors as might assent, were extended to them only on the condition that they would, while the debtor was using and enjoying the property, grant further time on their claims against him."
In Sangston vs. Gaither, the deed recited the indebtedness of the grantor to various firms and persons, and his desire to provide for paying the same. It conveyed the property, in trust, to be distributed to each creditor who should elect, within sixty days [**23]  from the date of the deed, to come in and share in the trust, and should also file a sufficient release to the debtor, with the trustee, (and no other creditor whatsoever,) such a dividend of the assets as he should be found entitled to, in the proportion of the whole of the debts thereinbefore scheduled, to the whole amount of the nett assets. And the deed also provided, that the dividends, or proportions which would have been payable to such creditors, if any, as should not have released, should be retained by the trustee in such distribution, and paid over to the grantor, leaving such 

 [*405]  creditors to their ordinary legal remedy against him. The surplus, if any, "after paying the debts aforesaid," was to be paid to the grantor. In that case it did not plainly appear whether the deed was an assignment of all the debtor's property or not. And there, as in a former case, the court said, "that an assignment for the benefit of creditors, exacting releases as the condition on which they might participate in the fund, must transfer all the debtor's estate." Nevertheless there the deed exacted releases, and also reserved to the debtor the dividends of such creditors as might neglect [**24]  or refuse to execute releases. He likewise reserved to himself any surplus which might remain after satisfying the creditors named in the deed. See pages 46, 48 and 49 of 3 Md. Rep.
In Malcolm vs. Hodges, the deed professed to convey all the estate and effects of the grantors, in trust for those of their creditors, who should, on or before a certain day, sign a release to the debtors, from all their individual and co-partnership liabilities to the said creditors. It was held, that such a deed "must not only convey all the property of the debtor, but must, in terms, dedicate the whole for the benefit of the creditors, subject to such preferences as might be declared in the deed. And there must not be any reservation to the debtor, express or implied."
Inasmuch as the deed expressly restricted the application of the trust funds for creditors, to those creditors only who might come in within a certain time and execute releases, and nothing being said in regard to any surplus, the surplus, if any, would result to the debtor. The deed was, therefore, considered void, because there was an implied reservation of such surplus to the grantor.
In Inloes vs. American Exchange  [**25]   Bank, the provision which avoided the deed was that which gave the trustee power, at his discretion, to sell the property conveyed by the deed, consisting of a stock of goods in trade, "gradually in the manner and on the terms in which, in course of their business," the grantors "had sold and disposed of their merchandize."
In reference to the deed before us there is nothing from 

 [*406]  which we can consider it to be a general assignment of all the grantor's property, for the benefit of his creditors generally, or that he was in insolvent circumstances. It exacts no releases, nor does it reserve the property for his use and enjoyment, either for a short or long period of time, but gives authority to the trustee "to sell and dispose of the same at public or private sale, and upon such terms and notice as he may deem most expedient."
Instead of regarding this, (as insisted upon by the appellees,) a deed of trust or assignment for the creditors generally, of the grantor, it is, in our opinion, simply a deed of trust, or quasi mortgage, designed to secure the payment of a few specified debts due to the firm of Hartley & Brother, and to two individuals, Abraham Herr [**26]  and Samuel B. Preston, and also to indemnify and save harmless Joseph L. Russell, and Jonathan Russell, as the sureties of the grantor for some of those debts.
In Green & Trammell, vs. Trieber, the court say: "We must observe the distinction between conveyances of the whole or a part of the debtor's property, as a security for particular debts, on an agreement with the creditors for further time, and voluntary conveyances by debtors for the payment of their debts."
Believing this to be a conveyance, designed only "as a security for particular debts," and not a voluntary conveyance by a debtor for the payment of his debts generally, and regarding it as a quasi mortgage, as has been previously said, we do not think that a reservation of the surplus to the grantor, after paying those particular debts, can render the deed void. Such a reservation will secure to the debtor nothing more than he would be entitled to in the case of a technical mortgage, if the mortgaged property should be sold for payment of the mortgage debts, leaving a surplus of proceeds of sale beyond the amount required to satisfy the mortgagees' claims.
Nor do we perceive in this conveyance any defect, making [**27]  it void, upon the principles established by the decisions in the cases referred to, and much relied upon by the counsel for the appellees, as showing this deed to be void. It differs, essentially, from each of the deeds held to be void in those cases.

 [*407]  The validity of the deed has been objected to, because the grantor was a citizen and resident of Virginia, at the date of it; because it was executed and acknowledged before a justice of the peace of the State of Maryland, in and for Washington county, and recorded in said county, the property included in the instrument, and now in dispute, being then in that county.
The appellees say, this being personal property, and the grantor a resident of Virginia, the law of that State must prevail. But this cannot be true, when there is no proof of what is the law of Virginia on the subject; and, in the absence of such proof, we must be governed by our own law.
The act of 1856, ch. 154, sec. 129, provides, that "A bill of sale, if acknowledged within the State, may be acknowledged before any one justice of the peace, or judge of the orphans court, of the county or city in which the vendor resides."
The next section says: "If acknowledged [**28]  out of the State, before any officer authorized to take acknowledgments of deeds."
Section 131 says: "Bills of sale shall be recorded in the county or city where the vendor or donor resides, within twenty days from the date."
Section 142 provides, that "Mortgages of personal property shall be acknowledged and recorded in the same manner as bills of sale."
Supposing the Maryland law to prevail, then the counsel for the appellees says, the instrument under consideration, if either a bill of sale or mortgage of personal property, it was neither acknowledged nor recorded, according to the requirements of the act just referred to. It was acknowledged and recorded in this State, but not in the county where the vendor, grantor or mortgagor resided, and could not be, because he resided in Virginia. This defect, it was contended, must render the instrument inoperative as against the attachment.
The question presented is, if a citizen of a sister State, residing therein, having personal property in Maryland, and being here temporarily, executes and acknowledges a conveyance of the property in the county where it is, at the time, and the conveyance is there recorded within twenty days from [**29]  

 [*408]  its date, is such an instrument valid as against an attaching creditor of the grantor, in the absence of any proof of the laws of the sister State, making the conveyance otherwise? We think it is. In saying this we must not be understood as holding, that if a citizen of this State were to acknowledge and have recorded a similar conveyance, in a county where he did not reside, it would be valid.
Sim and Lee's Lessee vs. Deakins, 2 H. & McH. 46, was an ejectment for two tracts of land lying in Washington county. A deed for those lands, to the lessors of the plaintiff, from Jeremiah Warder, of Philadelphia, was offered in evidence. It appeared to be acknowledged in Cecil county, Maryland, before two of the justices of Cecil county court.
It was proved that Warder resided in Pennsylvania; that he was personally present, and executed and acknowledged the deed in Cecil county, before two magistrates of the said county; and that the lands were in Washington county.
The deed was objected to as not having been acknowledged according to the act of 1766, ch. 14.
The 2nd section of that act made provision for the acknowledgment of deeds in the Provincial Court,  [**30]  or before one of the justices thereof, in the county court, or before two justices of the same county where the lands were.
The 3rd section provided for cases where persons making deeds should live remote from the Provincial Court, or out of the county where the lands were lying. And such persons were authorized to acknowledge the deeds in the county "wherein he, she or they, should reside."
The 4th section provided for the case of non-residents, and authorizing their deeds to be acknowledged by letter of attorney.
The counsel for the defendant contended, that the expression reside, used in the act, meant where a person had his continual, ordinary or usual habitation. That the grantor in the deed in question could not be considered as a resident of the county where the acknowledgment was made, but was merely a traveller from or to his usual place of residence.
The plaintiffs' counsel insisted, that the residence is equivocal, 

 [*409]  and might mean either a general or temporary residence, according to the subject matter. So that if the nature of the subject be such as to require a general or constant residence, then it should be expounded to mean such a residence. And,  [**31]  on the contrary, the subject being transient or of a temporary nature, it would require but a temporary residence. It was also argued, that the resident of Pennsylvania, by merely coming into this State, gained a residence pro hac vice, within the intent and meaning of the law.
The General Court decided, that the deed and acknowledgment should be read in evidence to the jury, and declared that it was sufficient in law to convey the lands therein mentioned. And the Court of Appeals affirmed the judgment of the General Court.
The act of July session, 1779, ch. 8, in establishing a mode to perpetuate testimony, provides, that the depositions of witnesses may be taken "before a judge of the General Court, or justice of the county, where such witnesses respectively reside."
In Bryden vs. Taylor, 2 H. & J. 395, it appears the General Court held, that this act "did not require an efficient residence, such as would make a person a domicil, qualify him to vote or to be capable of holding an office; but a temporary or transient residence was sufficient." Which decision was affirmed by the Court of Appeals.
The case of Hall vs. Gittings, 2 H. & J. 380, has been referred [**32]  to by the appellees' counsel as being opposed to the decision in Sim & Lee's Lessee vs. Deakins. But there is a difference between those cases. In one the deed was acknowledged in this State by a citizen of Pennsylvania, in the other, it was acknowledged by a citizen of Maryland, and not in Anne Arundel county, where he had his principal residence, where he voted, served on juries, and was enrolled in the militia, but at Belle-Air, in Prince Georges, a county adjoining to Anne Arundel. The proof showed, that Ogle, the grantor in the deed, with his family, temporarily resided at Belle-Air, during the summer and autumn, sometimes for a longer and sometimes for a shorter time; that the day on which the deed was executed, Ogle, with his wife, for a short time only, stopped 

 [*410]  at Belle-Air, on their way to or from Anne Arundel county, and during their continuance at Belle-Air the deed was there executed; that immediately after the execution and acknowledgment of the deed, he and his wife left Prince Georges county, and he did not go thither with his family to remain during a part of the summer and autumn, according to his custom, until several weeks after the time of executing [**33]  the deed.
The General Court instructed the jury, if they should find the facts thus stated, that then the deed was good and valid in law to pass and transfer all the interest of Ogle, in the land, to Bosley, the grantee.
After giving the instruction, it is added: "The court do not say, that a person going from one county to another can acknowledge a deed for lands lying in a different county, but a temporary residence, and not a mere transitory residence, is sufficient for that purpose."
The lands included in the deed were situate in Baltimore county.
Upon appeal the above instruction was reversed, but the reasons for the reversal are not reported. It may be that the Court of Appeals did not consider the facts stated as presenting the case of even a temporary residence, but merely a transient residence, or the mere going from one county to another, in the State, by a resident of Maryland, at the time the deed was acknowledged. The case, certainly, was one in relation to a citizen and permanent resident of this State, and not to a citizen and resident of another State coming into this and acknowledging a deed relating either to lands or personal estate.
The act of 1809,  [**34]  ch. 168, provides for the acknowledgment and recording of receipts, acquittances, releases or final discharges, of executors, administrators and guardians, from any heir, representative or legatee, of full age, or other person authorized to execute the same, and enacts, that all such instruments, "which shall have been acknowledged before any justice of the peace, or register of wills of the county wherein such heir, representative, legatee, or other person, authorized to execute the same, resides, may be recorded."

 [*411]  In Carroll vs. Tyler, 2 H. & G. 54, copies of two receipts, certified by the register of wills for Prince Georges county, were offered in evidence and objected to as being inadmissible, because it did not appear that the persons giving and acknowledging the receipts resided in the county where the acknowledgments were made. The court overruled the objection, and the defendant excepted.
The Court of Appeals say: "The copies offered were duly attested under the seal of the recording office, and appear to us to have been acknowledged and recorded agreeably to the act of 1809, ch. 168."
In reference to the particular ground of objection,  [**35]  it is said: "The place of their residence does not appear on the face of the acknowledgment, but that they were in Prince Georges county, at the time of making it, is clear, for else it could not have been made before the register of wills of that county. This indicates a temporary or transient residence, which we consider sufficient, at least, in the absence of proof of actual residence elsewhere." Then reference is made to Bryden vs. Taylor, as authority.
In Field, et al., vs. Adreon, et al., Garn. of Kennedy, 7 Md. 209, it was held, that although Kennedy, an unnaturalized foreigner, residing and doing business in this State, was not a citizen for every purpose, and in every sense, yet, for commercial or business purposes, Kennedy "was a citizen of this State in contemplation of our attachment system."
The cases which have been referred to seem to sanction the propriety of deciding, that Israel Russell, although a citizen of Virginia, having his general or habitual residence there, should be considered as having a temporary residence here, or such a residence as will gratify the requirements of the act of 1856, in relation to such an instrument [**36]  as the one in question; and that he acquired such a residence by coming into Maryland, executing and acknowledging the conveyance, the same having been recorded the day it was acknowledged.
Believing, as we do, that the temporary residence of Israel Russell was such a residence as amounted to a compliance with the provisions of the act requiring a bill of sale or mortgage 

 [*412]  to be acknowledged and recorded in the county where the party executing the same resides, the general rule, which considers the situs or permanent domicil of the owner of personal property to be the situs of such property, and when his permanent domicil is in one State, and the property in another, the property is to be governed by the law of the owner's domicil, cannot operate in this case so as to render this conveyance void. Story in his Conflict of Laws, sec. 384, holds, very explicitly, that when a person, having his domicil in one country, owns personal property in another, if personally present where the property is actually situate, at the time, a transfer of the same, made by him according to the law of the place where he makes the transfer, will be valid and binding. See [**37]  also note 2, to section 364, of the Conflict of Laws, on pages 605, 606, (Ed. of 1846.)
A further objection to the validity of the deed, or conveyance, is, that there is no endorsement thereon of any affidavit, that the consideration therein set forth is true and bona fide. But this objection must be overruled. The 128th section of the Act of 1856, in very express terms declares, that no such affidavit shall be required in relation to a bill of sale. And the 142nd section of the same Act, when speaking of mortgages of personal property, says: "No affidavit, as to the consideration, shall be required." These provisions, dispensing with the affidavit, are contained in the engrossed bill, and in the law, as published; but, nevertheless, it has been contended, that they are not, in reality, parts of the Act, as passed by the Legislature, and should not be considered as parts of the law. In support of this view it is said, that the original bill, as reported, contained the sections which dispense with the affidavit, both as to bills of sale and mortgages of personal property, as now contained in the printed copy of the Act, but that the bill was amended in the Senate,  [**38]  by striking out the provisions in the 128th and 142nd sections, which dispense with the affidavit, as to the consideration, and adopting other provisions in lieu of them, expressly requiring the affidavit, both in relation to bills of sale and mortgages of personal property; which amendments of the Senate were assented to by the 

 [*413]  House of Delegates; and that they were included in the bill, as finally passed, may be seen by reference to the Senate journal of 1856, pages 233, 234, and the House journal, of same session. pages 497, 498.
Seeing that the engrossed bill and the published copy of the law correspond, we do not feel authorised to assume they are erroneous, and decide the law to be according to the evidence of the proceedings of the Legislature, as furnished by the journals of the two Houses.
An engrossed bill, according to the practice of legislation in this State, is examined by a committee of the house in which it originated, then the bill, as engrossed, is assented to by both houses, then attested by the chief clerk of each house and signed by the Governor, with the seal of the State annexed. All this would seem to be better evidence of what a law is than the [**39]  journals of the two branches of the Legislature, each journal being kept and attested only by the chief clerk of his particular branch. See also the Act of 1845, ch. 89.
But assuming the law, as published, to be correct, still, it is insisted, that, when viewed in connection with chapter 113, of the same session and passed the same day, the 154th chapter should not be construed as dispensing with the necessity for the affidavit.
Chapter 113 is entitled, "An Act amendatory of an Act entitled, an Act to prevent frauds in mortgages and bills of sale, passed at December session eighteen hundred and forty-six, chapter two hundred and seventy-one." Its first section provides, that where there are several mortgagees or grantees, the affidavit of any one of them shall make the instrument as valid as if the affidavit had been made by all the mortgagees, or grantees, as required by the original act. It also declares, that any mortgage or bill of sale, executed since the passage of the original act, which should show, upon its face, that the affidavit had been made by one of the mortgagees or grantees, should be as valid as if it had been made by all of them.
The second section allows the [**40]  affidavit to be made by an agent or attorney, where the mortgagees or mortgagee, grantees or grantee, should not reside in the county or city in 

 [*414]  which it should be necessary to record the mortgage or bill of sale.
This act was evidently designed, chiefly to remedy evils or inconveniences supposed to result from the provisions of the original act, to which it was made amendatory, and certainly does not, in terms, appear to have been passed in reference to the 154th chapter of the same session. By merely providing how the affidavit may be made, it surely cannot be construed as repealing those provisions of chapter 154, which declare, most explicitly, that an affidavit shall not be required for a bill of sale, or a mortgage of personal property.
In speaking of these two acts we shall, for convenience, designate chapter 113, as the first, and chapter 154 as the second law.
The 3d sec. of the first act makes it take effect from the date of its passage. The second contains no provision as to when it should go into effect, and, of course, it did not do so until the first day of June 1856.
It has been said, that when the two acts are seen to have been passed on the same day,  [**41]  it cannot be supposed the Legislature intended the second should be construed as rendering an affidavit to bills of sale and mortgages of personal estate wholly unnecessary, when, at the same time, by the first act, they provided how the affidavit might be made in relation to the same instruments. And it has been urged in argument, that the proper interpretation of the two laws must be, to require the affidavit, because the opposite theory would be to stultify the Legislature, by imputing to it the absolute inconsistency of providing how a thing may be done, and declaring, at the same time, that it shall not be done. And further, if the second act renders the affidavit needless, as to bills of sale and mortgages of personal estate, then the provisions of the first, in relation to those instruments, are useless and perfectly nugatory, having nothing on which they can operate, although such instruments, which might be made after the passage of that act, are provided for by it. An interpretation of a law, which must render some of its provisions nugatory, it is contended, should be avoided, as far as practicable. But construing the 

 [*415]  second law as dispensing with the affidavit,  [**42]  will not render the first utterly nugatory and useless, as has been supposed, with reference to bills of sale and mortgages of personal estate, executed subsequently to that act. We have seen that the second did not take effect until the first of June 1856, and the other did on the 8th of March preceding, (being the day of its passage,) and therefore its provisions would operate upon any of the instruments alluded to, which may have been executed between the dates above mentioned. The sections of the second law, in regard to such instruments, can have no influence or effect upon the provisions of the first, which relate to mortgages of real estate, or to those in reference to a mortgage of any sort, or a bill of sale, made prior to that act and after the passage of the original act, mentioned therein.
Thus, it will be seen, the second act may be construed as dispensing with the affidavit, as to the consideration of a bill of sale or mortgage of personal property, without rendering any of the provisions of the first act perfectly nugatory and useless, for the want of subjects on which they could operate.
We consider the conveyance, executed by Israel Russell to the appellant, valid,  [**43]  and the instruction given by the court below erroneous; the judgment therefore must be reversed, and no procedendo will be awarded.
Judgment reversed and no procedendo awarded. 

171 of 196 DOCUMENTS 

ELIZABETH POWER vs. THORNTON A. JENKINS and others--THORNTON A. JENKINS and others vs. ELIZABETH POWER.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

13 Md. 443; 1859 Md. LEXIS 39 

May 31, 1859, Decided 

PRIOR HISTORY:
 [**1]  CROSS-APPEALS from the Circuit Court for Baltimore City.

John Power, of Baltimore city, died in 1840, leaving a will, executed on the 15th of April 1840, and admitted to probate on the 8th of July 1840, by which, after directing his debts to be paid, he devised as follows:

"I leave and bequeath to my beloved wife, Ann, the house and lot on the corner of Eutaw and Ross streets, now in fee, during her natural life, and also seven hundred dollars for to support the house, with as much of the furniture as she may require to furnish it, but should she not accede to the same, she is then to have one thousand dollars a year during her natural life, and to which of either she agrees to, at her death the amount of above, with whatever may accumulate on the same, is to go equal halves to my two children, but should either of them not survive, then it is to go to their heirs, or to the surviving heirs of either, in case the other leaves none. I also bequeath and leave to Isabella Power, the wife of my late brother William Power, the sum of thirty dollars a year during her natural life, at her death it is to go back equal to my two children William and Anne, or to their surviving heirs.  [**2]  I also leave and bequeath to my sister Isabella Dill, now in Ireland, one hundred dollars, to be paid to her or her attorney, by my executors, one year after my death. The balance of my estate is to be divided equal halves between my two children William Power and Anne Power Jenkins, with a request, that my son William and my son-in-law Thornton A. Jenkins, will use their parts to the best possible advantage for their rising generation."

After the death of the testator, his widow Ann Power, elected to take the annuity of $ 1000, for her life, as provided for by his will, and on the 28th of August 1841, William Power and Thornton A. Jenkins, and Anne his wife, united in a mortgage to the widow and Isabella Power, (the other annuitant for life of $ 30 named in the will,) of three parcels of property of which the testator died seized in fee, viz., one at the corner of Eutaw and Ross streets, one at the corner of Howard and Ross streets, and the other at the corner of Franklin street and John Alley, to secure the punctual payment of both annuities. This mortgage recites the will of John Power, and the election of Ann Power his widow, to take the $ 1000 per annum during her life, upon [**3]  the conditions and limitations contained in the will, which election is evidenced by her signing and sealing these presents, and then conveys the property to her and the said Isabella Power, "for and during the period of their respective lives," with the proviso, that if the grantors, or either of them, shall pay or cause to be paid, to the said Ann Power, the said sum of $ 1000 per annum, on the first day of July, in each and every year during her life, and to the said Isabella Power, the said sum of $ 30 per annum, on the first day of July, in each and every year during her life, "then these presents and every matter and thing therein contained, shall cease and be utterly null and void."

William Power, subsequently married Elizabeth Frick, and died in 1852, without issue, leaving a will duly executed, by which he devised his entire estate to his said wife, making her his sole devisee and legatee. Anne Jenkins, also, subsequently died, leaving two infant children, Virginia Jenkins and Sarah Jenkins, and her husband Thornton A. Jenkins, surviving her.

On the 7th of January 1854, the bill in this case was filed by Ann Power and Isabella Power, the two annuitants under the [**4]  will, and the mortgagees in the aforesaid mortgage, and Elizabeth Power, widow of William Power, against Thornton A. Jenkins, and his two infant children, praying, by reason of the annuities remaining much in arrear, the rents of the mortgaged property being insufficient for their payment, for a sale of the whole of the mortgaged premises; for an investment of a sufficient amount of the proceeds of sale, to pay regularly the annuities out of the income of such investment; and for a present distribution of the balance of the proceeds of sale, one-half to the complainant, Elizabeth, and the other half to the defendants, Thornton A Jenkins and his children, according to their respective interests.

Thornton A. Jenkins, by his answer, agreed to the propriety and necessity of the sale as prayed for, but claimed, that upon the true construction of the will of John Power, the whole of his estate, upon the death of William Power without issue, vested in the respondent and his children, subject only to the annuities aforesaid, payable for life to Ann and Isabella Power; or that, at least, in case that construction of the will should be incorrect, such principal sum as might be necessary [**5]  by its investment to provide for those annuitants, would, at the death of such annuitants, be distributable to respondent and his children, to the exclusion of Elizabeth Power, by reason of the death of her husband, William Power, without issue.

The further necessary proceedings and proofs having been taken, a decree was passed, directing the property to be sold and the proceeds of sale to be brought into court, reserving all questions of right and distribution between Elizabeth Power and Thornton A. Jenkins, and his children. A part of the property, viz., the houses and lots on the corners of Eutaw and Ross, and Howard and Ross streets, respectively, having been sold and the proceeds brought into court for distribution, the matter reserved by the decree was considered and determined by the court, and a further decree was thereupon passed, directing the trustees to invest a principal sum, sufficient by its income to pay the annuities of $ 1030, ordering the payment of the same to the annuitants, and after their death, the payment of the principal sum so invested to the two children of Anne Jenkins, or in case of the death of either of them, to such one as should be living at the [**6]  death of said annuitants; and as to the surplus proceeds of sale, left after making the investments aforesaid, the same were decreed to be equally divided between the said children of Anne Jenkins, and the said Elizabeth, widow of William Power, as his devisee. The rights of Thornton A. Jenkins, as tenant, by the courtesy, were reserved. The following is the opinion of the court below, (KREBS J.) delivered upon passing this decree:

"To the questions submitted to the court in regard to the construction of certain clauses in the will of John Power's, I am of opinion, that the devise in the second clause of the will to his two children, comprised that portion of his estate, which, in the previous part of the said clause, he had set apart, or devoted to the use and support of his wife during her life, being either the house at the corner of Eutaw and Ross streets, and the sum of $ 700, or the annuity of $ 1000, as she might in the exercise of the option given to her in the will select the one or the other. The property, which in this clause of his will he devises to his two children, they are to take "at her death," which plainly indicates that it is the same which she is to hold [**7]  and enjoy during her life. I differ, however, from the solicitors of both parties in their views as to the intention of the testator, expressed in the use of the words, "should either of them not survive." I do not think he meant to declare in what manner the shares in the said property devised to them respectively should go, after it had vested in them, in case "either of them should not survive," but that his purpose was to direct in what manner the property devised to his wife for life, should go, in case either of his children should not survive her. After providing that what he had given to her "at her death should go equal halves to his two children," he says, but should either of them not survive, then 'it' is to go to their heirs, not his or her half, but 'it,' evidently meaning the property which, at her death, was by the will to be given to other objects of his bounty. He intended to designate in what manner the property should go after her death, not in what manner it should go after it had vested in his two children, and either of them died. This view I think is sustained by subsequent clauses in this will. He leaves to Isabella Power "the sum of thirty dollars a year,  [**8]  during her natural life, and, after her death, it is to go back to (his) two children William and Anne, or to their surviving heirs." To them, if they should be living at the time of her death, if not, to their heirs surviving. The testator further devises in these words: 'The balance of my estate is to be divided equal halves between my two children William Power and Ann Power Jenkins, with a request that my son William and my son-in-law Thornton A. Jenkins, will use their parts to the best possible advantage for their rising generation.' In this clause, the testator gives a large part of his estate to his two children, but he gives no direction as to the manner in which it shall go upon the death of either. It was quite as important that he should have given such direction in reference to this portion of his property devised to them, as it was in reference to that devised in the former clause of his will. The omission to do so in this clause, furnishes a strong argument against the position that he intended to do so in the others. And further, I think it may be fairly contended, that the request contained in the clause above quoted, as to the manner in which he wished his son and [**9]  son-in-law, to use their parts, was designed by the testator to apply to all the property devised to them in his will, and that it all vested in them respectively, simply with that request accompanying it, and without any provisions or directions in regard to its course after the death of either. If this view be correct, William Power having died before his mother, this devise can never take effect in regard to him. Mrs. Jenkins being also dead, leaving children, they, if living at the time of the death of Mrs. Power, will take the property devised to her for life, inasmuch as, in my opinion, 'the surviving heirs of either,' mentioned in the will, mean the surviving children. Surviving another, implies, having lived at the same time with him, and living longer or outliving him; the surviving heirs of either, mean, those heirs who were living at the same time with either, and survived either; evidently denoting the children of either of these devisees. If, however, I am in error in the above construction given to this will, and the devise to William Power, in the said second clause, is to be regarded as a remainder vested in him in his life time, I am still of opinion, that upon his [**10]  death, without children, it will become the property of the children of Mrs. Jenkins I do not regard this as a devise over after an indefinite failure of issue or heirs, and therefore not good as an executory devise. It is to the 'surviving heirs of either, in case the other leaves none.' It must take effect during lives in being, because the surviving heirs of either mean heirs living at the same time with either and surviving him or her. The devise being 'to the surviving heirs of either in case the other leaves none,' the testator could not have meant an indefinite failure of heirs, because the parties standing to each other in the relation of brother and sister, neither could be said to die without heirs or to leave no heirs, whilst the other left heirs surviving, and the very persons who would answer to the class of the surviving heirs of the one, would be the heirs of the other. The testator then in using the words, in case the 'other leaves none,' or no heirs, must have meant in case the other leaves no children. All the residue of the estate, except what may be required by investment to raise the annuity to the widow of $ 1000 per annum, I am of opinion, vests in equal shares [**11]  in the devisee of the testator's son William, and in the heirs of Mrs. Jenkins. The question in regard to any allowance to Thornton A. Jenkins, out of the funds of this estate, as tenant by the curtesy, will be considered hereafter."

From that portion of the decree which distributes the surplus, Jenkins and his children appealed, and from that part which distributes the principal of the fund invested after the life annuities shall cease, Elizabeth Power appealed.  

DISPOSITION:
Decree reversed and cause remanded.  

HEADNOTES:

A testator bequeathed a house and lot, and other property, to his wife for life, or $ 1000 a year for life, at her election, "and to which of either she agrees to, at her death, the amount of above with whatever may accumulate on the same, is to go equal halves to" his two children, "but should either of them not survive, then it is to go to their heirs or to the surviving heirs of either, in case the other leaves none." He also bequeathed to his sister-in-law, $ 30 a year for life, "and at her death it is to go back equal to" his two children, "or to their surviving heirs." "The balance of" his "estate," he then directed "to be divided equal halves between" his said two children, who were a son and a married daughter. The widow elected to take the life annuity of $ 1000. The son, together with the daughter and her husband, then executed a mortgage of the testator's real estate to the widow and the other annuitant, to secure the payment of their annuities. The son then married and died without issue, leaving a will, by which he devised all his estate to his wife. The daughter subsequently died leaving children. A bill was then filed by the annuitants, for a sale of the mortgaged property to pay their annuities, and the same having been sold, and the proceeds brought into court for distribution; HELD:

1st. That the bequests in this will, to the testator's wife and sister-in-law, are pecuniary legacies, which are not, either by the terms of the will, or by operation of law, chargeable upon the real estate.

2nd. Even if the widow, by reason of her rights under the act of Assembly as purchaser, "with a fair consideration," could charge her annuity upon the realty, neither the other annuitant nor the parties to whom the annuities are given after the death of the life annuitants, can do so.

3rd. The mortgage created a lien upon the estate conveyed by it, in favor of the mortgagees only, and to secure to them the payment of their respective annuities for life, and when they are paid the whole purpose of the mortgage will be gratified, and the property will revert to the mortgagors, as if no such mortgage had been made.

4th. By the residuary clause of the will, the mortgaged real estate was vested in fee, in the testator's two children, and the proceeds of sale, subject only to the claim of the life annuitants, belong, one-half to the children of his daughter, subject to the curtesy rights of her surviving husband, and the other half to the widow and sole devisee of his son.  

COUNSEL:
I. N. Steele and J. M. Campbell, for Elizabeth Power, insisted, that the fund here is real estate, and was such when the will operated upon it, and, having been converted into personalty since the testator's death, the appellees can only claim it as the devisees of the realty, under the will, or that by the will a charge is made upon the real estate to pay the annuities. They then argued, as to the construction of the first clause of the will, by which, after the devises to the wife, of a house and lot and an annuity of $ 700, or at her election, an annuity of $ 1000, he devises, "And to which of either she agrees to, at her death, the amount of the above, with whatever may accumulate [**12]  on the same, to go equal halves to my two children, but should either of them not survive, then it is to go to their heirs, or to the surviving heirs of either, in case the other leaves none."

1st. As to the devise over, what it embraces and to what it entitles. It may well be argued, that the devise over of "the amount of the above, with whatever may accumulate on the same," only applies to the accumulations which the testator supposed, might arise, and that he intended the annuity to cease on the death of his wife, but however this may be, it is insisted: 1st. That the devise over, following the devise of the annuity, for life, to the widow, was not, according to its true construction, a devise absolutely, or in perpetuity, of such a principal sum as would be sufficient, by its investment, to produce that annuity; that there is nothing previously devised to the widow, to which such limitation over can apply, except the specified property there mentioned, viz: the house and furniture; and that if it does apply to the annuity, yet, as the devise to the widow is of nothing but an annuity for life, and that too an annuity de novo, created by the will, the devise over of "the amount [**13]  of the same," is, at most, but a devise over of the same, or a similar annuity for life and not in perpetuity. 1 Craig & Phillips, 274, Blewitt vs. Roberts, and same case in 10 Simons, 491. 8 Eng. Law & Eq. Rep., 178, Yates vs. Madden. 9 Beavans, 479 Hedges vs. Harpur. 2nd. That even if it were held to be a devise over of a principal sum, sufficient to produce the annuity, there is nothing in the will creating a charge for it, or the annuity, on the real estate of the testator, and entitling the devisees, by force of the devise, alone and independently of the mortgage, to have that principal sum or the annuity raised out of the sale of the realty. 10 G. & J. 143, Stevens vs. Gregg. 6 Gill 320, Cornish vs. Wilson. 2 Johns. Ch. Rep., 614, Lupton vs. Lupton. If this position is sustained, and this devise is not a charge upon the real estate, the whole case for the other side fails, and the court will not be called upon to construe an almost inexplicable will, and we confidently insist, that this position is correct. There is nothing on the face of the will to charge these annuities upon the land; they cannot be considered as any thing more than mere pecuniary legacies, and if [**14]  this will makes them a charge upon land, then every possible will will make every legacy such a charge. But the counsel for the other side says, if it is admitted the will does not make a charge, still the Act of 1798, ch. 101, comes in aid and makes the widow a purchaser, for a fair consideration, of the devise to her, and therefore this devise is a charge upon the realty. That act only says, the widow is a purchaser of what is given her by the will, but does not aid the construction of the will; its only effect is to make her title superior to that of other legatees. But suppose this would help the widow, how can it aid the remainder men? They clearly have no claim to be considered as purchasers for a fair consideration. 3rd. That even if there were such a charge on the realty, it gives no title to the realty, but only a remedy against it for the payment of the legacy, and could not because of the right to such remedy, be held to be a devise, either of the real estate or of the investment made by its sales, so as to render any such investment, for the previous annuitants, the object or the subject matter of the devise, and that therefore the devisees over were not entitled to the [**15]  present decree for the payment over to them of such investment, at the death of the annuitants, except only by showing an existing present right to have their legacy paid, or secured, out of the realty, and such a right as would, independently of the mortgage, and by force of the devise and charge alone, have entitled them to that decree, and that, in this case, the devisees over had no such right, and have shown no case, by the proceedings, entitling them to enforce the charge against the investment, resulting as a part of the realty of the estate, after the purposes of the mortgage were gratified. 2 Cox, 15, Gawler vs. Standerwick. Ward on Legacies, 289, et seq. in 18 Law Lib., 149. 1 Roper on Legacies, 931. 4th. That the whole proceedings below being based on the mortgage by the children, to secure only the payment of the two annuities for life, the title to the equity of redemption in the mortgaged premises, and therefore, to the proceeds of sale, after the gratification of the claims of the annuitants, remained in the mortgagees, as if no such mortgage had been made, and as a right springing from the mortgage, which gave no title out of them to any but the secured annuitants,  [**16]  and that under the proceedings and the case, as presented and shown by them, the appellees were not entitled, by force of the devise over, to claim the equity of redemption, or the investment resulting to the mortgagees after the discharge of the annuitants' claims. The mortgage thus given by the parties can have no effect upon the construction of the will, (1 H. & G. 74, Ringgold vs. Ringgold; 11 Md. 29, Hutchins vs. Dixon;) nor change their rights thereunder, nor was it ever designed to have such effect.

2nd. As to who is entitled under this devise over: On this question the appellant insists:

1st. That the two children took an absolute estate defeasible only by their not surviving the testator, and that, therefore, upon William's survivorship of the testator, his title to the moiety or half of the bequest became vested and absolute, and passed to his legatee; that the words of survivorship as here used refer to the death of the testator, and not to that of the widow, as the period of the vesting of the legacy, and, in legal construction, operate only to prevent a lapse, and not to postpone the vesting until after the death of the widow; that the mere fact, that [**17]  the period for the actual enjoyment of the legacy is after the expiration of the life-estate, does not alter this construction of the words of survivorship, and, by referring them to the death of the life-tenant, prevent the vesting until that period, unless, by the clear intent of the will, the vesting, as well as the enjoyment, is postponed until that period, which, it is insisted, is not the case as to this will; and that a contrary construction would render the bequest over contingent, from the death of the testator to that of the widow, is contrary to the rules of law which favor vesting, is not required to give effect to any clear intent of the testator, but might, on the contrary, by lapse, defeat that intent. 3 Coke, 19, Boraston's Case. 2 Roper on Legacies, 1377 to 1381 and note 3, at page 1379. Lewis on Perpetuities, in 52 Law Lib., 339 to 341. 8 Barn. & Cress., 231, Long vs. Prigg. 5 Barn. & Ald., 636, Clayton vs. Lowe. 9 Leigh, 79, Hansford vs. Elliott. 4 Geo. Rep., 461, Vickers vs. Stone. 1 Dev. & Batt. Ch. Rep., 42, Gill vs. Weaver. 9 Md. 31, Dorsey vs. Dorsey.

2nd. That the words, "if either of them does not survive, then it is to go to their heirs, or to the [**18]  surviving heirs of either, in case the other leaves none," did not render the previous devise to the children contingent until the death of the widow, or divest the vested estate of William in the one-half, because of his death before the widow; that these words of survivorship were only intended to designate the manner in which the estate, previously vested in William, was to go at his death, and were used as words of limitation of that estate; and that by such words it gave William an estate-tail, with cross-remainder to the heirs of his sister, and, therefore, the absolute estate, which passed to his legatee; or if not, then it gave him the fee, subject to an executory devise over, which was too remote. 4 H. & J. 431, Horne vs. Lyeth. 1 Gill 426, Gardner vs. Simmes. 12 G. & J. 84, Hatton vs. Weems. 2 H. & J. 69, Laidler vs. Young. 4 H. & McH., 393, Davidge vs. Chaney. 2 Gill 238, Mitchell vs. Mitchell.

3rd. That if the words, "if either of them does not survive" import survivorship at the death of the widow, and the word "heirs" is not a word of limitation, but of substitution, then the children of the testator took, at his death, vested interests in the [**19]  bequest, defeasible by their death before the widow; that on the death of William, leaving the widow surviving, the devise over "to his heirs" took effect as a substitutional devise for that to himself, and that under such devise "to his heirs" it vested absolutely (and to the exclusion of the further devise over to the heirs of the other) in those who were, by law, at the death of William, his heirs as to personalty, and entitled, as such, to succeed to it, viz., his distributees under our statute, and that, therefore, the appellant, as widow of William, and distributee as such, was entitled, at his death, under said devise over, to the one-half of William's original share of the bequest over to the children, in equal halves. 1 Roper on Legacies, 619 to 622. 2 Wms. Excrs., 1092, 1093. 5 Ves., 207, Harrison vs. Foreman. 1 Jac. & Walk., 388, Vaux vs. Henderson, in note (c.) 2 Mylne & Keene, 69, Gittings vs. M'Dermott. 17 Eng. Law & Eq. Rep., 267, Jacobs vs. Jacobs.

3rd. As to the second clause of the will, by which the testator devises to Isabella Power an annuity of $ 30 for life, and then directs, "at her death it is to go back equal to my two children, William and Anne, or to [**20]  their surviving heirs," it is insisted, in addition to the points above stated, as applicable to the investment for the widow's annuity, which equally apply to the investment for this annuity, that, in any view, under this devise, with no such limitation over, as in the preceding one, William acquired title to the one-half of the subject of the devise, (whatever it was,) which passed to his devisee, the appellant.

4th. As to the third or residuary clause, it is insisted, that there is no error in that part of the decree below which distributed the surplus, because this devise, of the balance of his estate, gave to William a fee or absolute estate in half the residue; and that the same result would follow if this devise only gave a life-estate, or whatever its operation, as in that event, William, as one of the two heirs-at-law and distributee of his father's estate, would have taken the half of this residue, so far as it was undevised, and his will passed it to the appellant, his widow and devisee.

5th. But if the above views should not be sustained, it is then insisted, that the words of the first clause of this will are so repugnant that they cannot be reconciled, and afford [**21]  no clue to expound the uncertain meaning of the testator, and that it is, therefore, void for uncertainty, and this court cannot insert or transpose words for the purpose of giving a meaning to an instrument which has none. 2 Roper on Legacies, 1473 to 1474. 1 Jarman on Wills, 315, 316.

Thos. S. Alexander for Jenkins and his children insisted, that there is no such latent ambiguity on the face of this will as to make it void for uncertainty; and that the court, in construing the devise in favor of the widow of the testator, must consider that she is not a gratuitous, but a preferred legatee, for by the act of 1798, ch. 101, sub-ch. 13, sec. 5, she is a purchaser of the annuity thus given to her for a fair consideration; she takes as a creditor, and, therefore, has a charge on the realty for the payment of the annuity in her favor. 10 G. & J. 113, Gibson vs. McCormick. 2 Ves., Sen., 420, Blower vs. Morret. He then argued--

1st. That the testator, in the event of an election on the part of his widow to take the annuity of $ 1000, intended that a part of his estate, adequate to raise that income out of his rents or annual revenue, should be reserved and dedicated, during [**22]  her life, to the payment of her annuity as it should accrue, out of the annual income thereof. After her death this principal estate, with the accumulations thereof, was to be divided or distributed to his two children, if then living. If either child should die before the widow, leaving children, the division was to be between those children and the surviving child of the testator. If either died without heirs the whole was to go to the survivor. If both died leaving the widow and one only left children, (which is the actual event,) the whole was to go to those children. The limitation over, after the death of the widow, is contingent on that event, and the expression "heirs," in the limitation, is equivalent to children. The cases of Oldham vs. Slatter, 3 Simons, 84, and Clough vs. Wynne, 2 Madd., 439, are sufficient to show that the expression, "the amount of the above," in the devise over, denotes the principal estate out of which the annuity is to arise, and that the devise over passes this entire interest, unless a contrary intent is plainly expressed by the testator. Giving the interest of personalty, without limitation, passes the whole interest, unless there are words used [**23]  to confine it to a life interest, and by the act of 1825, ch. 119, devises of real estate, without words of perpetuity or limitation, pass the entire and absolute estate and interest of the testator, in such real estate, unless it appears, by devise over, or by words of limitation, or otherwise, that he intended to devise a less estate and interest. The vesting of the devise over to the children is postponed to the death of the life-tenant, that being the period at which the property is to be enjoyed by them, (3 Ves., 536, Mackell vs. Winter,) and the words of survivorship are to be referred to the period of division and enjoyment, unless there be special intent to the contrary. Such is the general rule announced by Sir John Leach in Cripps vs. Wolcott, et al., 4 Madd., 11. See also 8 Simons, 132, Gibbs vs. Tait. Here the will gives to the wife $ 1000 per year, during her natural life, and, at her death, the amount of the above is to go, in equal halves, to his two children, but should either of them not survive, then it is to go to their heirs, or to the surviving heirs of either, in case the other leaves none. The word "survive" is a relative term. To what does it relate? Whom or [**24]  what event are the children to survive? Is it not plain that the reference is to the wife to whom the testator had just given a life annuity, and to the event of her death which he had then just previously mentioned? This is clearly the plain and natural reading of this clause, and by so reading it, and postponing the period of the vesting of these devises, to the death of the wife, the whole will is made consistent with itself, and every word in it has a meaning and an operative effect. See also on this point 6 Taunt., 485, Hatch vs. Bluck; 5 G. & J. 97, 98, Hill vs. Hill.

2nd. That the annuity to the testator's sister was likewise intended to be charged on a part of the testator's estate, and the first devise of the will, making provision for the wife and children, operates on a sufficiency of the estate to provide for the payment of this annuity.

3rd. That the children, the parties interested, have determined the extent and particulars of the estate in which said devise is to operate, by their conveyance to Ann Power and Isabella Power mentioned in the proceedings. Subject, therefore, to the charge for payment of these annuities, the said mortgaged premises have become [**25]  the right of the children of Mrs. Jenkins, deceased. The decree is wrong, therefore, in so far as it directs that any surplus which may remain, after the investment of a sum sufficient to provide for the payment of the annuities to Ann Power and Isabella Power, shall be divided between Elizabeth Power, as devisee of William Power, and the children of Mrs. Jenkins.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*456]  BARTOL, J., delivered the opinion of this court.
The only question which it is necessary for us to determine on this appeal, is, what are the rights of the parties to the particular fund, upon which the decree of the Circuit court operates?
It appears from the record, that after the death of the testator, Ann Power, elected to take the annuity of one thousand dollars for her life, as provided by the will; and afterwards 

 [*457]  William Power with Thornton A. Jenkins and wife, united in a mortgage, conveying certain real estate of which the testator died seized, for the purpose of securing to said Ann Power and Isabella Power, the payment of the life annuities respectively given to them by the will. The bill in this [**26]  case was filed by said life annuitants, and Elizabeth Power the widow and sole devisee of William Power, and on the 22nd day of June 1854, the said real estate embraced in the mortgage, was decreed to be sold, and the fund now in controversy is the proceeds of said sale.
The decree or order from which this appeal was taken, was passed in said cause on the 17th day of September 1855, and, after directing the investment of so much of said fund, as will be sufficient to yield the annuities or yearly sums of one thousand dollars, and of thirty dollars to be paid over to said annuitants respectively, the said decree proceeds to adjudge and order that, on the death of the life annuitants, the principal of said investment shall be paid over to the child or children of Ann Jenkins, who may then be living; to the exclusion of the devisee and representative of William Power, (reserving however, for future decision, the rights of Thornton A. Jenkins, the husband of Ann Jenkins,) and that the surplus of the proceeds of sale, which shall remain after the investments are made, shall be paid, the one-half thereof to Elizabeth Power, and the one-half to the children of Ann Jenkins deceased. From [**27]  the latter part of the decree, awarding one-half of the surplus to Elizabeth Power, Jenkins and his children have appealed. But this appeal, we are clearly of opinion, cannot be sustained; for whatever may be the construction of the 2nd and 3rd clauses of the will, Elizabeth Power as devisee of William Power, would be entitled to one-half of said surplus under the residuary clause.
Mrs. Elizabeth Power has appealed from that part of the decree which awards to the child or children of Ann Jenkins, after the life annuities shall cease, the principal of the fund invested; and in our opinion that part of the decree is erroneous, and must be reversed.
In the view we have taken of this case, the right to that 

 [*458]  fund, does not in any manner depend upon the construction of the words of the second and third clauses of the will, which dispose of the sums given to Ann Power and Isabella Power, after the death of the annuitants. The bequests in the will to Ann and Isabella, are pecuniary legacies, which are not, either by the terms of the will, or by operation of law, chargeable upon the real estate. See Stevens vs. Gregg, 10 G. & J. 143. Cornish vs. Willson, 6 Gill 299. [**28]  
Even if it were admitted, without however meaning to decide that question, that Ann Power, the widow, might by reason of her rights under the act of Assembly, as "purchaser with a fair consideration," be entitled to charge her annuity upon the realty, that right could not be claimed by the other life annuitant, nor by the parties to whom the annuities are given, after the death of the life annuitants.
They are mere pecuniary legatees, who can no more charge the realty with the payment of their legacies, than could Isabella the annuitant for life do so, independently of the mortgage.
By the residuary clause of the will, the real estate which has been sold, was vested in fee in William Power and Ann Jenkins. The mortgage, by its terms and legal effect, created a lien upon the estate conveyed, only in favor of the mortgagees, Ann and Isabella, and to secure to them the payment of the two annuities for life given to them by the will. When they shall have been paid, the whole purpose of the mortgage will be gratified. Whoever may be entitled to the legacies after the death of the life annuitants, cannot claim to subject the lands mortgaged, to the payment of their legacies. This would [**29]  be giving an effect to the mortgage not warranted by its terms, or contemplated by the parties to it. After its execution the equity of redemption remained in the mortgagors, and, upon the payment of the sums secured to Ann and Isabella, the property mortgaged would revert to the mortgagors, as if no such mortgage had been made; and, as a consequence, the proceeds of the sale, subject only to the claim of the life annuitants, remain the property of the mortgagors, the one-half thereof belonging to the children of Ann Jenkins, subject 

 [*459]  to the curtesy rights of her husband Thornton A. Jenkins; and the other half to Elizabeth Power, widow and sole devisee of William Power deceased; and the cause will be remanded, so that a decree may be passed in accordance with the opinion of this court.
Decree reversed and cause remanded. 

172 of 196 DOCUMENTS 

ELIZABETH COOKE'S LESSEE vs. MARY ANN KELL and Others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

13 Md. 469; 1859 Md. LEXIS 41 

May 31, 1859, Decided 

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

Ejectment for a lot of ground, forty-one feet front and one hundred and fifty-nine deep, on York street, in the city of Baltimore, being lot No. 17, and part of "Todd's Range," brought on the 29th of August 1850, by the appellant against the appellees. Plea Non Cul.

Exception. The plaintiff proved, that Joseph Bankson, then of the city of Baltimore, was, on the 14th of May 1792, the owner in fee of the lot in question, and on that day executed the following deed therefor, which was, on the same day, duly recorded, in the land records of Baltimore county.

By this deed Joseph Bankson, the grantor, in consideration of natural love and affection, and of five shillings, current money, conveyed the property to his three children, Harriet Giles Bankson, Joseph Bankson and Elizabeth Bankson, and their heirs, as tenants in common; reserving, however, the use and occupation of the property to himself and his wife, Hetty Bankson, for and during their natural life or lives, in case the wife should survive, and no longer, and from and after the decease of the grantor and his wife, then the property to revert to and become the sole [**2]  property of the said children, the grantees, and their heirs, as tenants in common.

The plaintiff further proved, that Joseph Bankson, the grantor in this deed, died in the city of Philadelphia about the year 1806, and his widow, Hetty Bankson, survived him and died in 1843; that Elizabeth Cooke, the lessor of the plaintiff, is the same person as Elizabeth Bankson, one of the grantees in the above deed, having intermarried with a certain John S. Cooke, who is now dead, or believed to be so; that the other grantees, mentioned in this deed, both died intestate and without issue, the one about the year 1800, and the other about the year 1812; that these three were all the children the said Joseph Bankson had at the date of this deed, but he afterwards had five others, some of whom died intestate and without issue, and some are now living.

The defendants then proved, that the lot in question remained in possession of Joseph Bankson after the deed of May 14th, 1792, until the 17th of February 1795, and that on that day he duly executed, and for a full and valuable consideration, a conveyance of the same to Daniel Diffenderffer, the wife of said Bankson, to whom a life estate had [**3]  been reserved by the deed of the 14th of May 1792, relinquishing, in due form of law, her dower in the same; that Diffenderffer at once took possession of the lot and improved it by building thereon a valuable brick dwelling house, in which he continued to reside, claiming title to the same under said deed of 1795, until his death, about the year 1809 or 1810; that Diffenderffer, by his last will, duly executed, devised the lot to his wife, Elizabeth Diffenderffer, who continued in possession thereof from her husband's death until her death, in 1832 or 1833, after which the same was sold by a trustee appointed for that purpose, and that the title of Diffenderffer and wife, by legally executed and acknowledged mesne conveyances, and lastly, by a deed from Henry Dorsey, became vested in Thomas Kell, who paid for the same a valuable and full consideration, viz: $ 7000, and remained in possession of the same from 1833 to his death, in 1846, and the defendants, who are his widow and child and heirs at law, after him till this time.

The defendants also further proved, by A. W. Thompson, a conveyancer, that he had examined the land records of Baltimore county, from 1759 to 1792, and [**4]  that he found, that Joseph Bankson, the grantor in the deed of the 14th of May 1792, had, before that date, been the owner of other real estate, but had, at different periods, parted with the same, and did not appear by the said land records to be, at the date of said deed, the owner of any other real or leasehold estate than that conveyed thereby. They also gave in evidence, that said Bankson seemed to be a needy man, and then produced the deposition of Mrs. Howser, taken by consent, who deposed, that she was about seventy-five years of age; that she knew Joseph Bankson, deceased, by sight,--lived two squares from him,--when she knew him he lived in a two-story frame house, situated upon the lot once owned by Daniel Diffenderffer and afterwards by Thomas Kell; that from his appearance, when she last knew him, he was getting pretty low in the world; that before that time she always heard he had been very well off, but that it was about the time that he left the place where he lived, as before stated, that he was getting to be reduced in circumstances; deponent was about fourteen years old at the time of which she speaks, when she last knew said Bankson; she formed her judgment of his [**5]  being in reduced circumstances from the appearance of himself and family; he had three children, when she knew him, and when he moved away, two boys and a girl; deponent was married when she was about eighteen years of age, and Bankson had moved away long before, but precisely when she does not know; he was a man of good character as far as she knew; she did not know of any indebtedness of his, or that he was indebted at all; she did not know whether he owned the house or not, and knew nothing about his property.

Lloyd Bankson, a son of the said Joseph Bankson, and a witness for the plaintiff, on cross-examination said: "I do not know when my father first came into possession of the property mentioned in the deed of 1792. To the best of my recollection, I first heard of its having belonged to my father in 1814; I do not remember of hearing that my father had sold the property, but only of hearing that Diffenderffer, or some other party was in possession illegally. This I first heard about the year 1814. I do not remember of hearing of the deed of 1792, until a few years ago, when it was brought to my notice. Before that, I heard that some person was illegally in possession of [**6]  our property. This I heard as far back as 1814. I have no knowledge of any measures taken by any of the children of Joseph Bankson, to notify Diffenderffer of their claim under the deed of 1792, except that John P. Bankson, in 1814, as I then heard, had employed Mr. Williams, a lawyer of Baltimore, to bring suit for us. Joseph Bankson lived in Philadelphia, from four to six years previously to his death. He had lived previously in Maryland. I have heard of his living in Kent county. He also lived in Baltimore. I don't know when he went to Kent county, or how long he lived there. At the time of his death, he was, as I have heard, a white smith, and was about to commence the hardware business. He left no property to my knowledge. He made no will to my knowledge. There was no administration on his estate to my knowledge."

The plaintiff then, on the whole evidence, asked an instruction to the jury in substance as follows:

That by the deed of the 14th of May 1792, Joseph Bankson conveyed to grantees therein named, the property therein described, in fee, subject to the life estate in and to the same, of the grantor and his wife and of the survivor of them, and if the jury find [**7]  from the evidence, that said Joseph Bankson died in 1806, and his widow in 1843, that the right of action to recover possession of said lot of ground, thereupon first accrued to the grantees in said deed named, and their representatives, and that the deed of 1795, from said Bankson to Diffenderffer, was not sufficient to avoid said conveyance of 1792, although they may find, that the said deed of 1795, was for full value, and that of 1792, voluntary, and for no other consideration than that stated therein, provided the jury shall further find, that said last mentioned deed was duly acknowledged and recorded in the records of Baltimore county court, on the 14th of May 1792.

The defendants then, on the same evidence, asked two instructions to the jury, in substance as follows:

1st. If the jury find, that the deed from Joseph Bankson, of the 14th of May 1792, was a voluntary conveyance, and for no other consideration than that stated in it, that then the sale by him in 1795, of the same property to Diffenderffer, and the execution of the deed therefor to Diffenderffer, of the 17th of February 1795, if the jury shall find such sale and deed, and that the same was for a valuable [**8]  consideration, and without actual notice by Diffenderffer of said deed of the 14th of May 1792, is presumptive evidence, that said deed of the 14th of May 1792, was fraudulent and void.

2nd. If the jury shall find, that the said deed of the 14th of May 1792, was only for the consideration therein stated, and shall also find that the grantor, Bankson, had antecedently thereto conveyed away all his other property, and was at the time of the execution of said deed of the 14th of May 1792, the owner and possessor of no other property, and if they shall find, that his wife, who had a life estate under that deed, joined by a relinquishment of dower in the deed to Diffenderffer, of the 17th of February 1795, with knowledge that the same conveyed the title to the grantee, and that she lived till 1843, and that the three children, the grantees in said deed of 1792, were then infants and unable to maintain themselves, and that said Bankson never had any property afterwards, other than the purchase money received from Diffenderffer, from the said sale to him of said lot, or what he may have procured by means thereof, and that neither said Bankson, nor his wife, or any one else, ever communicated [**9]  to Diffenderffer the existence of said deed of 1792, and that neither he (Diffenderffer) nor Thomas Kell, under whom the defendants claim, ever had actual knowledge of the same until long after the deed to said Kell by Henry Dorsey, of 1833, offered in evidence by the defendants, (if the jury find such deed, and that the same was for full value,) and the jury shall also find, that said Diffenderffer, and those claiming under him, held said property from 1795 to the present time, adversarily under said deed to Diffenderffer of 1795, and that said Cooke never did set up title to the same under the said deed of 1792, that then the jury may find that said deed of the 14th of May 1792, was not bona fide but fraudulent and void.

The court (FRICK J.,) refused the plaintiff's prayer, and granted those of the defendant. To this ruling the plaintiff excepted, and the verdict and judgment being in favor of the defendant, appealed.

Note. By agreement of counsel the exception was signed by Judge Lee, and the appeal was taken in the same manner as if the exception had been regularly signed and sealed before the jury was discharged, by Judge Frick, before whom the case was tried.  

DISPOSITION:
Judgment [**10]  reversed and procedendo awarded.  

HEADNOTES:

By the English construction of the Statute of 27th Elizabeth, the mere execution of a voluntary deed raises a conclusive presumption of fraud, as against subsequent purchasers for value.

By the American construction of this statute, a subsequent sale, without notice, is presumptive evidence of fraud, which throws on those claiming under the voluntary deed the onus of proving, that it was made bona fide.

But when the subsequent purchaser has notice of the prior voluntary deed, no such presumption of fraud arises, and such notice need not be actual.

Constructive notice, furnished by the recording of a voluntary deed, under the registry laws of this State, is sufficient to bind subsequent purchasers, in the absence of actual fraud.

The registry laws of this State were designed to, and do, give notice to all the world, so that there may be no deceit practiced upon any one; if they have not this effect they are of no use whatever, for without registration deeds are binding inter partes.

An instruction to the jury, "That, by the deed of 1792, the grantor conveyed to the grantees, therein named, the property therein described," &c., is defective in assuming the existence of the deed of 1792.

Facts sufficient to authorize the jury to find therefrom, that a voluntary conveyance was not bona fide, but fraudulent and void, must amount to some pointed evidence of actual fraud in its execution; such evidence is necessary in order to establish fraud in fact. 

COUNSEL:
John P. Poe for the appellant.

The questions arising in this case depend, for solution, upon the construction and effect of the statute of 27 Eliz., entitled, "An act against covinous and fraudulent conveyances," under the system of registering deeds which prevails in this State. For the appellant it is contended:--

1st. That this statute does not condemn voluntary conveyances as against subsequent purchasers for value, merely because they are voluntary, but only condemns such as are fraudulent and covinous. 6 Md. 235, Mayor & C. C. of Balto. vs. Williams.

2nd. If a subsequent purchaser for value has notice of the existence of a prior voluntary deed, his deed cannot take precedence over the voluntary one, unless there be fraud in fact, in the latter, which the law never presumes, but which must be proved. 6 Md. 235. 4 McCord, 294, Hudnal vs. Wilder. 22 Eng. Law & Eq. Rep., 20, Mill vs. Hill. 1 Robinson, 500, 540, Bank of Alexandria vs. Patton. 5 Pet., 280, Cathcart vs. Robinson. 14 Mass., 137, Ricker vs. Ham. 18 Pick., 131, Clapp vs. Leatherbee. 3 Wend., 411, Wadsworth vs. Havens. 5 Watts, 378, Foster vs. Walton.

3rd.  [**11]  The notice to the subsequent purchaser, which will postpone his deed, may be either actual or constructive, and the due recording of the prior voluntary deed is constructive notice of its existence to all the world, and in such cases, in the absence of actual fraud proved, the common law maxim of caveat emptor must be rigidly applied. Such was the express decision of Chief Justice Le Grand in the case of Mayor & C. C. of Balto. vs. Williams, 6 Md. 243, when deciding that case in the court below, and though the Court of Appeals decided that there was actual notice, they did not dissent from the decision below, that constructive notice, furnished by the recording of the prior voluntary conveyance, would have been sufficient. In Williams vs. Banks, 11 Md. 250, the court said, that if the decision of the prior case, in 6 Md. 235, had required it, they would have fully sustained the decision of Chief Justice Le Grand. It also appears, from the case of Warren vs. Richardson, cited by the Reporter, in a note, in 6 Md. 272, that the same question was decided by the former Court of Appeals in 1837. In Mill vs. Hill, 22 Eng. Law & Eq. Rep., 20, it was held under the Irish Registration [**12]  Act, that an equity in a grant, which is registered, will prevail against the right, even of a bona fide purchaser, to whom the original grantor had subsequently sold part of the property comprised in the registered deed. The same question has been expressly decided by the courts of other States where registry laws are in force. The case of Beal vs. Warren, 2 Gray, 447, is directly in point. See also 1 Rawle, 246, Lancaster vs. Dolan. 5 Watts, 456, Dougherty vs. Jack. 15 Penn. State Rep., 260, Salter vs. Reed. 23 Penn. State Rep., 440, Wilson vs. McCullough. 6 Barb., 382, Schutt vs. Large. 11 Foster, 38, Jewell vs. Porter, et al. 24 Maine, 29, Tilton vs. Hunter. 6 Pick., 86, Shaw vs. Poor. 1 McLean, 520, Schults vs. Moore. 17 Ohio, 226, Irvin vs. Smith. 15 Illinois, 540, Rupert vs. Mark. 1 McCord, 231, Hudnal vs. Teasdall. 3 Rich. Eq. Rep., 41, Footman vs. Pendergrass. 8 Ala., 866, Ohio Life Ins. Co. vs. Ledyard, et al. 3 Md. Ch. Dec., 57, Johns. vs. Reardon, and same case affirmed in 5 Md. 81. Coke Litt., (Title Releases,) sec. 504, note 1.

4th. In the case now under consideration, the prior voluntary conveyance, of May 14th, 1792, was duly executed, acknowledged and recorded,  [**13]  open to the inspection of every one. The subsequent purchaser could, by the exercise of ordinary care, diligence and understanding, have discovered that his grantor had nothing more than a life-estate in the property which he was attempting to convey; and if, on the one hand, with the means of information, provided by law, before him, he neglected to use them, or, on the other hand, availing himself of them, he discovered nothing against the property in controversy, but the voluntary deed, which he undertook to disregard, he, and those claiming under him, must bear the consequences of their ignorance of fact or mistake of law. There is nothing in the record, worthy of the name of evidence, proving, or tending to prove, actual fraud on the part of the grantor against creditors; no indebtedness, no judgments, no decree, no insolvency; on the contrary, the fact of his reserving a life-estate in the property conveyed, which was liable, at any moment, to execution, at the suit of creditors, conclusively rebuts the idea, that he intended to commit any fraud against them. Nor is there the least evidence to show a specific intent of defrauding subsequent purchasers for value. If, then, I am [**14]  right in my views, that the notice afforded by registration is sufficient to bind subsequent purchasers, (of which, under the decisions of this court, and of the courts of other States already cited, there can be no question,) which constructive notice can only be done away by proof of actual fraud, and if there be in this case no evidence of a specific intent to defraud subsequent purchasers, (of which there is no pretence, the testimony produced by the defendants being offered merely with a view of showing that the grantor, Bankson, "seemed to be a needy man," at the date of the voluntary deed,) it follows, that the first and second instructions of the court below were erroneous and should be corrected. 5 Watts, 378, Foster vs. Walton. 10 Ohio, 162, Douglas vs. Dunlap. 19 Wend., 514, Sanger vs. Eastwood. 1 Robinson, 499, Bank of Alexandria vs. Patton. Roberts on Fraud. Con., 52.

5th. The second prayer offered by the defendants, and granted by the court below, is also defective, not only because it states, in a somewhat different form, the proposition of law contained in the first prayer, which has been shown to be erroneous, but also because it groups together facts of which [**15]  there is no evidence at all, asks the instruction of the court upon their effect, and thereby tends to mislead the jury. 6 Md. 28, Pierce, et al., vs. Negro John. Ibid., 88, Preston vs. Leighton. 3 Gill 220, Budd vs. Brooke. 1 Gill 127, Whiteford vs. Burckmyer & Adams.

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

1st. That the deed of May 1792 being purely voluntary, the fact of Bankson's subsequent sale of the same property to Diffenderffer, for full value and without actual notice to him, is presumptive evidence that the deed was fraudulent and void, and upon the appellant rests the onus of rebutting this presumption, which he fails to do; and all the circumstances attending the execution of that deed, strengthen the legal presumption against its validity.

It is admitted, that under the construction adopted, both as to the statutes of 13th and 27th Elizabeth, mere voluntariness is not as now in England, conclusive evidence of fraud vitiating the conveyances referred to in those statutes. The statutes were designed to prevent fraud and its consequences, either as to creditors or subsequent purchasers. If we look to the object of [**16]  the statute of 27th Elizabeth, we find that its purpose was to strike at and prevent the fraud of the grantor, no matter what effect the attainment of this object may have upon the voluntary grantee; it was the grantor's guilt and fraud that was to be prevented, and the construction given by the English courts, is better calculated to carry out the purpose of the Legislature, and seems to be the only one of which the language of the statute will admit, (79 Eng. C. L. Rep., 724, Newman vs. Rusham; 9 East., 59, Doe vs. Manning;) but the American ruling is otherwise. The English rule says, the subsequent conveyance is conclusive evidence of fraud, whilst the American cases say, it is only presumptive evidence of fraud; that is, that the mere fact of a subsequent sale throws a presumption of fraud retroactively, upon the voluntary deed, which a party claiming under it must clear up before his title can prevail. This must be the operation of the statute here, if any effect at all is to be accorded to it. Accordingly, in Cathcart vs. Robinson, 5 Pet., 264, the Supreme Court, after having restricted the present English construction, declare, "that a subsequent sale, without notice, is presumptive [**17]  evidence of fraud, throwing upon those claiming under the voluntary deed the onus of proving it was bona fide," and such is now the generally received doctrine in the different States, (1 Am. Lead. Cases, by Hare & Wallace, 67, notes to Sexton vs. Wheaton,) and the construction given in Cathcart vs. Robinson, has been expressly adopted in this State, and by this court in Mayor & C. C. of Balto., vs. Williams, 6 Md. 235.

Now this onus being on the grantees under the voluntary deed, by what means can they rebut this presumption, but by showing to the court and jury a state of things, at the date of their deed, which would render it extremely improbable the grantor could, at that time, have had in view any fraudulent purpose, as by showing him to have been in affluent circumstances, and disposing voluntarily of such property as would not embarrass him, and such other general facts as in the case of creditors would sustain a deed of this character? 5 G. & J. 432, Birely vs. Staley. 5 Gill 449, Worthington vs. Shipley. 11 Md. 198, Williams vs. Banks. If they fail in this, and the facts, as in the present case, show absolute insolvency of the grantor at the time, continuing [**18]  so up to the date of the deed to us, and after, with a life estate reserved to himself, he remaining in possession, and so shortly after disposing of the same property to an innocent party for full value, without intimating the existence of the prior deed, then the presumption of law controls the voluntary deed, as effectually as established fraud in fact would, (12 Johns., 536, Verplank vs. Sterry,) and the innocence of the grantees in the voluntary deed makes no difference. 7 Cowen, 301, Jackson vs. Mather. 9 Missouri, 606, Gamble vs. Johnston.

2nd. Where a purely voluntary deed, such as that of 1792, is made, and the grantor is shown to be in very embarrassed circumstances, and by that deed conveys away his last piece of property, reserving to himself a life estate and remaining in possession, a jury may find under these and all the circumstances stated in the defendants' second prayer, that such voluntary conveyance is, as to subsequent purchasers from the grantor for full value, and without actual notice of the antecedent deed, not bona fide, but fraudulent and void. Even conceding that the statutes of 13th and 27th Elizabeth were merely in affirmance of the common law, the [**19]  only result would be, that under both the common law and the statutes, actual fraud might be established, not only by positive and direct evidence, but by presumption, and circumstances strongly indicating that such an intention entered into the execution of the deed. In other words, that in all such cases the inquiry is one of intent, to be submitted to a jury on such evidence as the nature of the case admits of. Cowp., 434, Cadogan vs. Kennett. 1 Cranch., 309, Hamilton vs. Russell.

The defendants' second prayer granted by the court below, asks, that if the jury find the facts therein set out, they may find that the deed of 1792 was fraudulent and void; that is, that actual fraud entered into that transaction, which, by the verdict, they do find. There is surely no error in that instruction, and the defect lies in the plaintiff's prayer, which takes from the jury any question of fraud in fact; it does not ask, that the jury be instructed there was no evidence of fraud, and must, therefore, assume, that even though the jury should find fraud in fact, the deed to the plaintiff would be valid against the subsequent purchaser. 2 Gill 439, Richardson vs. The State.

The subsequent [**20]  sale and conveyance makes out presumptive fraud, and if this cause stood alone upon the deeds of 1792 and 1795, the judgment must be affirmed. What else is there in the case? Nothing but the fact of the registration of the prior voluntary deed, and as to this it is insisted:

3rd. That if registration is implied notice of the antecedent deed, yet it only brings notice of the deed such as the law regards it, and such a deed, under the circumstances above mentioned, would be presumptively inoperative as to a bona fide subsequent purchaser for value, and, until rebutted, the legal presumption is equivalent to an ascertained fact. 2 B. Monroe, 345, Lewis vs. Love.

The settled law of this State is, that registration brings implied notice of a pre-existing deed to all persons. But the mere fact of recording does not, of course, give to the conveyance any legal operation, which but for that it would not have, (5 Md. 81, Johns vs. Scott, et al.,) the effect of the deed, and its sufficiency to convey what it purports to convey, are questions still open to inquiry, though the paper be recorded. If, therefore, the appellees were constructively notified of the prior deed of 1792,  [**21]  it was only notice of a conveyance to which the law imputed a fraudulent character, and until such imputation is removed, they are no more affected than if notified at the time of their purchase, of a prior deed steeped in actual fraud; both are, as to them, inoperative, the one in any event, and the other until the presumption attaching to it is rebutted by the appellant.

Whatever may have been the uncertainty prevailing in the English courts, before our Revolution, as to the true construction of the statute itself, in its operation upon voluntary deeds, it was perfectly understood, that notice of the existence of such a deed subjected the purchaser to no other consequences than such as would result from the prior deed itself, (5 Coke, 60, Cowp., 278, Chapman vs. Emery,) and conceding, that the American doctrine does not go to the extent of the present English rule, it does, according to the decisions of Cathcart vs. Robinson and Mayor & C. C. of Balto. vs. Williams, impute a fraudulent character to the deed, which devolves upon those claiming under it the duty of establishing its bona fides, which, in this case, they have not done. That we had no actual notice is conceded, does [**22]  then the constructive notice, by registration, affect Diffenderffer's title? The doctrine in Cathcart vs. Robinson is laid down in the face of the fact there appearing, (and this court, in Mayor & C. C. of Balto. vs. Williams, have adopted that decision based upon the facts of that case,) that the voluntary deed to Woodside was duly recorded, yet that deed was not allowed the operation now contended for, evidently on the ground, that actual notice was required to affect Cathcart, who was misled by the dealings of the defendants and other parties claiming under the prior deed, just as in this case we were misled by the action of Bankson and wife joining in the subsequent deed, both having knowledge of the voluntary conveyance without intimating its existence.

Whether the implied notice, assumed by the registry acts, is to affect the title of a subsequent purchaser, in cases like this, is still an open question in this State. In Mayor & C. C. of Balto. vs. Williams, though passed upon by Chief Justice Le Grand, while presiding in the lower court, this court, in affirming the ruling in the particular case expressly waive any decision upon that point, because the case did not necessarily [**23]  present it; the notice to Banks, the subsequent purchaser there, being equivalent to actual notice, and was so argued by counsel and so held by the court. The case of Williams vs. Banks, 11 Md. 198, did not present the question as applicable to this case, for that related to the Statute of 13 Elizabeth, as to creditors, and it being held, that subsequent creditors had no right to impeach the voluntary deed, imputing knowledge to them, of any kind, notified them of a deed in every respect valid as to them. The case of Warren vs. Richardson, decided in 1837, by the Court of Appeals for the Eastern Shore, and set out in a note by the Reporter in 6 Md. 272, will, upon examination, be found, not to present the principles which the Reporter thinks are to be deduced from it. There are no reasons assigned by the court for reversing the judgment below, and the only means we have of ascertaining the actual points involved are, by the prayers in the lower court and the argument above. The defendants below, who claimed under the title of a subsequent purchaser, prayed an instruction, that the mere fact of the prior deed being voluntary, rendered it fraudulent and void as to a subsequent [**24]  purchaser, and that the jury ought to find for the defendants; that is, that the present English rule, as laid down in Doe vs. Manning, prevailed in this State. In the argument above, the defendants' counsel expressly rely upon that and similar authorities to support the prayer. The plaintiffs below, on the other hand, contended for the doctrine laid down in Cathcart vs. Robinson, upon which case, in the argument, he relied. The court below granted the defendants' prayer, making the mere fact of the deed being voluntary a conclusive badge of fraud, which, of course, shut out the plaintiff from producing any evidence to rebut it. Now the Court of Appeals simply reverse that ruling and award a procedendo. The only question therefore necessarily involved was, what, in Maryland, was the true construction to be given, in this respect, to the statute? It would seem therefore, that the only operation of the action of the appellate court was to overrule the English doctrine and adopt that laid down in Cathcart vs. Robinson and the current of American cases. Non constat, but that upon the procedendo, the point we are now considering, was raised and mooted as an open question in this State.  [**25]  The second inference therefore, drawn by the Reporter, from this case, we think clearly erroneous.

By holding that registration simply is notice sufficient to prevent the calling in question of the prior deed, you arm a fraudulent vendor with power greater than he would otherwise have, and such cannot be the effect of the registry laws. Their object was to protect fair, and not fraudulent titles. The subsequent purchaser, with notice, is not allowed to impeach the prior deed, because it would enable him to perpetrate a fraud on the voluntary grantee. This position rests upon the enlarged doctrine of equity, that where two innocent parties are to suffer, the loss must fall on him who could most easily have prevented it, who, in such a case, is the subsequent purchaser, for he was not bound to buy. But the notice which is to affect his conscience, and thus make it fraudulent in him to purchase, must be actual notice, and not that constructive notice which is afforded by the mere registration of the prior deed. So it was expressly decided in Fleming vs. Townsend, 6 Geo., 103, and this position is sustained by the authorities there cited, at page 112, viz: 1 Sch. & Lef., 90, Bushel [**26]  vs. Bushel. Ibid., 137, Latouche vs. Lord Dunsany. 2 Sch. & Lef., 66, Underwood vs. Lord Courtown. 2 Ball & Beatty, 68, Pentland vs. Stokes. 1 Younge & Jervis, 117, Wiseman vs. Westland. 2 Johns. Ch. Rep., 190, Dey vs. Dunham. 4 Kent, 462, 463. The cases cited on the other side, from Pennsylvania, cannot apply here, for the registry laws of that State declare a deed fraudulent and void against a subsequent purchaser or mortgagee, unless recorded, the converse of which is, that the subsequent purchaser is bound, if the deed is recorded, whereas, in our registry acts there is no such provision, the only penalty here being, that no title passes, unless the deed is recorded.

4th. Such being the construction given the statute of 27th Elizabeth, by decisions of this State, which, of course, assume that the statute is an existing law with us, the court can give no greater effect to constructive notice, by registration, without virtually deciding that the registration acts and the statute cannot stand together on the statute book. It is, and must be admitted, that all English statutes in operation at the date of our Revolution were, so far as applicable, adopted into the State law. At [**27]  the period referred to numerous acts providing for registration had been passed by the Colonial Legislature, (see acts of 1715, ch. 47, 1766, ch. 14,) and doubtless others between that period and the report of Mr. Kilty on the statutes in 1810, which is settled authority with us as to what statutes were incorporated. 5 H. & J. 392, Dashiell vs. The Attorney General. By that report, page 235, we have the statute of 27th Elizabeth expressly adopted. Mr. Kilty says, there can be no doubt about its adoption, and it is, therefore, brought upon the statute book just as special legislation to a similar effect would be, and that in the face of numerous registration acts then existing. The Legislature must have intended that the statute was to have some effect. It could not be assumed to have legislated upon a subject utterly inconsistent with existing laws, and these laws not pretended to be repealed; and as no subsequent registration acts expressly repeal the adopted statute, will the courts, in the face of obvious legislative intent, construe a repeal where the respective laws are not necessarily inconsistent or repugnant? The general principle is, that even where two statutes appear [**28]  to clash, if, by interpretation, they may stand together, operation will be given to both, (4 G. & J. 1, Canal Co. vs. Rail Road Co; 1 Gill 203, Beall vs. Black; 4 How., 51, 53, Beals vs. Hale; 1 Black. Com., 89;) and in 16 Pet., 342, Wood vs. The United States, the Supreme Court say, there must be positive repugnancy between the new law and the old to work a repeal. Is that the case here? The registration acts, collectively, serve a vast variety of purposes;--the statute of 27th Elizabeth covers a particular case; and judicial decisions having determined the effect of a deed contemplated by the statute, do not the registration laws subserve their full purpose in merely bringing to a party knowledge of a deed affected by the provisions of that statute? But if the appellant's view be correct, then the fact of such a deed being on record clears it of all presumptions and questions arising under the statute, and necessarily annuls that act.

The principal point in the argument, by which it is attempted to be maintained that the statute is not in force in Maryland, is founded upon the assumption, that the voluntary deed being upon record, no injury can result therefrom to the [**29]  subsequent purchaser, unless from his own laches. Now, if the the chief purpose of that statute was, to save the purchaser from loss or injury by reason of the previous voluntary deed, we might admit some force in such an argument, but such is not the case; that statute has reference, not to the acts or conduct of the grantee, but to the fraudulent purpose of the grantor, and the object and intent of the statute is not so much to protect the interest of the grantee, as to prohibit and punish such fraudulent attempts on the part of the grantor. That such is the chief purpose of the statute, and such the construction which it has always received in England, is manifest from the uniform tenor of the reasoning of their decisions. Hence, to say that a prudent purchaser has no right to complain of a previous voluntary deed, because he ought to have been aware of it, is no answer to the reason upon which the statute is founded, or to its purpose and object. Suppose that a registration law, similar to our own, existed in England, or in any part of that kingdom, can any one suppose that the statute would be there held to be inapplicable to that part of the realm, by reason of such registration?  [**30]  To hold that it could possibly receive such a construction, would be to impute to their tribunals, the inconsistency of nullifying the statute in case of constructive notice, whilst they hold that even with actual notice, the voluntary deed, followed by a subsequent sale for value, is conclusive evidence of fraud. Hence, we find their decisions, in respect to the effect of registration, under such acts, consistent. 9 Irish Eq. Rep., 171, Drew vs. Lord Norbury. 1 Cox, 182, Caton vs. Cooley. 1 Younge & Jervis, 117, Wiseman vs. Westland. We hold, therefore, that we must bear in mind the object of this statute--to discourage such frauds--and so construe and so apply it as to promote that object.

How does the existence of a registry law take away the motive for the perpetration of such frauds? That it increases the chances of detection we may well admit, but still, if the fraudulent grantor can elude detection, once abrogate the statute and he is safe, and his fraudulent purpose accomplished beyond all fear of consequences. Once let it be understood that there is no law in force, in Maryland, prohibiting such frauds, and we absolutely invite the attempts to commit them. What was done [**31]  by Bankson in 1792, will be attempted--it may not be with the same success--but still attempted by many others in our day, and no case can be put, better calculated to illustrate the point, or to deceive the confiding purchaser, than this very case. The man designing to commit such a fraud will argue with himself somewhat to this effect:

I will convey my property to my infant children. I will take care to reserve to myself and wife a life interest. I will, at some time afterwards, quietly put my deed on record--will say nothing about it, will continue for years afterwards to retain possession, and exercise in the view of the world every ostensible act of ownership. By and by, my neighbor offers me a full price for it, and I agree to take it. I incur no risk in so doing; if he finds out that I have made such deed before he pays the price, there is no harm done, no penalty awaits me--I have still my land and am of course no worse off--but if, on the other hand, confiding in my common honesty, knowing of my long continued possession and acts of ownership up to the very day when I agree to sell it to him, having satisfied himself that there are no incumbrances, properly so called--say [**32]  judgments or mortgages--affecting the property, and warranted as he might well feel himself in supposing, that if I had sold, or conveyed to another at any time long antecedent, I would not still retain the possession--if confiding in these circumstances, which many might without undue credulity, he pays the money--why I will make him a deed--my wife shall unite and relinquish her dower--I will put him in possession--and wait for long years to elapse--wait until he has expended thousands in costly improvements--wait until every fact and circumstance which might by possibility have exposed my nefarious design has faded from the memory of men, and then I will step in, claim my life estate--or if, vile as I am, I have not the face to set up myself such a demand--I will at my death pass the word to my children, the grantees in the deed, and they shall reap the rich rewards of my fraud in the costly improvements of my ruined dupe.

Can it be possible, that we are prepared to repudiate a statute the objects and effect of which is to close the door upon such unrighteous attempts? Is it an answer to the encouragement which that repudiation would furnish to such designs, to say to the innocent [**33]  party against whom they have been consummated--it is but just that you should lose the thousands you have expended upon this property, and the authors of the fraud should gain them, as a proper punishment for your credulity or your neglect. Is it not saying in effect, that it is the policy of the law rather to punish such credulity or neglect than such a fraud? But on the other hand who can possibly suffer harm if we allow the statute to apply, registry or no registry. Construing it, as the defendants' prayer assumes, not as conclusive but presumptive evidence of the fraud--does not a sale, under such circumstances, in sound reason, as well as established decisions, warrant such a presumption--and if there are circumstances to rebut it, is it not sufficient that you allow him to whom it is imputed the opportunity to do so? 17 Wend., 462, Wood vs. Long.

In the case of Warren vs. Richardson, there is nothing tending to show that the statute was not in force here, the contrary is the inference, from all we can gather from the report, when the counsel who maintained the validity of the deed, actually assumed the existence of the statute, and argued merely, as we do here, that it operated [**34]  as presumptive and not conclusive evidence of a fraudulent intent.

If, therefore, we can find no express decision in our courts affirming in so many words the existence of that statute in Maryland, it is not so much because the case has never occurred where the question presented itself, as because both bench and bar seem always to have assumed that its existence was beyond all doubt.

Judge Dorsey, in the case of Bohn vs. Headley, 7 H. & J. 257, evidently acted upon the same undoubting assumption, when he decided, as he there did, that the statute was not applicable in that case; not because the statute itself was not in force in Maryland, but because it did not embrace personal property, which was the subject matter of the suit then before him. In fact, it is not assuming too much to say, that ever since the publication of Kilty's Reports of the statutes, the whole legal profession of the State have acted on this assumption,--and had Diffenderffer, the grantee under Bankson's deed, discovered accidently after his purchase the existence of the previous voluntary conveyance, and taken counsel on the subject, we hazard nothing in saying, that among all the eminent men who,  [**35]  fifty years ago, adorned the bar of Maryland, there was not one who would have hesitated to advise him that his title was completely protected by the operation of the Statute of Elizabeth.

There are, no doubt, hundreds of other titles in Maryland similarly situated, which, upon the assumption of the existence of that statute have never been questioned, and never ought to be questioned; but many of which, if a different construction is now for the first time given to the law, will find their way into the courts, and the property which they were supposed to guarantee be wrested from the rightful owners. How little reliance can be placed upon a long adversary possession to prevent such a result, this case clearly demonstrates, where half a century and upwards of such possession has been insufficient for the purpose. It is a question, therefore, of the gravest consideration, how far it becomes us to disturb a rule of property, which, in the uniform estimation of the profession, has been considered of acknowledged applicability. And however we may occasionally feel disposed to introduce into the law, as into other sciences, the improvements which we may think justified by the progress [**36]  of the age, we should tread with particular caution as we approach any of the questions touching the transfer of real estate,--and pause before we uproot any of those ancient land-marks of the law which may define the titles to much of the land of Maryland.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*489]  LE GRAND, C. J., delivered the opinion of this court.
This case has been discussed at the bar with great fullness of illustration, and the views of the respective counsel, presented with clearness and cogency of reasoning.
To our minds--looking to past and distinctly recognized adjudications--the questions we are called upon to decide are confined within a narrow space. The action is one of ejectment, and the principal facts of the case may be thus stated:
On the 14th day of May 1792, a certain Joseph Bankson, by deed, conveyed (reserving to himself and wife, and to the survivor of them, a life estate therein) a certain lot of ground and the improvements thereon, to his three children, Harriet Giles Bankson, Joseph Bankson and Elizabeth Bankson, their heirs and assigns forever, as tenants in common. The consideration [**37]  for this conveyance was natural love and affection, and the nominal sum of five shillings. On the 17th day of February 1795, the aforesaid Joseph Bankson conveyed the same property to Daniel Diffenderffer, for a valuable consideration, the wife of Bankson releasing her dower. Diffenderffer immediately took possession, and remained in it until his death in 1809 or 1810, devising the property to his wife, who continued in it until her death, which occurred in 1832 or 1833, after which, it was sold by a trustee appointed for the purpose, and the title of Diffenderffer and wife, by legally executed and acknowledged mesne conveyances, and lastly, by a deed from Henry Dorsey, became vested in Thomas Kell, who paid for it $ 7000, and who remained in possession of it until his death in 1846. The lessor of the plaintiff claims title under the voluntary deed of 1792, and the defendants under the deed of 1795, for a valuable consideration to Diffenderffer, and through the intermediate conveyances down to Thomas Kell, and through and from him down to themselves. The deeds of 1792 and 1795, were both placed on record in the proper office on the days of their dates. The widow of Joseph Bankson [**38]  survived her husband until 1843. Elizabeth Bankson, (who intermarried with a certain John S. Cooke, since dead,) is the only child of the grantor, being a grantee in the deed of 1792, now living, the other two 

 [*490]  children having died without leaving issue. There was testimony given on the part of the defendants, for the purpose of showing that the elder Bankson was apparently in needy circumstances, and that, at the time of the execution of the deed in 1795 to Diffenderffer, it did not appear, from the public records, he had any other property than that mentioned in that conveyance, and also, that until a very short time before the institution of this action, no claim on the part of the grantees in the deed of 1792, was heard of by the witnesses. This is substantially the evidence in the cause. The plaintiff offered one prayer to the court, which was rejected, and the defendants two, which were granted.
The defendants contend, that under a proper construction of the statute of 27th Elizabeth, entitled, "An act against covinous and fraudulent conveyances," and the circumstances of this case, the deed of 1792, under which the lessor of the plaintiff claims title, is void [**39]  and of no avail as against the defendants, who claim under the deed of 1795, which was for valuable consideration; that as to them, it is void and fraudulent, there being no evidence of notice of the deed of 1792, and that it was executed with a fraudulent intent in fact.
On the other hand the plaintiff insists, that neither in law, nor in fact, was there any fraud in the execution of the deed of 1792, and that it is all sufficient to entitle her to recover in this action.
The first inquiry for our determination is: What is the re-received and binding interpretation of the statute of 27th Elizabeth, ch. 4, in this State? On this, principally depends, the decision of this case. Until the year 1807, when was decided the case of Doe vs. Manning, 9 East., 59, there was much contrariety of opinion in England--and doubtless, also in this country--as to the true meaning of the statute; since then, however, the opinion of Lord Ellenborough, has, in England, put to rest all judicial doubts on the subject. Were that opinion law in this State, there would be an end to the plaintiff's title under the voluntary deed of 1792. But it is not the law. In the case of Warren & others'  [**40]   Lessee, vs. Richardson & Wife, et al., decided in the year 1837, the Court of Appeals relied upon and adopted the decision of the 

 [*491]  Supreme Court of the United States, in the case of Cathcart vs. Robinson, 5 Peters 280, and in the case of the Mayor & City Council of Balto. vs. Williams, 6 Md. 235, this court again construed the statute of 27th Elizabeth, and again adopted the construction placed upon it by the Supreme Court. Fully concurring in the correctness of those decisions, we are relieved from all inquiry as to what may be the law elsewhere. The principal difference between the doctrine of Doe vs. Manning, and that of Cathcart vs. Robinson, consists in this: By the former, the mere execution of a voluntary deed raises the presumption--which cannot be rebutted--of fraud as against subsequent purchasers for value, whilst by the other, the rule is, in the language of Chief Justice Marshall: "A subsequent sale without notice, by a person who had made a settlement not on valuable consideration, was presumptive evidence of fraud, which threw on those claiming under such settlement, the burthen of proving that it [**41]  was made bona fide." This quotation from the opinion of Chief Justice Marshall, contains, to the fullest extent contended for by the counsel of the defendants, their interpretation of the statute. It does not assert the doctrine, in any sense, that a voluntary deed is void simply because it is voluntary; it merely--as against subsequent purchasers for value--makes it presumptive evidence of fraud, where there has been no notice to subsequent purchasers, and casts, in such a case, upon those claiming under it, the burthen of disproving the presumption. When the subsequent purchaser has notice, no such presumption arises, and as was said in 6 Md. 265: "To hold that, with notice to the purchaser, the settlement is subject to the presumption of fraud, simply in consequence of the subsequent conveyance for value, we think is not required by the language of the statute, and is inconsistent with correct moral feeling."
This being so, the question then is: Had Diffenderffer notice of the voluntary deed of 1792? There is no evidence in the record showing that he had, in point of fact, notice of its existence; on that head there is perfect silence. Whether [**42]  or not, then, he had such notice as will bind him, and those 

 [*492]  claiming under him, must depend upon the effect of our registration laws. The deed of 1792 was placed on record the day of its execution, and, of course, open to inspection in 1795, when the second deed was made.
In the case of Warren vs. Richardson, already referred to, decided by the late Court of Appeals, and reported in 6 Md. 272, the Reporter, in a note, has drawn the inference from the decision of the court upon the prayers offered, and from the facts appearing in the record of that case, and from the fact, that the Court of Appeals, upon the reversal of the judgment awarded a procedendo, "that the notice which will bind the subsequent purchaser, need not be actual, but that constructive notice furnished by the recording of the voluntary deed under our registry laws, is sufficient." In this, we think, he was correct. There was no evidence, that the subsequent purchasers in that case had any actual notice of the prior voluntary deed. If, then, the fact of the registry of the deed did not affect them with notice, we are unable to perceive for what purpose a new trial was [**43]  directed under a procedendo? We think the court could not otherwise than have decided, that the registry of the deed affected the subsequent purchasers with notice, and thereby shifted the onus upon them to show, if they could, that the deed was fraudulent in fact, and for the purpose of enabling them to do this, ordered a new trial. If the registry of the deed did not have, in the opinion of the court, this effect, then, the defendants stood in the attitude of subsequent purchasers for value, without notice, and the question of law raised by the prayers, became a mere abstract proposition, the decision of which, either way, would have been of no avail to the voluntary grantees under the deed.
But, be this as it may, the interpretation we have sanctioned is fully sustained by express decisions. In the case of Beal vs. Warren & another, 2 Gray 450, the Supreme Court of Massachusetts, when speaking of a voluntary deed, under the statute of 27th Elizabeth, say: "No question is made whether the second grantee had actual notice of the first conveyance, though, from the relation of the parties, and from the fact, that 

 [*493]  there was no [**44]  attempt to show actual fraud, such notice may reasonably be inferred. Nor would this be, in the absence of fraud, material; for the registration of the conveyance would be constructive notice, and sufficient notice, to all subsequent purchasers." In the case of O'Neill vs. Cole, 4 Md. 107, the court, referring to a deed, executed by a female, a short time before her marriage, and which was contested by her surviving husband after her death, remark that, "If the appellant, (the husband,) had reason to suppose that his late wife, before their marriage, had been imposed upon, or induced to execute a conveyance of which she did not know the contents and meaning, it was quite proper for him to resist the attempt of the appellee to possess himself of the property. In this we think he has failed; and if, failing in this, he seeks to make out a case of fraud in law upon his marital rights, there is no reason why he should not be bound by the notice, which our recording acts impute to others when seeking to vacate conveyances, or when claiming against them." In the same case, the Chancellor had previously said, 3 Md. Ch. Dec. 174, [**45]  that, "It is the settled American doctrine, that the registration of a conveyance, operates as constructive notice upon all subsequent purchasers of any estate legal or equitable in the same property." And as was said by a majority of the court, in the case of Williams, et al., vs. Banks, et al., 11 Md. 198: "It seems to us a contradiction in terms, to say, that a person is defrauded by an instrument, when he deals with a perfect knowledge of its existence and of its effect. If our registration laws have any operation, they certainly do, as they were designed, give notice to all the world, so that there may be no deceit practiced upon any one. If registration laws do not give notice to the community which will bind it, then they are of no use whatever, for, without registration, deeds would be binding inter partes." This language was applied as well to deeds under the 13th, as to those under the 27th of Elizabeth.
These authorities are all sufficient, in this State at least, to show that registration is constructive notice, and all sufficient to bind subsequent purchasers in the absence of actual fraud.

 [*494]  The prayer of the plaintiff [**46]  was defective, only in the omission, to require the jury to find the existence of the deed of 1792.
The first prayer of the defendants was erroneous, in ignoring the effect of the registration, and requiring actual notice. We do not think the facts, if found, enumerated in their second prayer, sufficient to have authorised the jury to find the deed of 1792 was not bona fide, but fraudulent and void. All those facts might be found, and, nevertheless, the deed might be bona fide and valid. There must be some pointed evidence to establish fraud in fact. We affirm the court below in its rejection of the plaintiff's prayer, and reverse its decision granting the prayers of the defendants.
If left to conjecture, we may imagine, that the case was a hard one on Diffenderffer, as it was undoubtedly on Kell, who paid a full price; but it may, also, on the other side, be supposed, that Diffenderffer had actual as well as constructive notice of the deed of 1792, when he accepted that of 1795, but, that relying upon what may be very reasonably supposed, at that time, to have been the opinion of the profession, as to the true construction of the statute of Elizabeth, he believed [**47]  it competent to the elder Bankson to give him a good title. But with surmises we have nothing to do. Unless the defendants can establish fraud in fact, the registration of the deed of 1792, concludes them in this action.
Judgment reversed and procedendo awarded. 

173 of 196 DOCUMENTS 

THOMAS WILSON and Others vs. JOSEPH B. RUSSELL and Others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

13 Md. 494; 1859 Md. LEXIS 42 

May 31, 1859, Decided 

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

On the 15th of February 1856, William Mason and wife, and William Mason, Jr., (the said William Mason and William Mason, Jr., constituting the firm of William Mason & Son,) executed a deed of trust to St. George W. Teackle and William A. Talbott, in which it is recited as follows:

"Whereas Thomas Wilson and the firm of Thomas Wilson & Co., of which the said Thomas Wilson, Robt. W. Allen and Wm S. Peterkin are partners, have agreed to loan to the firm of William Mason & Son, their promissory notes, from time to time, as may be desired by said firm of Mason & Son, to an amount not exceeding in all, at any one time, the sum of $ 36,000, in the manner and upon the terms following, to wit:--The said Thos. Wilson is to loan his individual notes to an amount not exceeding in all, at any one time, the sum of $ 18,000, and the notes of said firm of Thos. Wilson & Co., are to be loaned to an amount not exceeding in all, at any one time, the like sum of $ 18,000, said notes, so to be loaned, are to be made payable at six months after date, respectively, and are to be regularly taken up and retired at maturity, by said firm of Mason &  [**2]  Son; such loans of notes to be so made by the said Wilson and Wilson & Co., only during the periods of three and four years from the date of the first loan made by said Wilson and Wilson & Co. respectively, to wit: loans to the whole amount aforesaid, during the period of three years from the date of said first loans, respectively, and loans to the amount of $ 18,000 during one year thereafter. And it is hereby understood and agreed, that in case either the said Thomas Wilson or the said William Mason should die, before the expiration of the period above limited, within which the said promissory notes are to be loaned, then no other or further loans of any of said notes shall be made, and said agreement shall cease, so far as it might otherwise require any loans of notes after such death, but the notes then outstanding shall be taken up and retired by said Mason & Son, or the survivor of them, as they severally fall due; and upon any default in taking up any one of said outstanding notes, the parties of the second part hereto, or the survivor of them, shall execute the trust hereinafter conferred on them, in the same manner as though such default had been made in the lifetime of the [**3]  party who shall have died. And it is also agreed, that when any of the notes so loaned shall be taken up and retired by said Mason & Son, such notes, so retired, shall be cancelled and returned to said Wilson and Wilson & Co., as the case may be, before said Mason & Son shall be entitled to any further or other loan of note or notes. And it is also agreed, that said Mason & Son shall, so long as any of said notes may be outstanding and unpaid, at their own expense, insure and keep insured, in the names of the said parties of the second part, the buildings and machinery and property comprised in this deed, to the amount of $ 36,000, and if they fail or neglect so to do they shall not be entitled to any loans of notes, under this agreement, until such insurance shall be made, and said Thos. Wilson and Thos. Wilson & Co., shall have the right to cause such insurance to be made and charge the said Mason & Son with the money paid therefor, which shall be payable immediately, by said Mason & Son, and shall be a lien on said property, and be paid therefrom by the trustees hereby appointed, on a sale of said property, after default in taking up any of said loaned notes. And whereas the said [**4]  William Mason, and William Mason, Jr., and Henry A. Barling, under the firm of William Mason & Son, were formerly indebted to the said Wilson, in the sum of $ 3014.67, due on the 15th of July 1848, and to the said Wilson & Co. in the sum of $ 3648.97, due on the 7th of August 1849, which sums have not been paid. And the said Mason & Son, in consideration of such unpaid indebtedness, have agreed to pay, to said Wilson and Wilson & Co., to be credited on account of said several sums of money, so formerly owing and unpaid, a sum of money equal to five per cent. on the amount of each note, so to be loaned, by said Wilson and Wilson & Co., said amount to be paid as and when each note is loaned. And it is hereby expressly understood and agreed, that the said firm of Mason & Son hereby undertake to pay only such amount of said old indebtedness as shall be covered by the aggregate of five per cent. of the amount of each note that shall be loaned as aforesaid, by said Wilson and Wilson & Co., respectively; and upon the completion of the agreement, above set forth, for the loan of notes, or cessation from transactions between said parties, in pursuance of said agreement, then the whole balance [**5]  of said old indebtedness, which may remain unpaid by said per centage on amount of notes to be loaned as aforesaid, is to be forever released, discharged and barred, as fully in every respect as if this instrument had never been executed. And it is also agreed, that if said old indebtedness, with interest, shall be paid by such credits, and said Wilson and Wilson & Co. should continue the loan of their notes to said Mason & Son, then the payment of said sums, equal to five per cent. on each note so loaned, shall cease. And the parties of the first part hereto, in order to save harmless the said Wilson and Wilson & Co., from all loss and injury in the premises, and to secure the payment of the amount of five per cent. as aforesaid, of the face of each note to be loaned, have agreed to execute these presents."

The deed then, in consideration of the premises above recited and five dollars current money, conveys to said Teackle and Talbott, and the survivor of them, and the heirs, executors, administrators and assigns, of the survivor, "all and singular the lands, tenements, hereditaments and leasehold estates, property and other the premises, lying in Baltimore county aforesaid,  [**6]  which by indenture, dated the     day of -----, eighteen hundred and fifty-six, and recorded or intended so to be, among the land records of said county, were conveyed and assigned by William McKim and others, to the said William Mason and William Mason, Jr., with the improvements, privileges and appurtenances, to the same belonging or in any wise appertaining; and also, all and singular the machinery, fixtures and apparatus, in both the Powhatan and Pocahontas Mills or Factories, on the said property and premises being," to hold the same, "in trust, that upon the failure on the part of the said firm of Mason & Son, to take up and retire, any one or more of such promissory notes as shall be loaned by said Wilson and Wilson & Co., or either of them, in pursuance of the agreement hereinbefore set forth, for the space of three months after such note or notes shall become due, then the said trustees or the survivor of them, shall proceed to sell the property hereby conveyed, at public or private sale as they shall see fit, and upon such terms as they shall deem proper," and apply the proceeds, 1st, to the expenses of the trust including a commission of five per cent. to the trustees;  [**7]  2nd, to the payment of such note or notes as may have matured and remain unpaid as aforesaid, with all interest and charges properly due thereon, and to the payment of such sum as may have been paid for insurance as aforesaid; 3rd, to the taking up and retiring at maturity, of all such notes as shall have been loaned by said Wilson and Wilson & Co., in pursuance of the agreement, with all interest, costs and charges, properly due thereon, "and to the payment of so much as may be then due and unpaid, of said amount of five per cent. stipulated in said agreement;" and 4th, "to pay and transfer the balance of said proceeds, if any, to the said firm of Mason & Son." "And upon the further trust, that said trustees shall, in the mean time, and until the happening of the contingency, contemplated in the foregoing clause of this trust, permit and suffer the said parties of the first part, and their representatives, to hold, use, occupy and enjoy, the property above described or referred to, and hereby conveyed, and the rents, issues and profits thereof, to take and receive, to and for their own use and benefit, said parties of the first part, however, paying and discharging in the mean time,  [**8]  all taxes, levies, assessments, charges and expenses thereon. And in further trust, that upon the faithful performance of their said agreement, said trustees shall reconvey, assign, transfer and release, unto the said William Mason and William Mason Jr., the property above described or referred to, free from this trust in every respect, as if this deed had never been executed."

The deed was executed by the grantees, and also by Wilson & Wilson & Co., and was duly acknowledged on the day of its date and recorded the day after. There was also an affidavit of the trustees endorsed thereon, that the consideration set forth in said indenture is true and bona fide as therein set forth.

On the 22nd of November 1856, William Mason and William Mason, Jr., executed a bond of conveyance to Thomas M. Mason, Charles C. Grafflin and Charles C. Mason, in which it was recited, that the obligors, on the 1st of October 1856, agreed to sell and convey to the obligees, all their interest in the property conveyed by the above deed of trust, for the sum of $ 127,556, for which, with interest thereon, the obligees delivered to the obligors ten promissory notes of different amounts, drawn by the [**9]  obligees and payable, at different periods, to the order of Mason & Son, the obligors. This bond was recorded on the 1st of December 1856, and contains this stipulation: "But in case of any default in payment of the aforesaid promissory notes, or any of them, then it is hereby declared to be the agreement of the parties to these presents, the entire indebtedness, on account of all the aforesaid promissory notes, shall then be considered due and demandable, at any time, by the obligors in this bond; and then, and in that case, the said obligors, herein named, may proceed to sell the above described land, property and premises, and apply the proceeds, of any sale made by them, to the extinguishment of all claims against said described or mentioned land, property or premises."

Default having been made by Mason & Son, in the payment and retirement of some of the notes made to them under the above mentioned deed of trust, the trustees, Teackle and Talbott, advertized the property for sale at auction, and thereupon, on the 19th of June 1858, the appellees, Joseph B. Russell and Henry P. Russell, trading under the firm of Russell & Bro., and Charles D. Ellis, and the Bank of Commerce,  [**10]  for themselves and other creditors of Mason & Son and Mason & Brother, filed the bill in this case and obtained an injunction to prevent such sale.

The bill charges, in substance, that at the time this deed of trust was made, Mason & Son were insolvent and unable, from their means and property which they then had, to pay their then existing liabilities; that by the terms of the deed, the loans of the notes were not to be made within any defined or definite or certain period of time, but were to be made whenever Mason & Son might require them, and might be indefinitely postponed and made at any time, however remote, after the execution of the deed, inasmuch as the period when the first loans of the notes was to be made was not specified or fixed by the deed, but made to depend upon the uncertain time or period when a demand or request of the loan of the first notes might be made by Mason & Son, and that because of this uncertainty of time, when the loans might be made, and the incumbrance thereby intended to be created might attach, the deed is fraudulent and void, and ought to be so declared, and set aside as a hindrance and delay of creditors. That the old debts, set forth in [**11]  the deed, were, at the time of its execution, discharged under a previous application of the debtors for the benefit of the insolvent laws, and also barred by limitations, and that Wilson and Wilson & Co., contriving and fraudulently intending to obtain security for, and payment of, these pretended claims so barred and discharged, induced and persuaded Mason & Son to enter into the agreement in reference thereto, set forth in the deed, which arrangement was a mere scheme and device, by fraudulent means and contrivances, to avoid the forfeitures and penalties of the statutes of usury, and that the entire contract, as set forth in the deed, was, and is, fraudulent in fact and in law, usurious, null and void, and that the fraud thereof was contrived and devised for the purpose of promoting the illegal intent of taking, receiving and securing, usurious interest, and that, therefore, the deed should be cancelled, annulled and set aside. That the property conveyed by this deed embraced all, or nearly all, the visible and tangible property and estate of Mason & Son, to which they were in any way entitled, and if they possessed any other, it was of little or no value, and was greatly insufficient [**12]  to pay their just liabilities, and that by this deed, their creditors were, and are almost, if not entirely, remediless, and were, and are, thereby prevented from enforcing payment of their just claims, and hindered and delayed in the collection thereof. That by the terms of the deed, Mason & Son were to remain in possession of the property, until default in keeping their part of the agreement contained in it, and thus all, or nearly all, their visible and tangible property was to be, and in fact was, so arranged and held, that while it should appear responsible for the whole of the fraudulent and usurious contrivances and stipulations of the deed, and be thereby kept from the remedies of their creditors, they might have the full control and enjoyment thereof, until the indefinite period when they might require a loan of one of the notes provided for, and for a period of three or four years thereafter, and until default should be made by them in respect to such note or notes, and Wilson and Wilson & Co., might choose to insist on a sale for account thereof; and it was even further arranged and contrived, that when the property should be ultimately sold, the trustees should still be [**13]  bound to hand over the surplus to Mason & Son; by all which, it will appear that the whole deed and its terms were an illegal contrivance for the common benefit of Wilson and Wilson & Co., on the one side, and Mason & Son, on the other, to hinder, delay and defraud the then existing and future creditors of Mason & Son, and to obstruct their lawful actions, and to preserve and maintain their property, subject to the usurious and void contract aforesaid, for their use and purposes, to the exclusion of their then existing, and in fraud of their future, creditors, and for an indefinite period of time, and for these reasons also the deed is fraudulent and void, and ought to be so pronounced.

The bill then states the sale and execution of the bond of conveyance of the 22nd of November 1856, above stated, and charges, that Mason & Son transferred for value to the complainants, Russell & Brother, three of the promissory notes mentioned in this bond, and another for $ 15,051.59, to the Bank of Commerce, and that Russell & Brother have since endorsed the three notes, so delivered to them, to the complainant Ellis, who now holds the same for value, the endorsers remaining responsible thereon,  [**14]  and that Ellis and the bank are entitled in regard to the notes so held by them respectively, to all the rights and title to, and security upon, the said property which were in said Masons in regard thereto, at the time of and after the execution of said bond of conveyance. The complainants also aver and charge, that at the time of the delivery to them of these notes, neither Russell & Brother, nor the bank, had any knowledge or notice that any advances had been made under the deed of trust by Wilson, or Wilson & Co., if any in fact had been made, which they do not now admit, and that Mason & Son have since, by their mortgage of the 5th of February 1858, duly recorded, (a copy of which is filed as an exhibit with the bill,) assigned and transferred to the complainant Ellis, their interest and estate in said property, so far as they thereby might, to secure the payment of the notes so held by said Ellis, by priority, and in preference, which priority and preference, however, is not admitted by the bank. The bank also charges, that it holds the note so transferred to it as security for a debt of Mason & Son, of $ 12,000, or thereabouts, for which, with interest and costs, it has recovered [**15]  judgments against them.

The bill then states the advertisement of the trustees for the sale of the property, and charges that the notes of Wilson, and Wilson & Co., loaned by them to Mason & Son, were discounted, owing to the embarrassed condition of Mason & Son, at large rates of discount, and with a heavy loss, and at usurious and unlawful rates, and, as the complainants have been informed, and verily believe, some of them were discounted by Wilson, or Wilson & Co., at usurious and unlawful rates of interest.

The bill then charges that the complainants are entitled, by virtue of their interest and property in the notes so held by them, to a sale of the property under the terms of the said bond of conveyance, for the payment of such notes equally and alike, or according to such priorities as the court may adjudge, and in preference to, and notwithstanding the fraudulent deed of trust aforesaid, and that the Bank of Commerce, by virtue of its said judgments, has a lien on the property in preference to said deed; that the property, if sold under fair and advantageous circumstances, is sufficient, or nearly so, in value, to pay all proper and lawful liens and incumbrances thereon,  [**16]  and might, indeed, suffice to pay the debt or claim of Wilson, and Wilson & Co., were the same lawfully due; that if now sold to a bona fide purchaser for value, the complainants may and will be greatly embarrassed in, if not entirely precluded from, asserting their rightful equities against such purchaser; that from the present state of the market and trade, manufacturing property, like that in question, is in no demand whatever, and cannot be sold except at a sacrifice of the most ruinous character at this time; that owing to the existence of the aforesaid bond of conveyance, and the cloud upon the title to the property, because thereof, and because of the doubtful rights of the trustees under the illegal and inequitable clauses and provisions patent upon the face of the deed of trust itself, it is impossible the property should sell for more than a small part of its real value, the result of all which will be, that there will be no surplus in the hands of the trustees to pay the complainants' debts, and the property will be bought in by Wilson or Wilson & Co., or some person for them, at an insignificant price, all adding to the complication of title and remedy of the complainants,  [**17]  and exposing them to irreparable and irremediable wrong and mischief, the said firm of Mason & Son, and Mason & Brother, and all the members thereof, being utterly insolvent, and the property aforesaid being the only resource and chance of payment left to the complainants.

The prayer of the bill is, that the deed of trust may be cancelled and set aside, for an injunction restraining the trustees from selling the property or any part thereof, till further order of the court, and for general relief.

The defendants to this bill were, Thos. Wilson, Thos. Wilson & Co., Mason & Son., Thos. M. Mason, Chas. C. Grafflin, Chas. M. Mason, and Teackle and Talbott the trustees, and the injunction was granted as prayed.

The trustees in their answer state, that they do not know whether or not, at the time the deed of trust to them was executed, Mason & Son were insolvent and unable to pay their debts, but do know that, at that time, they were prosecuting business with apparent success, and, as respondents believe, meeting their engagements punctually as they fell due. They know nothing of the transactions and dealings between Wilson and Wilson & Co., and Mason & Son, except as derived [**18]  from their co-defendants Wilson and Allen, and they therefore adopt the answer of Wilson and Wilson & Co., as part of their own. They deny that the deed was made to hinder, delay or defraud, any of the creditors of Mason & Son, but, on the contrary, as they were informed at the time of its execution, and then and now believe, and therefore charge, the same was executed, to enable Mason & Son to pay a balance of purchase money, due on the property thereby conveyed, and to give them facilities in improving it, and carrying on their business. They deny that the deed is fraudulent, in fact or in law, and further deny, that it is usurious, null and void, and that it was contrived and devised, for the purpose of promoting and effecting any illegal intent or purpose whatsoever, and they aver, that it was executed for the purposes and those only set out in the deed itself, which purposes they believe, and therefore charge, were fair, legal and proper. They know nothing of the other property of Mason & Son, then or since, nor do they know any thing of their own knowledge, of the subsequent sale or agreement to sell to Thomas M. Mason and others, as charged in the bill, nor of any transactions [**19]  in reference to such sale, nor of the claim of the complainants or either of them except from hearsay. They admit they were called upon and requested by Wilson and Wilson & Co., to advertise and sell the property under the deed of trust, (the said parties producing to them evidence of the default thereunder,) and they accordingly advertised the same, as by the advertisement filed with the bill appears, and as they had the right to do. They further say, that the only cloud upon the title of the property was created by the complainants themselves, and they submit, that on the face of the bill itself, it manifestly appears, there is not only no cloud upon the title but no complication of title, and they believe, that the property could have been as readily sold at as good a price when advertised as now. Not admitting any of the other matters set out in the bill, they pray the injunction may be dissolved and they dismissed with costs.

Thos. Wilson and Thos. Wilson & Co., in their joint answer state, that at the time of the execution of the deed of trust, they did not know what was the condition of embarrassment and indebtedness, or otherwise, of Mason & Son. They knew that William [**20]  Mason had been for many years previously, largely engaged in commercial business in the city of Baltimore, and had been unfortunate therein and discharged under the insolvent laws, but after his release he had again engaged extensively in business, but with what degree of profit these respondents had no means of knowing. But whatever was the condition of indebtedness of Mason & Son, these respondents aver, that the transaction with them, which forms the basis of this suit, was in its nature calculated to enlarge the ability of Mason & Son, to pay their debts rather than diminish it. This will be apparent when it is stated, that on the day this deed was executed, to secure these respondents against loss from their loan of $ 36,000, Mason & Son purchased the same property from William McKim and others, for the sum of $ 29,100, and actually paid for the same with the very notes advanced by these respondents, or their proceeds, thus adding to their available means the sum of $ 6900. These respondents therefore deny, that the effect of this transaction was, in any sense, to impair or lessen the means of Mason & Son to pay their pre-existing debts, but, on the contrary, they aver, that by [**21]  placing in their possession a large manufacturing property upon a long credit, capable of being used profitably for themselves and for any creditors they might have, and by giving them a surplus of capital above the cost of the property, they and their creditors were placed in a more beneficial condition than if this transaction had not been made.

In answer to that part of the bill which charges, that the agreement set forth in the deed is indefinite, in respect to the time within which the notes were to be advanced, and therefore void, these respondents say, that the amount secured by the deed is definitely and exactly stated, and the record of it, therefore, gave notice to all the world of the actual amount which could be charged upon it. But if the power of extending the period within which the loan would become payable, was given by the agreement to Mason & Son, it enured for their benefit and that of all their creditors, since it gave them, and through them their creditors, a longer period for the profitable use and enjoyment of the property, before these respondents could demand that the notes should be finally retired and the agreement ended. But these respondents submit,  [**22]  that the complainants take an erroneous view of the law applicable to this subject. The law of Maryland demands, that the sum intended to be secured by a mortgage should be definitely stated upon its face, that all parties dealing with the mortgagor may have notice of the extent of his liability upon the mortgage. There is no requirement that the length of credit should be stated. If the time should be omitted, the law, through the courts, affixes a reasonable time within which the money is to be paid. Nor can any harm arise to creditors from this; they are not hindered or delayed in enforcing their claims against the property, and can have the time agreed upon by the parties disclosed, and if none has been agreed upon, a reasonable time declared by the court. These respondents therefore deny, that this agreement was intended to delay, hinder or defraud the creditors of Mason & Son, or that such has been the legal effect and consequence thereof.

They admit that the former firm of Mason & Son was indebted to these respondents in the aggregate sum of $ 6662.97, and that the debtors had been discharged therefrom under the insolvent laws, but deny that this debt was barred by limitations,  [**23]  judgments having been obtained thereon. But these respondents aver, that though this debt was legally discharged, there yet existed a moral obligation, which the law considers a sufficient consideration for any subsequent promise to pay it, and this debt, being so acknowledged, might have been lawfully paid, or secured by mortgage, by the debtors, in the same manner as any subsequent debt might have been. The transaction was made upon the urgent solicitation of Mason & Son, who called repeatedly upon these respondents to induce them to enter into it, stating, that by it they would be made perfectly easy in their business arrangements and would be enabled, without difficulty, to pay their old debt to them. To secure this debt, these respondents admit, was the inducement to enter into the transaction, and their hope to do so was founded upon the increased business facilities it would give to Mason & Son. These respondents submit therefore, that if their promise to pay this debt would have been legally valid and binding on Mason & Son, supported by no other consideration than the moral obligation to pay, they are at a loss to see, why it should not be equally legal, when the arrangement,  [**24]  under which it is given, affords them the means to pay. These respondents therefore deny, as it is charged in the bill, that this agreement is fraudulent in fact and in law, usurious, null and void, and that the same was contrived and devised for the purpose of promoting and perfecting the illegal intent and purpose of taking, receiving and securing usurious interest, but, on the contrary, they aver, that the same was bona fide and legal, and intended only to secure the payment of the precedent debt, justly due them, in a gradual and easily progressive way, out of the facilities which the transaction afforded to Mason & Son. But even if the transaction was usurious, if sought to be enforced by these respondents, it is nevertheless perfectly valid when assailed in a court of equity, by the complainants, unless they offer to pay these respondents the principal sum and legal interest actually due to them. They therefore submit, that in the absence of such a tender the complainants have no standing in this court upon the question of usury.

In answer to that part of the bill which charges, that the deed is fraudulent and void, because Mason & Son, by the terms of the agreement, might [**25]  postpone and delay the application for the loan of the notes, for as long a time as they might please, and that while the whole of the property might appear to be subject to the large claim of $ 36,000, and the additional charge of of five per cent., it might, in fact, not be responsible for any part thereof, these respondents say, that in this respect this deed does not differ, in effect, from any other mortgage to secure advances intended to be made, but in which the maximum amount, for which the property can be made liable, is stated upon the face of the mortgage. The same objection would apply to all such mortgages, for it would be impossible for any third party not specially cognizant of the dealings between the mortgagor and mortgagee, to know, at any particular time, how much had been advanced of the whole sum intended to be secured. But although such third party cannot know the extent of the advances at any particular date, he knows from the beginning the utmost extent to which the property can be encumbered, and for the purposes of notice he is told the worst. How, then, any one could be deceived by the terms of this deed, which was duly recorded, immediately after its execution,  [**26]  these respondents are at a loss to conceive.

Further answering, these respondents say, that whether the property, conveyed by this deed, was all the property of Mason & Son, or not, they had not, at the date of the deed, any means of knowing. They do know, however, and again refer to the fact, that Mason & Son acquired title to the property on the same day they made this deed, and, as these respondents believe, paid the consideration therefor, in whole or in a large part, out of the proceeds of these very notes secured by this deed. Instead therefore of diminishing the estate of Mason & Son, the effect of the transaction was, as before stated, only to add to their pecuniary ability, by the amount of the difference between the consideration, paid by them at the date of the deed, and the amount secured by the deed. But these respondents protest, that however the fact might be, it could not have operated to the injury of the complainants, for they were not creditors of Mason & Son, at the date of this transaction, and did not become so till some time after the deed was recorded, so that they became so with full knowledge of the deed, and the extent of the liability imposed upon the [**27]  property thereby. These respondents insist therefore, that the complainants are in no condition to object to the validity of a deed, of which they had full knowledge before they assumed the relation of creditors.

These respondents, further answering, say, that the provision in the deed, by which Mason & Son were to remain in possession of the property till default was made, and the further provision, by which, in case the trustees were required to sell the property, the surplus, after discharging whatever might remain to be paid upon the agreement, was to be paid over to Mason & Son, were the usual clauses inserted in such deeds, and were, in themselves, legal and proper. And as to the charges of usury and fraudulent arrangements and contrivances between these respondents and Mason & Son, if not sufficiently denied before, these respondents do now again, most distinctly, deny, that there was any usurious contrivance practiced, or intended to be practiced, by the terms of the deed, or that there was in fact, or intended to be, any contrivance or stipulation whereby the creditors of Mason & Son were to be kept from any of their remedies and proceedings, or that Mason & Son were [**28]  to have any control or enjoyment of the property, in opposition to the just claims of their creditors, or that the deed, or the trusts thereof, were an illegal contrivance for the common benefit of these respondents and Mason & Son, and to hinder, delay and defraud their creditors then being, or thereafter to be, or to obstruct their lawful actions, or to reserve and retain the property of Mason & Son, subject to any usurious and void contract, for the use and purposes of Mason & Son, to the exclusion of their then existing, or in fraud of their future, creditors, or for any indefinite period of time. And they not only deny the same as matter of fact, but they also deny, as matter of law, that the deed can, by its effect and operation, produce any such results.

Further answering, they admit, that after the execution of the deed, and after the same had been recorded for a period of seven months and a half, the bond of conveyance exhibited by the complainants, with their bill, was executed, and they are willing to admit, though they had no personal knowledge of the fact, that the complainants became the owners of the notes set out in the bill, but these respondents leave all questions [**29]  of priority among the complainants, as alleged in the bill, to be adjusted among themselves. And in answer to the allegation, that Russell & Brother and the Bank of Commerce, at the time of the delivery of the notes, respectively claimed to be held by them, had no knowledge or notice that any advances had been made by these respondents under the deed, these respondents aver they had notice of the existence of the deed, and of the extent to which the property therein conveyed might be made liable by advances, and they were bound, therefore, to presume that the whole sum had been advanced, or deal with Mason & Son, in respect to the property, at their own peril, upon any other hypothesis that a less sum had been advanced.

They admit, that having advanced the whole of the notes secured by the deed, and default having been made by Mason & Son, in the taking up and retirement of the same, they requested the trustees to sell the property, who did accordingly advertise and were proceeding to sell, until restrained by the injunction in this case.

Further answering, these respondents say, that they do not know at what rates the notes advanced by them were discounted, but they presume,  [**30]  that inasmuch as the names of these respondents were ranked among the first class of commercial names, they were discounted at the current rates of such paper at that time. These respondents admit, that after the notes had been advanced to Mason & Son, and after they had gone into the market as commercial securities, some of them were brought to these respondents, by brokers, for sale, and pursuing the usage, in that behalf, which is extensively practiced among merchants, who, for the preservation of their credit, withdraw their paper from the street by purchasing the same, they did buy several of said notes for a sum less than their face, with legal interest off, but they deny, most positively, that they ever bought any of said notes from Mason & Son, or from any agent of theirs, knowing him to be such, or that they ever had, with them, any agreement or understanding that they would buy said notes, or any part of them.

They further deny that the complainants are entitled, under and by virtue of the interest and property in the promissory notes claimed to be held by them, to a sale of the property, or that the Bank of Commerce has, by virtue of any judgment, a lien on the property.  [**31]  Nor can they say what the property, if sold under fair and advantageous circumstances, would produce, nor whether the same will suffice to pay the claim of these respondents. But they do aver, that the complainants, by the injunction which they have caused to be issued in this case, have prevented the trustees from making a fair and advantageous sale of the property, and lawfully applying the proceeds according to the terms of the deed of trust. And they further aver, that there does not now, and never has existed, any cloud whatever, upon the title to the property, except such as the complainants, by their bill, have themselves made, and if such a pretext as this furnishes a just ground for equitable interference, on account of cloud on title, then any sale may be enjoined by first raising the alleged cloud and then using it as a ground for relief. Your respondents, therefore, respectfully ask, that the injunction issued in this case may be dissolved, and the bill of the complainants dismissed.

The defendants, Wilson and Wilson & Co., then moved to dissolve the injunction, and this motion having been set down for hearing, a commission was issued, under which testimony was taken.  [**32]  

Under this commission the complainants proved the exhibits filed with their bill, and from the proof taken it appears, that the transactions between Wilson and Wilson & Co. and Mason & Son, so far as the loans of notes under the deed of trust are concerned, commenced on the 15th of February 1856, the date of the deed, (several notes, both by Wilson, individually, and by Wilson & Co., having been loaned on that day,) and terminated on the 2nd of November 1857. There were four sets of notes actually loaned, each set amounting to $ 36,000. The first set was loaned between the 15th of February and the 18th of July 1856, and were taken up by Mason & Son at maturity, and new notes (second set) given therefor between the 18th of August 1856 and the 21st of January 1857, which also were taken up by Mason & Son at maturity, and new notes (third set) given therefor between the 21st of February and the 24th of July 1857, which also were taken up by Mason & Son at maturity, and new notes (fourth set) given therefor between the 24th of July and the 2nd of November 1857, which last, or some of them, were not taken up. These notes were discounted by various parties, most of them being placed [**33]  by Mason & Son in the hands of McKim & Co., brokers, and sold by them at various rates, from six to twenty-four per cent., the legal interest on all amounting to $ 4433,98, and the extra interest to $ 3953.28, and the five per cent., deducted under the terms of the deed, to $ 7200. It was also proved, that, on the 24th of August 1857, Thomas Wilson purchased three of these notes, amounting to $ 6000, at twelve per cent., and on the 21st of September 1857, two others, amounting to $ 2000, at twenty-four per cent. These notes, so purchased, had been placed, by Mason & Son, in the hands of McKim & Co. for sale, and were sold by them to Wilson. It was also proved that Mason & Son kept a bank account with McKim & Co., and the latter, in almost all cases, advanced money to the Masons on the day they brought the notes there; on one or two occasions they left notes for sale and did not receive the money till they were sold, but this was when money was easy, and could not have been after August 1857. It was also proved, that part of the proceeds of these notes, $ 12,000, was paid by Mason & Son on the property, being the final payment thereon, to the Bank of Baltimore. The records of the judgments [**34]  in favor of Wilson and Wilson & Co., for the old indebtedness of Mason & Son to them, were also filed under the commission.

Upon the hearing of the motion to dissolve, the court (KREBS, J.) delivered the following opinion:

"Several questions have been discussed, upon the hearing of this motion, which it may be necessary for the court to decide at some future stage of this cause. Those only that have a bearing upon the enquiry, as to the validity of the deed of trust referred to in the proceedings, can properly claim consideration at this time. Can this deed then, be sustained by this court as a valid instrument of writing? I am of opinion, that there are no extrinsic facts or circumstances presented to the court in the record that show this deed to be void, and that therefore the question of its validity is to be decided by its terms and provision; in other words, if void at all, it is void upon its face.

"It is in form a deed of trust, intended to secure the payment of certain promissory notes that Thomas Wilson, and Thomas Wilson & Co., respectively, had agreed to loan to William Mason & Son, and also the payment of two sums of money, in which William Mason & Son were [**35]  formerly indebted to Thomas Wilson, and Thomas Wilson & Co., respectively. The deed provides, that Thomas Wilson shall loan his notes 'to an amount not exceeding, in all, at any one time, the sum of $ 18,000,' and that Thomas Wilson & Co., shall, in like manner, loan theirs, to the same amount, 'said notes so to be made payable at six months after date, respectively, and such loans of notes, to be so made, by the said Thomas Wilson and Thomas Wilson & Co., only during the periods of three and four years from the date of the first loan by the said Thomas Wilson, and the said Thomas Wilson & Co., respectively, to wit, loans to the whole amount as aforesaid, during the period of three years from the date of said first loans, respectively, and loans to the amount of 18,000 dollars, during one year thereafter.' The allegations in the bill, in regard to the pecuniary means of the Masons, and in regard to the extent of their property and effects at the date of this deed, not being denied in the answers, they must, on this motion, be assumed to be true, and I must, therefore, regard them as being at that time in insolvent circumstances, and as having little or no other property besides that [**36]  conveyed by this deed. This property consisted of a tract of land in Baltimore county, with several cotton factories thereon, and by the terms of the deed, the use and enjoyment of the whole was secured to the grantors, until they made default in the payments required thereby.

"This, then, is a deed given to secure advances to be made to an amount expressed by the parties on its face, and particularly mentioned to be secured thereby, and by thus specifying the amount they have fully complied with the requirements of the Act of 1825, ch. 50. Its validity cannot be questioned upon the ground, that it professes to be given as a security for future loans or advances. The authorities are abundant to show that securities by way of mortgages, or otherwise given for such a purpose, are perfectly valid. The case of Cole vs. Albers & Runge, 1 Gill 424, is a direct authority to show, that where the mortgage for such purpose specifies the amount to be covered, it is unimpeachable. The court there says: 'Such transactions the law was designed to meet; but not a case like this, where the amount is stated; where the world is apprised of its limits, and where the parties design to cover all [**37]  advances which may be made, to the extent of the sum limited in the mortgage.'

"But the peculiarity of this deed is, that it designates no specific time when the loans or advances that it provides for, shall commence. It stipulates that Thomas Wilson shall advance the amount of notes which he agrees to loan, during the period of three years only from the date of the first loan made by him; and that Thomas Wilson & Co. shall advance the amount of notes that they agree to loan, during the period of four years from the date of their first loan, but seems to contemplate that all the loans shall be made during a period of four years, from a date, however, which is left indefinite. The question therefore arises, can a party in the pecuniary condition in which the Masons were at the date of this transaction, convey nearly his entire property to another, professedly for the purpose of securing a specified amount of future advances, to be made during a long period of years, by a deed which designates no time when the advances are to commence? Is not such a deed open to the imputation, that it hinders and delays the creditors of the grantor?

"It is to be observed, that, by the provisions [**38]  of this deed, the possession and enjoyment of all this property is reserved to the grantors, until they make default in the payment of some of the notes to be loaned to them. It is therefore reserved to them for an indefinite time, inasmuch as there can be no default until after a loan, and no time is fixed for the loans to commence. The opinion of the Court of Appeals in this State, in regard to the vitiating effect of provisions in deeds of this character, that give to the grantor the use and enjoyment of this property conveyed, or otherwise protect it from his creditors for an indefinite time, is very clearly expressed in several cases. In Green & Trammell, vs. Trieber, 3 Md. 27, the court says: 'But the grantor reserves to himself the possession and enjoyment of all the property for an indefinite time, if the trustees should not think proper to sell,' &c. In The American Exchange Bank vs. Inloes, 7 Md. 391, the court says: 'A debtor cannot thus postpone his creditors to an indefinite period without their assent. A conveyance which thus attempts to deprive creditors of their just rights to enforce their claims against the property of their debtor, by placing it beyond their [**39]  control, for an uncertain and indefinite period, must be regarded in conscience and law as a fraud.' In the case of Arthur vs. the Comm. & Rail Road Bank of Vicksburg, 9 Sme. & Mar. 432, the court says: 'A far more important and serious difficulty, however, remains. These assignments are of indefinite duration.'

"It is a settled rule of decision in such cases, that any provision which materially hinders creditors in the assertion of their rights, especially when coupled with a reservation of any part of the property to the grantor in the deed, makes the whole void. They say of the deed in that case: 'Its direct tendency is to lock up the estate indefinitely, to hinder and delay creditors unreasonably.' It is difficult to conceive of a scheme, better calculated than that which is presented in the provisions and purposes of this deed, by which a dishonest debtor could withdraw his property from the reach of his creditors, and thus hinder and delay them. It would require nothing but concert between the parties to it, to be eminently successful. It stipulates for nothing to be done by the one party, until called upon by the debtor making the conveyance; the former pays no money in [**40]  the first instance, incurs no responsibility, but simply holds the legal title to the property conveyed, whilst the grantor enjoys the use and profits indefinitely, unless he should apply for an advance. It appears to me, that a deed, so framed, can only be regarded as having the effect of hindering and delaying creditors.

"It is said, however, in answer to the objection, that though no time is fixed in the deed for the advances to commence, yet the law would require the Masons to call for them in a reasonable time. It is true, that the parties to the deed, who are to make the advances, may perhaps be discharged from their liability, unless called upon in a reasonable time, but it is also true, that they may not choose to avail themselves of this right, and may continue to hold the property, waiting professedly for a demand to be made. This is precisely what would be done by parties to a deed, framed as this is, who would combine together for the dishonest purpose of hindering and delaying creditors. And further, conceding that creditors might be entitled to rely upon the ground, that their debtor had failed to exercise his rights, under a deed like this, within a reasonable time,  [**41]  and that therefore it ought not to be allowed to stand in their way any longer, they would be driven into a court of chancery to assert this privilege; they would be forced there, or in some other forum, to litigate the question of reasonable time, and such other issues as might be raised against them. The deed would stand as an effectual obstacle to the satisfaction of their claims, out of the property covered by it, until by such legal proceedings it should be annulled. All this would certainly operate a most practical and ruinous hindrance and delay to creditors. The law surely will not tolerate such obstacles, to hinder and delay creditors, as may be set up under a deed with such provisions as are found in this.

"I have considered this deed only as it appears upon its face, without taking into view any extrinsic circumstances, connected with the transaction, which it professes to carry out. I understand that the question, as to the validity of this instrument, is not to be decided by extrinsic circumstances. The rule upon this subject is so distinctly settled, by many decisions in our Court of Appeals, that it is only necessary to refer to that in which it was last considered,  [**42]  viz: Inloes vs. American Exchange Bank, 11 Md. 183. The court there refers to the different cases, in which the rule had been applied, and repeats it in the language in which it is expressed in those cases, as in Green & Trammell vs. Trieber, 3 Md. 11: 'We take it to be well settled, that an instrument, void in law for matter appearing upon the deed itself, cannot be made good by averment.' 'There is nothing for the jury to pass upon when the court can see, that the instrument is fraudulent on its face. We are to look to the character with which the law stamps the deed, without reference to extrinsic facts, as to motive. If the law declares such deeds to be void, it is no matter how the question of fraud, in fact, may stand.' So in Sangston vs. Gaither, 3 Md. 40, the court say: 'This view of the case,' that is, in reference to extrinsic facts, 'cannot change the character which the law gives to the assignment.' And in Malcolm vs. Hodges, 8 Md. 418, it was decided, 'that the validity of such deeds must be determined without regard to surrounding circumstances.' 'We cannot look outside the assignment to ascertain whether there will be a surplus or not. That would make [**43]  the efficacy of the instrument depend on extrinsic circumstances, when the law requires that its intent shall be gathered from its face.' After referring to these passages, the court at last says, in the case in 11 Md. 184, 'These principles are the settled law of this Court.' These principles and rules being so inflexibly settled by the court of highest authority, I am imperatively bound by them, and must close my eyes to all the extrinsic facts and circumstances of this case, and confine my view exclusively to the terms and provisions of the deed itself. Restricting my view within these limits, I am constrained to declare the opinion, that this deed is void and inoperative, as having the tendency and effect to hinder and delay creditors.

"I omitted to state in a former part of this opinion, that, in all the cases that have come to my notice, in which the courts have sustained the validity of deeds to secure future advances, a time was definitely fixed for closing the trust. See Cole vs. Albers & Runge, 1 Gill 412."

An order was then passed continuing the injunction till final hearing, and from this order the defendants, Wilson and Wilson & Co., and the trustees [**44]  appealed.  

DISPOSITION:
Orders reversed and cause remanded.  

HEADNOTES:

A deed of trust recited that W and W & Co. had agreed to loan the firm, of which the grantors were partners, their notes, from time to time, as may be desired by the grantors, to an amount not exceeding, in all, at any one time, $ 36,000, the notes to be payable at six months, and to be regularly taken up and retired at maturity by the grantors, and such loans of notes to be made only during the periods of three and four years from the date of the first loan, viz: loans to the whole amount of $ 36,000 during the period of three years from the date of the first loan, and loans to the amount of $ 18,000 during one year thereafter. The deed also recited, that the grantors were formerly indebted to W and W & Co., in the sum of $ 6663.64, which has not been paid, and in consideration of such unpaid indebtedness, the grantors have agreed to pay W and W & Co., to be credited on such old debt, a sum equal to five per cent. of the amount of each note so to be loaned, such amount to be paid as and when each note is loaned, till the transactions under the deed cease, or the whole of such old debt is extinguished. And, in order to save harmless the said W and W & Co., from all loss and injury in the premises, and to secure the payment of the amount of five per cent. as aforesaid, on the face of each note to be loaned, the grantors, by the deed, convey certain specified property to the trustees in trust, that upon the failure of the grantees to take up and retire any one or more of such notes as shall be so loaned, the trustees shall sell the property at public or private sale, as they shall see fit, and upon such terms as they shall deem proper, and apply the proceeds to pay, 1st, the expenses of the trust, including a commission of five per cent. to the trustees; 2nd, the notes loaned under the deed, and 3rd, the balance, if any, to the grantors. The deed also provides, that until the happening of the contingency, upon which they are to sell, the trustees shall permit the grantors to hold, use, occupy and enjoy the property, and receive the rents, issues and profits thereof, to and for their own use and benefit, and if the grantors perform their part of the agreement set out in the deed, then to re-convey the property to them discharged of the trust. HELD:

1st. That this deed is in the nature of a mortgage, and was intended to secure W and W & Co. the payment of their old debt, and the notes agreed to be loaned under the deed; it is not a conveyance for the benefit of creditors, nor an assignment of the property of the grantees for the payment of some or all of their debts.

2nd. It is not fraudulent in fact because it secures the payment of an old debt which was discharged under the insolvent laws, for the moral obligation to pay such debt remained, notwithstanding the discharge, and is a sufficient consideration to support a promise to pay it.

3rd. Nor does the mode, specified in the deed, of paying this old debt, render it fraudulent, there being no proof that this provision was merely colorable, and a device adopted by the parties to secure usurious interest on the notes loaned.

4th. Nor does the fact, that some of the notes loaned were purchased by W and W & Co., at a heavy discount, render the deed fraudulent, such purchases having been made eighteen months after the date of the deed, and from third parties, in whose hands the grantees had placed the notes, and who held them for sale in the market.

5th. The amount it was intended to secure is expressed in the deed, as required by the act of 1825, ch. 50, and there is no valid objection to it, either under this act, or because it was intended to secure future advances; deeds or mortgages, to secure future advances, if bona fide made, are good at common law.

6th. This deed being in the nature of a mortgage, the provision that the grantors shall remain in possession of the property till default made, does not render it void, as would be the case if the deed was a conveyance of the grantors' property for the payment of their debts.

7th. In the absence of all proof impeaching the bona fides of deeds or mortgages to secure future advances, such instruments are not within the operation of the statute against fraudulent conveyances.

8th. The terms of the deed, in respect to the power of sale conferred upon the trustees, are clear and explicit, and not in contravention of any principle of law, and there is no valid objection to the deed in this respect.

9th. The omission to state, on the face of the deed, the time when the first advances were to be made, does not render it invalid; in the case of a mortgage to secure future loans, it is not necessary to designate, in the deed, the length of time during which the loans are to be continued.

10th. To show the actual amounts loaned, and to fix the duration of the transaction by showing the time when the first loan was actually made, extrinsic proof is admissible, for such proof does not contradict the deed, or alter, in any respect, its legal operation and effect.

11th. This deed being to secure future loans, and having been recorded, the advances made under it are a lien on the property in preference to claims under a junior intervening incumbrance, though such advances were made after, and with notice of, such junior incumbrance. 

COUNSEL:
Geo. W. Dobbin and Reverdy Johnson for the appellants:

The deed of the 15th of February 1856, is assailed, 1st, because of fraud in fact, and 2nd, because of fraud in law, and 3rd, it is said, that the decree below is correct, because of an intervening equity in the appellees, paramount to that of the appellants under this deed.

1st. As to fraud in fact. The deed upon its face furnishes no evidence whatever of actual fraud; it was recorded the day after its date; the consideration is fully stated in it, and the responsibility assumed thereby on the part of Wilson and Wilson & Co., was very great, and utterly inconsistent with a design to perpetrate a fraud. It secures, and was designed to secure, an old debt. Is there any fraud in this? The proof shows, that the grantors themselves made the application for the loan, and the Wilsons had a perfect right to say, that before they made it they must be paid their old debt. Though discharged by the insolvent laws, this debt yet existed as a moral obligation, and any subsequent promise to pay restored it to all its former vigor; no principle is clearer than that an existing moral [**45]  obligation, coupled with an antecedent legal obligation, is a sufficient consideration for a valid and binding promise. Chitty on Contracts, 48, 49. 3 Bos. & Pul., 249, Wennall vs. Adney, and note. 7 Conn., 57, Cook vs. Bradley. Nor is there any evidence of fraud, in the mode in which the deed makes provision for this debt. If the money had been in hand, and paid by the Masons at the time this loan was effected and the deed executed, and as an inducement to its execution, there could have been no pretence of fraud. How then could an inducement given to the Masons to make the promise, and a pecuniary facility to comply with it, vitiate a transaction which, without such inducement, would have been legal and valid? If payment, or a promise to pay, voluntarily made by the debtor, would have been fair, how can there be any thing unfair in paying or in promising to pay, even if the request came from the creditor? And if there is no fraud in paying or promising to pay this old debt, in whole or in part, there can be none in securing its payment gradually as the deed provides. The only evidence of fraud outside of the deed, is the fact, that Wilson purchased three of these notes, and this,  [**46]  in connection with the reservation of five per cent. in discharge of the old indebtedness, is said to be usury, and as such evidence of fraud. These purchases were not made till nearly two years after the date of the deed. There is no pretence of usury in the inception of the transaction, and there was none in the purchase of these notes, for McKim & Co. had advanced on them, and had a right to sell them at any price they could in the market, to realize their advances. 1 H. & G. 482, Sauerwein vs. Brunner. 10 Md. 65, Williams vs. Reynolds & Smith. On the day of its execution, notes under this deed to the amount of $ 18,000 were issued, and if the Wilsons had designed a fraud, or to drive a hard bargain, why did they not purchase some of these during the seventeen or eighteen months they were in the market? That there was no usury as manifesting mala fides in the original contract, is evident from the fact, that the deed declares, that all of the old debt not paid by the five per cent. on each note loaned, shall still be considered as barred. The purchase of the notes, also, furnishes as little evidence of any original intent to defraud. But if the Masons or any one claiming [**47]  under them, seek to get rid of this deed by relying on usury, they must do what a court of equity requires in such cases. No advantage can be taken in equity of usury, except upon a tender of the principal and legal interest actually due, and usury being a mere statutory wrong affords no ground from which fraud in fact can be inferred. 6 G. & J. 18, Trumbo vs. Blizzard. 7 Gill 158, Carter vs. Dennison. 6 H. & J. 100, Lucas vs. Latour. And under the recent decision of this court, in Bandel vs. Isaac, no party has a right to come even into a court of law and plead usury, without tendering the amount really due with legal interest He can do this in no case either directly or incidentally to affect the question of fraud or otherwise. Nor does it make any difference, that the property embraced in this deed was all the property the Masons had at the time, for this cannot in any way affect the integrity of the deed. It did not make them one cent poorer than they were before. In the absence, then, of every title of evidence, to show any corrupt agreement between the parties, having for its purpose the delay, hindrance or defrauding of creditors, it cannot be said, that this deed [**48]  is void for fraud in fact. It is also to be observed, that the statute of 13th Elizabeth only avoids conveyances which are fraudulent and covinous, and originally intended to hinder, delay and defraud creditors, and that an innocent grantee, no matter how guilty the grantor may have been, is not within the provisions of the enacting clause of this statute.

2nd. As to fraud in law: In considering this question it must be borne in mind, that this is not an ordinary deed of trust or a voluntary assignment for the benefit of creditors, but is, in effect, a mortgage of specific property for a specific purpose, and the distinction between such conveyances is clearly pointed out in Green & Trammell vs. Trieber, 3 Md. 36. The decisions, therefore, in reference to deeds of trust fvr the benefit of creditors, have no application to the provisions of this deed. Hence, the stipulations that the grantors shall remain in possession, and that the surplus proceeds of sale, after satisfying the objects of the deed, shall be paid over to the grantors, are but the ordinary provisions in, and effect of, every mortgage, and are not fraudulent or evidence of fraud, so as to render the deed void,  [**49]  for if they do, then no mortgage can be valid. 3 Cranch, 89, United States vs. Hooe, et al. Nor can it be any objection to this deed that it secures future advances, for a mortgage, if made bona fide, may be for future advances as well as for an existing debt. 2 Johns. Ch. Rep., 304, Hendricks vs. Robinson. 5 Binney, 585, Lyle vs. Ducomb. 5 G. & J. 317, Clagett vs, Salmon. 1 Gill 423, Cole vs. Albers & Runge. 1 Pet., 448, Conrad vs. The Atlantic Ins. Co. This was the doctrine of the common law, and it has been modified by our act of 1825, ch. 50, only to the extent of requiring the amount to which the future advances may be made, to be stated in the deed, (1 Gill 423,) and this has been done in the present case. The only requirement to the validity of a mortgage, by the law of Maryland, is, that it shall be for a bona fide debt or liability, and that the amount shall be stated on the face of the mortgage. This deed being duly recorded, notified all the world of the extent to which it could be an incumbrance on the property, for it fixes a limit in amount beyond which the advances cannot be made under it. But the chief objection urged against this deed, by the appellees,  [**50]  is the alleged indefiniteness of the duration of the incumbrance. It is said this incumbrance is indefinite as to the time at which it may commence, because no period is specified within which the first loan under it is to be called for by the mortgagors. But there exists, on the face of this deed, a contract to loan, upon which suit could have been instituted by the mortgagors immediately upon its execution; and where no time of payment is specified in a mortgage, the law implies that it is to be paid in a reasonable time. 10 Md. 233, Farrell vs. Bean. 11 Md. 463, Triebert vs. Burgess. But if this be a valid objection on the face of the deed, still the evidence in the case shows that the first loans were actually made on the very day the deed was executed, and this being proved, the duration of the incumbrance becomes definite and fixed. Why is not such evidence admissible? The only ground on which it can be held inadmissible is, that it contradicts, varies or modifies the deed, so as to make it inconsistent with what appears upon its face. So far, however, from doing this, the evidence in question establishes the very existence of the deed by giving it operation and efficacy [**51]  at once. But the very point was decided in the case of Cole vs. Albers & Runge, and is no longer an open question in this State. A deed absolute on its face may be shown, by parol evidence, to be a mortgage. 1 Md. Ch. Dec., 178, Clark vs. Levering. Ibid., 536, Bank of Westminster vs. Whyte. 2 Md. Ch. Dec., 430, Thompson vs. Banks. 3 Md. Ch. Dec., 521, Ing vs. Brown. 10 Md. 217, Farrell vs. Bean. Again, it is said, that under this clause of the deed, the parties may combine to commit a fraud. But the question of collusion, in the absence of proof of actual fraud in this particular, has nothing to do with this case, unless a mortgage to secure future advances is, in every case, fraudulent, for in every such case the advances depend upon the borrower, and there may be collusion, and yet deeds of this character have always been held valid. Moreover, the deed being of record, notified every one of the amount of the mortgage, and put the appellees on inquiry as to what sum, if any, the Wilsons had advanced under it; and whatever is sufficient to put a party on inquiry is sufficient notice. 5 Conn., 446, Stoughton vs. Pasco. Again, it is objected, that inasmuch as the trustees would have [**52]  to be informed by the Wilsons when default was made, this might never be done, and the trust would thus continue forever. This argument assumes, that the Wilsons would never ask for the indemnity which they had taken, and might be urged with equal force against every mortgage for indemnity. For these reasons we respectfully submit, that this deed is not void for fraud in law.

3rd. As to the intervening equity: We have already shown that the deed, having been recorded, gave notice to these parties of the extent of the incumbrance on the property. When, therefore, the bond of conveyance, under which the appellees claim, was executed, they had notice of the prior deed, and that, by its terms, Wilson and Wilson & Co. had a lien to the extent of $ 36,000, on loans either then made, or which might thereafter, within the prescribed period, be made. It was, then, their own folly to trust to the security of the bond of conveyance, and that bond cannot operate to the exclusion of the lien under the prior deed. This point was decided in Gordon vs. Graham, 2 Eq. Cases, Abr., 598, and, also, in Lyle vs. Ducomb, 5 Binney, 585. Moreover, the notes loaned after the bond were but renewals of those [**53]  previously given.

S. T. Wallis and Geo. M. Gill for the appellees, argued:

1st. That the deed of trust of the 15th of February 1856, is invalid, fraudulent and void, and was made to hinder and delay creditors, because, as appears upon the face of it, it was made by insolvent parties, and embraced all their property, to secure the payment of certain notes to be thereafter loaned, but not within any given, fixed or definite period of time, and it was left to the grantors to retain the property thereby granted in their possession and use without incumbrance, until they should request the loan of the notes therein mentioned, and for three or four years after the first of the loans of these notes; that the loans of the notes ought, by the terms of the deed, to have been made within a reasonable time, and not left to the discretion of the grantors; and also, because the object and intent of the grantees Wilson and Wilson & Co., as apparent upon the face of the deed was unlawful, it being the manifest intention, to secure to themselves the payment of the notes to be loaned, and interest from the time they became due, and also a profit or bonus of ten per cent. per annum, upon such [**54]  loans of notes, and that while the grantors were to retain their property for an unlimited time subject to the agreement in the deed, these grantees were to be paid ten per cent. per annum, for the use of their names in the loans of such notes.

The objections apparent upon the face of the deed, and which, as we insist, render it void, are 1st, the indefinite period within which the first loan might be made, and the incumbrance therefore, commence, with possession of the property, in the mean time, in the grantors; 2nd, the indefinite time within which the trustees might be called on to sell; and 3rd, the reservation of the surplus to the grantors.

In considering these objections, the deed must, it is submitted, be construed upon its face, without reference to extrinsic circumstances, for though equity will, upon proof of fraud, mistake or surprise, rectify an agreement, according to the intent of the parties, yet it will not interfere where the instrument is such as the parties themselves designed it to be; if they voluntarily choose to express themselves in the language of the deed they must be bound by it, and where the question is one of fraud or not, extrinsic evidence [**55]  cannot be brought in to aid the deed. 2 Md. 35, McElderry vs. Shipley. The same doctrine was emphatically announced in the cases of Trammell vs. Trieber, 3 Md. 40; Sangston vs. Gaither, Ibid., 53; Malcolm vs. Hodges, 8 Md. 425, and Inloes vs. American Exchange Bank, 11 Md. 183, and the same case in 7 Md. 380. Nor is this deed to be regarded simply and exclusively as a mortgage; the appellants in their answer state, that the inducement to make it was to secure the old debt which had been discharged under the insolvent laws, and to do this they agreed to advance their notes to the amount of $ 36,000, in consideration of the advantages given them in the deed. But it matters not what the form of the instrument may be, provided its effect is to hinder and delay creditors, it is void. Can there be a doubt that such is the effect of this deed? There is no time specified within which the loans are to commence, nor when the sale is to take place. All this is dependent entirely upon the will of Wilson and Wilson & Co., on the one side, and the Masons, the grantors, on the other, and all this time the grantors remain in possession, and in case a sale should take place the [**56]  surplus is expressly reserved to them. A more perfect arrangement could scarcely be devised, by which property might be kept from the reach of creditors. For under it the parties have power by collusion to hold the property from the creditors of the grantors, for an indefinite period, whilst the latter retain its possession and beneficial enjoyment. That the law will not permit this to be done, the Maryland cases already cited clearly establish, and such are the decisions every where. 9 Smedes. & Mar., 432, Arthur vs. Commercial and Railroad Bank of Vicksburg. 1 Iredell, 497, Hafner vs. Irwin. 1 Iredell's Eq. Rep., 183, Kissam vs. Edmundson. 26 Ala., 185, Montgomery vs. Kirksey. 7 How., 278, Bodley vs. Goodrich. 15 Eng. Law & Eq. Rep., 528, Smith vs. Hurst. The case of Cole vs. Albers & Runge, is distinguished from this, that there the amount was not only fixed, but the deed itself by its own terms, prescribed the time within which the money was to be paid. It was definite both as to time and amount. Here the case is different, for though the amount is fixed, yet the time within which the loans are to commence is entirely indefinite. In the case of Shepard vs. Shepard, 6 Conn., 41,  [**57]  a mortgage to secure a note endorsed, and to be a security "for any and all other notes hereafter endorsed," was held, as to the latter stipulation, to be perfectly indefinite and void. And in Pettibone vs. Giswold, 4 Conn., 158, a similar provision in a mortgage was held to render it void as against the creditors of the mortgagor.

It is also insisted, that the evidence in the case, showing that Wilson purchased these notes at large discounts, taken in connection with the terms of the deed, securing as it does an old debt discharged under the insolvent laws, by taking out of each note loaned, a sum equal to five per cent. of the face of the note, and the fact of the insolvent circumstances of the Masons, clearly show, that the whole transaction was concocted and designed as a cover to conceal usury, and as a fraudulent hindrance and delay of creditors, and that the deed is therefore void for fraud in fact.

2nd. That the sale of the property conveyed by the deed, under the circumstances would result in loss, the title being under a cloud and doubtful, the purchaser not being able to get a good title under a deed tainted by usury, and fraudulent and oppressive in its terms.  [**58]  

3rd. That although complainants, in a court of equity, cannot ask to set aside a conveyance, on the ground of usury, without tender of principal and legal interest, yet they may seek to prevent a sale, while the title is doubtful and until it be ascertained, whether the transaction be usurious, fraudulent and oppressive or not. 1 Md. Ch. Dec., 473, Boyd & Hance vs. Harris. 3 Daniel's Ch. Pr., 1873.

4th. That the notes of Wilson and Wilson & Co., which were loaned under the deed prior to the sale of the property by Mason & Son, to Thomas M. Mason and others, and prior to the recording of the bond of conveyance given on such sale, having been retired and paid, and Wilson and Wilson & Co., having exacted another bonus of five per cent. commission, and having lent new notes after this sale and recording, and after notice to them of the sale, and after the negotiable notes of Thomas M. Mason and others, given for the purchase money, had been passed to the appellees, the priority on the part of Wilson and Wilson & Co., which they might have had, as respects the notes loaned prior to the sale, does not exist, but has been destroyed, and their interests are subsidiary to those of [**59]  the appellees.

The intervening equity thus set up is clearly sustained by decisions of the highest authority. 17 Ohio, 371, Spader vs. Lawler. 2 Barr., 96, Ter Haven vs. Kerns. 5 Johns. Ch. Rep., 326, Brinkerhoff vs. Marvin. 7 Cranch., 34, Shirras vs. Caig, et al. 2 Sandf. Ch. Rep., 78, Craig vs. Tappin. 3 Barb. Ch. Rep., 293, Bank of Utica vs. Finch. 2 Selden, 147, Truscott vs. King.

5th. That no sale of the property ought to be made until a decision be first had upon the two questions involved, one of usury and fraud in the deed, and the other of priority and preference, as between Wilson and Wilson & Co., and the appellees, and that while the cloud over the title, and the doubt, as to the mode of distribution, exists, no sale should be made, and, on this ground, the injunction should be continued; and that Wilson and Wilson & Co., having lost their right of priority, by making new advances and taking an additional commission, after the rights attached under the bond of conveyance, and after the assignment of the notes given under the bond, could not lawfully demand and require the trustees to sell, without the concurrence of the parties, obligees in the bond, and of the [**60]  holders of their negotiable notes.

6th. In transactions between mortgagor and mortgagee, the mortgage will be set aside, by a court of equity, as fraudulent, where it manifestly appears, that the mortgagee has taken advantage of the necessities of the mortgagor, and this is especially true where it appears, that the rights of subsequent encumbrancers are concerned. Hovenden on Frauds, 180, 181, 217. 9 Ves., 271, Chambers vs. Goldwin. 1 Sch. & Lef., 195, Drew vs. Power. 2 Md. Ch. Dec., 386, McDowell vs. Goldsmith.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*528]  BARTOL, J., delivered the opinion of this court.
Several objections to the validity of the deed of trust, of the 15th of February 1856, have been urged by the appellees, which it is necessary for us first to consider in the decision of this appeal. That deed is in the nature of a mortgage, and was intended to secure to Thomas Wilson and Thomas Wilson & Co., the payment of certain sums of money, which William Mason & Son (the mortgagors) formerly owed them; and also to secure the payment of certain promissory notes, which the said Wilson and Wilson & Co., respectively,  [**61]  agreed to loan to said Mason & Son.
It has been assailed as fraudulent in fact, upon two grounds, first, because it secures the payment of debts which W. Mason & Son were not legally bound to pay, they having before been discharged therefrom under the insolvent laws; and secondly, because some of the notes loaned under the mortgage were afterwards purchased by Thomas Wilson, one of the mortgagees, at large discounts, much greater than the legal rate of interest.
The old debt had never been paid, the moral obligation to pay it remained, notwithstanding the release of the debtors under the insolvent laws; and there is no principle better established than that such moral obligation is a sufficient consideration in law to support a promise by the debtor to pay the 

 [*529]  debt. See Chitty on Contracts, 48, 49, and the cases collected in 3 Bos. & Pul. 249, note, and also 7 Conn. 57, where the rule is perspicuously stated.
If Mason & Son were under a moral obligation to pay the old debt, their agreement to secure the same, or any part of it, cannot render the deed fraudulent. The stipulation with regard to the payment of the old debt is, that [**62]  a sum equal to 5 per cent. of the amount of each note so to be loaned, by Thomas Wilson and Thomas Wilson & Co., shall be paid by W. Mason & Son, such payment to be made when each note is loaned, and to be applied toward the extinguishment of the old debts.
This provision is somewhat novel, and it has been contended, on the part of the appellees, that it is merely colorable, and is a device adopted by the parties for securing usurious interest upon the notes loaned. In our opinion, the record contains no evidence in support of this view. It is not pretended that the pre-existing debt was not real and bona fide. There would have been no fraud in securing the payment of the whole of it, how then can fraud be charged on account of any provisions in the deed, whereby it is secured to be paid, from time to time, and by small instalments?
Nor do we find any proof or indication of fraud in the fact, that some of the notes loaned were purchased by Wilson at a heavy discount. Those purchases were made from third parties, in whose hands Mason & Son had placed the notes, and who held them for sale in the market; they were made in August and September 1857, eighteen months after the execution [**63]  of the deed, and there is no proof in support of the charge, that at the time of the execution of the deed, there was any intention, on the part of either Thomas Wilson or Wilson & Co., to buy the notes at a discount.
The record furnishes no evidence in support of the sixth point made by the appellees; the arrangement was entered into voluntarily, on the part of Mason & Son; no advantage appears to have been taken of their necessities, by the mortgagees; on the contrary the latter assumed very heavy pecuniary responsibility, the benefit of which was derived by the former; 

 [*530]  and so far as the circumstances attending the transaction are disclosed, there was nothing inequitable in its terms.
There being no sufficient evidence to establish fraud in fact, in the execution of the deed, we are next to inquire whether it is fraudulent and void in law?
The amounts which it was intended to secure are expressed in the deed, as required by the Act of 1825, ch. 50, and we concur with the judge of the circuit court in saying, that no valid objection can be made to it, either under that act, or by reason of its being intended to secure future advances. Deeds to secure future loans or [**64]  advances, if bona fide made, have always been sanctioned by the common law, and if unexceptionable in other respects, their validity cannot be questioned in Maryland. See Cole & Albers vs. Runge, 1 Gill 412.
Much stress has been laid upon the fact, that by the terms of this deed, the possession of the property was to remain in the grantors, until default should be made by them, in the payment of one or more of the notes, to be loaned and advanced to them. Such a provision, it is said, is in effect a conveyance of property for the use and benefit of the debtors, and therefore void under the statute of 13th Elizabeth, as tending to "delay, hinder or defraud creditors."
If it were a conveyance of the debtors' property, for the payment of their debts, such a reservation would avoid the deed. This has been repeatedly decided by this court. See Green & Trammell vs. Trieber, 3 Md. 11. Sangston vs. Gaither, Ibid., 40. Malcolm vs. Hodges, 8 Md. 418.
But this is not a conveyance for the benefit of creditors; it is not an assignment of the property of the grantors, for the payment of some or all of their debts. It is [**65]  in the nature of a mortgage, and in such an instrument, a stipulation that the mortgagors shall remain in possession, is no evidence of fraud. "If that were so, then no mortgage could be valid." United States vs. Hooe, 3 Cranch. 73. In the case of Green & Trammell vs. Trieber, this court has said: "We must observe the distinction between conveyances of the whole or a part of the debtor's property, as a security for particular debts, on an 

 [*531]  agreement with the creditors for further time, and voluntary conveyances by debtors for the payment of their debts; the latter the law presumes to be executed, with reference to the benefit of the creditors, and not to the advantage of the debtor." "In one class, the object is to gain time for the debtor, by agreement with the creditor, in which it is quite consistent with the nature of the transaction, that the former shall keep possession. In the other, the debtor offers his property to his creditors in payment of their claims, or for distribution, according to such priorities as he may prescribe. Payment being the professed object of the assignment, it must not contain any provision to defeat or hinder this [**66]  purpose, beyond such reasonable delay, as may be incidental and necessary to the proper execution of the trust." 3 Md. 36.
It is very important in this case to keep this distinction in view. Many of the principles and decisions, cited by the appellees, are applicable only to deeds of the latter description; while the instrument before us belongs to the former class of conveyances. It is a mere security for debts due and to be incurred; and so far from operating to defraud, hinder or defeat the claims of other creditors, its legal operation was to grant time to Mason & Son, and to increase their means and ability to meet their responsibilities, while their property remained responsible for the claims of their other creditors, subject to the lien of the mortgagees.
It seems to us to be no well founded objection to such a deed, that it might afford an opportunity for fraudulent collusion, between the mortgagors and mortgagees, whereby the property might seem to be liable for a large sum and not, in fact, be liable at all, as if the notes were not called for. The same objection might be made to every mortgage to secure future advances; parties may make corrupt bargains [**67]  in any case. But in the absence of all proof, impeaching the bona fides of the transaction, such instruments are not within the operation of the statute against fraudulent conveyances.
Some objection has been made to the deed, on the ground that the power of sale conferred upon the trustees, in case of default, is vague and indefinite, but we do not consider this 

 [*532]  objection as well founded. The terms of the deed, in this respect, are clear and explicit, and no authority has been produced, to show that they are in contravention of any principle of law. Nor do we concur in the view presented by the appellees, that the omission to state, on the face of the deed, the time when the first advances were to be made, renders the deed invalid. The advances were to be made "from time to time, as may be desired by Mason & Son," and were to be continued for a specific period "from the date of the first loans." It is said, that the omission to state in the deed the time of the first loan, makes the period of the duration of the transaction, indefinite, and that this avoids the deed.
No valid objection can be made to a mortgage, on account of the length of time it has to run;  [**68]  nor can we see any reason why, in the case of a mortgage to secure future loans, it is necessary to designate, in the deed, the length of time during which the loans stipulated for are to be continued. There is no such requirement in the Act of 1825. In this case, however, if it were material for the appellants to show the length of time, during which the transactions were to continue, we have no doubt, that it is perfectly competent for them to rely, for that purpose, upon the proof in the cause. This proof is not excepted to, and no exception to it could have been sustained if made; it was offered by the appellees and shows, that the first loans were made on the 15th of February, the day on which the deed bears date. Several decisions of this court have been cited, for the purpose of establishing the proposition, that the validity of a deed executed by a debtor, for the benefit of his creditors, must be determined by the face of the instrument, and does not depend upon extrinsic circumstances, or in other words, that if a deed be fraudulent in law, for matter appearing upon the instrument itself, it cannot be made good by averment. This proposition is no doubt well established,  [**69]  but it is not applicable to the question before us. Here the deed is not void in law, for want of a definite statement, on its face, of the time when the first loans were to be made, or of the period, during which they were to continue. The deed provides for a continuance of the loans of notes, to the amount of 

 [*533]  $ 36,000, for three years after the time of the first loan, and of $ 18,000, for one year longer.
To show the actual amounts loaned, and to fix the duration of the transaction, by showing the time when the first loan was actually made, extrinsic proof may be offered; such proof does not contradict the deed, or alter, in any respect, its legal operation and effect. In the case of Cole & Albers vs. Runge, 1 Gill 412, the deed purported, on its face, to be for and in consideration of $ 10,000 in hand paid to the grantors, and contained a proviso for the payment of $ 10,000, with interest by a certain day, and it was held, that parol evidence was admissible for the purpose of showing that the deed was made to secure advances made, and to be made, to the mortgagors, to the extent of $ 10,000. The principle upon which that decision was put is [**70]  equally applicable here, viz., that the evidence did not "have the effect of changing the character and legal operation of the deed."
The evidence in the cause shows, that after the date of the deed of trust, Thomas Wilson and Thomas Wilson & Co. went on to loan their notes to William Mason & Son, from time to time, according to their agreement; the transactions, so far as these loans are concerned, commenced on the 15th of February 1856, and ended on the 2nd of November 1857. On the 22nd of November 1856, William Mason & Son sold the property mentioned in the deed of trust, and executed a bond of conveyance of that date to Thomas M. Mason, Charles C. Grafflin and Charles Mason, by which they agreed to sell the said property for $ 127,556, and received therefor, from the purchasers, ten promissory notes, amounting in the aggregate to that sum, with the interest thereon. The bond of conveyance was duly recorded on the 1st day of December 1856, and contains the following stipulation:
"But in case of any default in payment of the aforesaid promissory notes, or any of them, then it is hereby declared to be the agreement of the parties to these presents, the entire indebtedness, on account [**71]  of all the aforesaid promissory notes, shall then be considered due and demandable, at any time, by the obligors on the bond," and then, and in that case, authority 

 [*534]  is given to the obligors to proceed and sell the land, property and premises, and apply the proceeds of sale to the payment of said notes.
It appears that one of the promissory notes, mentioned in the bond of conveyance, was passed, by Mason & Son, to the Bank of Commerce, and that three of them were passed to J. B. Russell and T. P. Russell, who passed them to C. W. Ellis.
At the time of the execution and recording of said bond of conveyance, there were outstanding notes loaned by Wilson and Wilson & Co., under the deed of trust, to the amount of $ 36,000; these were afterwards paid by W. Mason & Son, and other notes, to the same amount, were loaned to them, which were also paid, and then, between the 24th of July 1857 and the 2nd of November 1857, other notes, to the amount of $ 36,000, were loaned and advanced by said Wilson and Wilson & Co., to Mason & Son, under the deed of trust, and default having been made in the payment of these last notes, or some of them, the question arises, whether the appellants,  [**72]  Wilson and Wilson & Co., are entitled to a priority of lien upon the property over the appellees, who claim under the bond of conveyance?
This question arose in the case of Gordon vs. Graham, 7 Vin. Abr. 52 E. Plac., 3 and 2 Eq. Cases Abr. 598.
That case is thus stated in Viner: "A. mortgages to B. for a term of years to secure the sum of ----- already lent to the mortgagor, as also such other sums as should hereafter be lent, or advanced to him. Afterwards A. makes a second mortgage to C. for a certain sum, with notice of the first mortgage, and then the first mortgagee having notice of the second mortgage, lends a further sum, &c. The question was, upon what terms the second mortgagee shall redeem the first mortgage?
"Cowper, Lord Chancellor, held, 'that the second mortgagee shall not redeem the first mortgage, without paying all that is due, as well the money lent after, as that lent before the second mortgage was made; for it was the folly of the second mortgagee, with notice, to take such a security.'"

 [*535]  A contrary principle seems to have been decided by a majority of the Supreme Court of Ohio, in Spader vs. Lawler, 17 Ohio 371. [**73]  We think there is great force in the opinion delivered by the dissenting judge in that case. The ruling of the court however, was based somewhat upon the effect of the statute of that State relating to mortgages, and is not strictly applicable here.
With the exception of Spader vs. Lawler, we have seen no case overruling the decision in Gordon vs. Graham. It is cited as authority by Powell, in his learned work on mortgages vol. 2, page 533, and by Coote, in his law of mortgages, (69 Law Lib. 487.) Mr. Coventry, in his notes to Powell, vol. 2, pages 533, 534, suggests some doubts as to the soundness of the principle of Gordon vs. Graham, but concludes his remarks by saying, "that he individually places but slender dependence in the force of their application." See Gibson vs. Ingo, 6 Hare., in 31 Eng. Ch. Rep. 112.
In the case of Brinkerhoff vs. Marvin, 5 Johnson's Cases in Chancery, 326, Chancellor Kent, after citing Gordon vs. Graham, and Shirras vs. Caig, (7 Cranch 34,) says: "Again, in Livingston vs. M'Inlay, 16 Johns. Rep. 165, the Supreme Court (of [**74]  N. Y.) observed, that if it was a part of the original agreement, a judgment may be entered as a security for future advances, beyond the amount then actually due, in like manner as a mortgage may be held as a security for future advances. The limitation to this doctrine, I should think, would be, that when a subsequent judgment or mortgage intervened, further advances after that period could not be covered."
But the same learned chancellor in his commentaries, vol. 4, page 175, says: "So a mortgage or judgment may be taken, and held as a security for future advances and responsibilities, to the extent of it, when this is a constituent part of the original agreement, and the future advances will be covered by the lien, in preference to the claim under a junior intervening incumbrance, with notice of the agreement."
Upon this question there is some conflict of authority, but after an examination of the cases cited at the bar, and some 

 [*536]  others, we are of opinion that the weight of authority sustains the principle established in Gordon vs. Graham.
The subject of mortgages securing future advances has been elaborately considered in many cases, of which a number [**75]  are clearly reviewed in Truscott vs. King, 2 Selden's Rep., 160, 161. An examination of that case will show, that at common law a mortgage bona fide made, may be for future advances, as well as for present liabilities. Our Act of 1825, modifies the common law only in the particular which we have mentioned.
If the junior creditor may, "by inspection of the record, and by common prudence, ascertain the extent of the incumbrance," the first incumbrance must prevail.
It results from what has been said, that the deed of trust of the 15th of February 1856, is a valid and binding instrument, and that the mortgagees therein named, Thomas Wilson and Thomas Wilson and Company, are entitled to have the land and premises and property, therein described, sold by the trustees named in said deed; and the proceeds of such sale applied in accordance with the provisions of the deed; and that the claims which may be due from William Mason and Son, for and on account of the notes loaned to them under said deed, are entitled to be paid out of the proceeds of such sale, in preference to the claims due the complainants. A decree will be passed reversing the order of the Circuit court granting [**76]  the injunction, and the order continuing the injunction, and the cause will be remanded.
Orders reversed and cause remanded. 

174 of 196 DOCUMENTS 

ADAM SHOOP and SAMUEL LEFEVER vs. UPTON POWLES.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

13 Md. 304; 1859 Md. LEXIS 29 

April 28, 1859, Decided 

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

This was a proceeding under the lien laws, in favor of mechanics and others, applicable to Washington county, being the acts of 1842, ch. 183, and 1846, ch. 290.

The appellants furnished lumber to the appellee, the builder and contractor, for a certain house built by him for Christian Winters, the owner, and on the 22nd of April 1856, filed their claim for a lien in accordance with the above laws. This claim consists of an account for lumber, verified by affidavit, and amounting to $ 151.75.

On this lien a scire facias was issued on the 13th of November 1856, and upon the return of this writ, Winters, the owner, appeared and pleaded, as a defence thereto, that there was a special contract between himself and Powles, the contractor and builder, by which he, Winters, was to pay Powles a specific sum of money for the erection of the building, upon the completion thereof, and that upon the completion of the said building by Powles, he, Winters, according to said contract, and without any notice or knowledge of the existence of the plaintiffs' claim, and before the filing thereof, paid Powles the full amount of the balance [**2]  of the money that was then due and owing to him on said contract, so that he owed him nothing, on account of the said building, at the time the plaintiffs' claim was filed, and that the plaintiffs did not give him, Winters, notice of the amount of their said claim for materials furnished before, and not until long after, he had paid Powles in full.

To this plea the plaintiffs filed a general demurrer, on which Winters joined issue. The court, (PERRY, J.,) holding the plea to be sufficient, overruled the demurrer and gave judgment in favor of Winters for costs, from which the plaintiffs appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

Under the mechanics' lien laws of 1842, ch. 183, and 1846, ch. 290, applicable to Washington county, it is not necessary for the material-man, in order to secure his lien on the building, to give notice of his claim to the owner, because these acts do not, either in express terms, like those applicable to the city of Baltimore, or by fair legal construction, require such notice as essential to the validity of the lien.

The 4th section of the act of 1846, ch. 290, only enables the owner, in any case in which he may have notice, to retain from the claim of the contractor the amount due the material-man, and in case liens are laid by both for their respective claims, to deduct from the former what may be due the latter.

Where there is a demurrer in the old form, without particularly expressing "the cause of the same," nor containing "any specific statement of some point of law showing in what respect the pleading is insufficient in substance," as required by the act of 1856, ch. 112, sec. 37, joining issue thereon is a waiver of any objection which might be made to it under this act.  

COUNSEL:
D. Weisel for the appellants.

The only question presented by the demurrer in this case is, whether the 4th sec. of the act of 1846, ch. 290, requires a person furnishing materials to a contractor, in order to secure his lien on the building, to give notice of his claim to the owner before payment by the latter. It is insisted, on the part of the appellants, that no such notice is necessary, but that the claim is operative without it, if the other requirements of the lien laws have been complied with. The only object and purpose of that [**3]  section is, to enable the owner, in any case in which he may have notice, to retain from the claim of the contractor or cost of the building, the amount due to the material-man, and in case liens are laid both by the materialman and the contractor, to deduct from that of the latter what he may owe to the former. It does not, in terms or in spirit, require such notice to be given as essential to the validity of the lien of the material-man upon the building. That this is the true construction of this section seems to be apparent from secs. 1, 10 and 14 of the original act of 1842, ch. 183, and the 3rd section of that of 1846, as well as from the peculiar phraseology of the 4th section itself. It is still more apparent by a contrast of these laws with the mechanics' lien laws for Baltimore city, (Acts of 1838, ch. 205, sec. 9; 1845, ch. 176, sec. 1, and 1845, ch. 287, sec. 8,) which provide for and require, in express terms, a notice from the material-man to the owner, as a condition precedent to his lien. There is no such provision in the laws in question, and the Legislature must have omitted it from design, and by so doing they have said, in effect, that the lien shall exist without [**4]  the notice.

These laws are to be construed as remedial in their nature, and so as to protect those whom they were designed to benefit. This court has so held, in general language, though in cases arising under the Baltimore laws. 10 Md. 268, Hess, Reid, et al., vs. Poultney. 3 Md. 176, Okisko Co. vs. Matthews.

R. H. Alvey for the owner.

It is the 4th sec. of the act of 1846, ch. 290, upon which the owner particularly relies to sustain his plea. That section provides, "that in all cases in which a contractor or builder of a building shall have purchased materials or contracted for work, and the party from whom such purchase has been made, or with whom such contract for work has been made, shall have given notice to the owner of the building, of the amount due him, and whether for work done or materials furnished, it shall and may be lawful for such owner to retain from the cost of such building, the amount which he may ascertain to be due to the party giving such notice," &c. This seems to be a literal copy of the 8th section of the act of 1845, ch. 287, relating to the city of Baltimore. The lien laws for Washington county contain no such provision as those for [**5]  Baltimore, requiring them to be construed liberally and as remedial. They are to be treated as acts in derogation of the principles of the common law, and, therefore, to be strictly construed in favor of those whose rights they affect. If there be a doubt as to their proper construction, the benefit of that doubt must be given to the party who is sought to be charged contrary to the principles of the common law, "for it is not to be presumed that the Legislature intended to make any innovation upon the common law further than the case absolutely required. The law rather infers that the act did not intend to make any alteration other than what is specified, and besides, what has been plainly pronounced." 12 Md. 464, Hooper vs. Mayor & C. C. of Balto. Dwarris on Statutes, 695.

The facts stated in the plea are admitted by the demurrer. The money for the erection and completion of the building was paid to the contractor before notice was given the owner of the existence of the plaintiffs' claim, and before it was filed in the clerk's office. The law does not presume that the owner has knowledge of the state of the accounts between the material-man and the contractor, nor can it [**6]  be presumed that the owner knew of the existence of any claim for materials. He is not required to ascertain by inquiry the material-men who have dealt with the contractor, nor to give them notice of the completion of the work, or termination of the contract, in order to protect himself against the contracts of the builder. The liability of the owner is created, not by his own act, but by law, and must, therefore, rest solely upon the terms of the law, one of which is, that the party having the claim against the contractor, either for materials or work, shall give notice to the owner of the amount due, in order that the owner may indemnify himself by retaining a sufficient amount of money due the contractor. 4 Md. 296, Greenway vs. Turner.

If the law does not presume notice, on the part of the owner, of the existence of claims for materials furnished the contractor, by what authority or right could such owner retain money in his hands, due the contractor, to meet the possible demands of material-men? In the case of Thomas vs. Barber, 10 Md. 380, this court, in construing the 8th sec. of the act of 1845, ch. 287, (and of which the 4th sec. of the act of 1846, ch. 290, is [**7]  a literal copy,) have said: "That section gives the owner, who receives notice of a lien claimed for materials, the right to retain, out of the cost of the building, as between himself and the contractor, the amount which he may ascertain to be due to the party giving such notice." This provision is an equitable one and designed for the protection of the owner. Requiring such a notice to be given, as will render the law practically useful to him, imposes no hardship upon a materialman or mechanic, whilst it only secures to an owner what the Legislature evidently intended for his benefit. The case just quoted, it is submitted, is conclusive of this.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*308]  BARTOL, J., delivered the opinion of this court.
The question presented by this appeal is, whether, by the lien laws for Washington county, a person furnishing materials to a contractor, for a building, is required, in order to secure his lien thereon, to give notice of his claim to the owner of the building before payment by the latter to the contractor. This question depends upon the construction of the acts of 1842, ch. 183, and 1846,  [**8]  ch. 290. By these acts every building erected in Washington county is made subject to a lien for materials furnished for its construction; and the proviso to the 

 [*309]  1st section of the act of 1842 having been repealed by the 1st section of the act of 1846, the lien may be enforced, whether the materials be furnished to a contractor or to the owner. In this case it is conceded, that all the requirements of the acts have been complied with, except the preliminary notice to Winters, the owner, by the appellants, of their intention to claim a lien. Such a notice, it is contended by the appellee, is made necessary by the 4th section of the act of 1846. We are of opinion that this section cannot properly receive such a construction; adopting the language used by the appellants in their brief, we think the only purpose and effect of that section is "to enable the owner of a building, in any case in which he may have the notice, to retain from the claim of the contractor the amount due the material-man, and in case liens be laid, both by the contractor and the material-man, upon the building, for their respective claims, to deduct from that of the former what may be due to the latter.  [**9]  " But neither that section, nor any other provision of the acts, requires, in terms, or by fair legal construction, that such notice should be given as essential to the validity of the lien of a material-man upon the building.
The hardship and loss, which it is contended such a construction of the law inflicts upon the owner, may be obviated, as it might have been avoided by the appellee in this case, by so framing his contract as to allow him to retain in his hands, during the period limited by the act for filing liens, a sufficient amount to meet all possible liens thereon; or by requiring indemnity against such claims before paying the money on his contract. What was said on this part of the case by the appellee's counsel, in the argument, might more properly be addressed to the Legislature. In such a case as this, it would be well, we think, for the law to require some notice to the owner; such has been the usual course of legislation in Maryland, as well as in other States where lien laws have been passed. By the act of 1838, ch. 205, and its supplements, regulating mechanics' liens in the city of Baltimore, previous notice to the owner is, in express terms, required, in order [**10]  to make the lien operative in a case like this. But in the acts of 

 [*310]  1842 and 1846, no such provision is to be found. The decision of this court in Thomas vs. Barber, 10 Md. 380, so much relied on by the appellee, was made with reference to the provisions of the act of 1838 and its supplements, and has no application to this case. We dissent from the ruling of the circuit court upon the demurrer and reverse the judgment.
In deciding this case, we have not failed to notice the provisions of the act of 1856, ch. 112, secs. 36, 37, regulating the form of demurrers. Here the demurrer is in the old form; it does not "particularly express the causes of the same," nor contain any "specific statement of some point of law, showing in what respect the pleading is insufficient in substance," as required by the act. But no objection was made by the defendant, in the court below, to the form of the demurrer; the record shows that it was overruled, not because of any want of compliance, in form, with the act of 1856, but because the circuit court held the plea to be sufficient. Moreover, the defendant joined issue upon the demurrer, and we consider that he has thereby [**11]  waived any objection which might have been made thereto, under the 36th and 37th sections of the act of 1856.
Judgment reversed and procedendo ordered. 

175 of 196 DOCUMENTS 

EDWIN A. ABBOTT vs. CONDUCE GATCH.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

13 Md. 314; 1859 Md. LEXIS 31 

April 28, 1859, Decided 

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

Assumpsit, brought on the 11th of April 1855, by the appellee against the appellant, for work done and materials furnished by the plaintiff, in and about the construction of certain mill machinery for the defendant. Plea, non assumpsit.

The plaintiff, upon call of the defendant, filed a bill of particulars, claiming for millwright work done in warehouse on East Falls Avenue, as per contract, $ 5000, and for extra work and materials, and for work put up and taken down and altered by order of the defendant, $ 674.90, making in all $ 5574.90, and leaving a balance, after deducting credits, including Millholland's bill of $ 1800, alleged to have been paid without the order of the plaintiff and subject to alteration, of $ 1574.90. The defendant also filed three accounts in bar and as a set-off, claiming, among other things, $ 2261.47, as damages in not completing the mill as per contract, by which the defendant failed to grind 39,675 bushels of wheat and elevate the same. It was agreed that all errors in pleading are waived on both sides.

1st Exception. The plaintiff offered in evidence and proved a written contract between [**2]  himself and the defendant, and the drawings and plans connected therewith. This contract was dated in March 1853, and by it "Gatch agrees to build and put up, in the best manner, in said Abbott's warehouse, on city block, four run of four and a-half feet burr mill-stones, together with the necessary bolts, elevator and rubber, in complete working order, and to guarantee the same so far as the material and work are concerned, to make the best article of wheat flour; also to put up an elevator to take the grain from the edge of the wharf, on the east side of the building, into the third story of the same; said Gatch to do all the work and to furnish all the materials above the first floor, as per his drawings made for said mill, and have the whole complete and ready for use on or before the 15th of June next, for the sum of $ 5000, to be paid" in the manner therein specified, and "said Abbott agrees to attach said mill to them, and to furnish said Gatch every facility to complete said work in the shortest time, to furnish said Gatch with such materials as he may have, at the lowest prices it can be procured at for cash; also, that the above payments be made punctual; no extra charges [**3]  to be made unless a written agreement be made and attached to this contract." The plaintiff then offered evidence, which was taken subject to exceptions, tending to show:

1st. That according to the drawings, the main conveyor was to be put upon the lower floor, and that, at the instance of the defendant, it was put on the floor above, and for want of fall would not work well in that situation, and was afterwards removed to its proper place below, and that the cost of this change was about $ 40.

2nd. That a patent smut machine or rubber, of a new pattern, was put into the mill by the direction of the defendant, and against the opinion of the plaintiff, and that this rubber was not good and would not work, and was afterwards taken out and another put in, and that the cost of doing so was about $ 100.

3rd. That a branduster was put into the mill, and that a branduster was not then a usual or necessary part of a mill, and that the best article of wheat flour could be made without it, and that the one in question was put in at the instance of the Messrs. Wardens, acting under the permission of the defendant, and that the cost of putting it in was about $ 134.50.

4th.  [**4]  That instead of the usual square packing box, there was put in the mill, by the defendant's direction, a round packing box with self-packing machinery, which would cost about $ 100 more than the ordinary one.

There was also proof, that the defendant was generally there during the progress of the entire work, and that when the work on the machinery was begun, there were but two engines of thirty and fifteen horse power in the mill, and that an additional engine of sixty horse power was put in, while the work on the machinery was going on. It was also proved, that T. and H. Warden had made a contract with the defendant, by which they agreed to rent the mill, when completed, (which was to be by the 1st of July 1853,) upon the terms, that they were to employ and pay the labor and furnish one hundred thousand bushels of wheat each year for grinding, and to pay the defendant eight cents per bushel for grinding, and seventy cents per hundred bushels for the elevator carrying the grain from the wharf into the third story of the mill; all the expenses of labor, fuel or repairs, paid by them, to be charged to the defendant and deducted from this sum; and that they would have been prepared [**5]  to fill their part of this contract if the mill had been ready.

It was also understood between the plaintiff and the defendant, that J. G. Millholland should be substituted in the place of the plaintiff, in respect to the cast and wrought iron work to be made for the mill by the plaintiff under his contract, and a contract under seal was executed by the defendant and Millholland, witnessed by the plaintiff, and dated the 3rd of March 1853. This contract was offered in evidence, and by it Millholland agreed to furnish, at the prices therein specified, all the cast and wrought iron work for the mill, and all "to be done by the 15th of June 1853."

Evidence was also offered, showing that no flour was got from the mill in July or August; that in August the mill worked badly, that the rubber was an inferior one, and the conveyor choked up next the burrs for want of fall, but when the changes in these were made as above stated, the mill worked finely, and was now making nine hundred barrels of flour per week. It was also proved on the part of the plaintiff, that if the iron work for the mill was all ready on the 15th of June, it would take from thirty days to six weeks to put it [**6]  up.

The defendant then objected to the admissibility of the evidence offered on the part of the plaintiff, for the purpose of establishing any claim for any amount over and above the contract price of $ 5000. The evidence objected to, was the cost of erecting the branduster, of putting up the main conveyor as first erected, and of removing it and putting it as last put up; of putting up the first smut machine, or rubber, and taking it down; of putting up the second smut machine, and of the alleged change in the form of the packing box. The court (Presstman J.,) sustained the objection as to the cost of putting up the conveyor as first erected, and of putting up the first smut machine, but overruled it as to the other evidence. The defendant excepted to so much of this ruling as permitted evidence to go to the jury of the cost of erecting the branduster, of removing the main conveyor, and placing it as last put up, of taking down the first smut machine or rubber, and of putting up the second one, and of the alleged change in the form of the packing box.

2nd Exception. The defendant then offered proof of payments, as shown by his accounts in bar, and through the Wardens, as [**7]  shown by his orders on them, and the notes they gave, which were also offered in evidence. These orders and notes were, many of them, including those endorsed by Millholland, and constituting payments to him, dated after the 15th of June 1853. The plaintiff then asked instructions, in substance as follows:

1st. That the defendant cannot set-off, in this cause, the damages claimed by him for the non-completion of the mill by the 15th of June 1853, as specified in his account, filed as a set-off in this case.

2nd. That the defendant is not entitled to recoup in this cause, the damages alleged to have been sustained by him by failing to grind $ 39,675 bushels of wheat under his contract with the Wardens, by reason of the non-completion of the mill on the 15th of June 1853, even if the jury find that such failure to grind did take place, and was caused by the non-completion of the mill.

3rd. If the jury find the execution of the contract of March 1853, between Millholland and the defendant, and that after the making and delivery of the iron work therein mentioned, it would require some time to put up the machinery and complete the work in the mill, and that after the 15th [**8]  of June 1853, the defendant, from time to time, made the payments to the plaintiff of moneys due the latter under his contract of March 1853, as said payments have been offered in evidence by the defendant, and that, after the completion of the mill, the defendant accepted the same, then he has waived his right to have the mill completed by the 15th of June 1853, and cannot recoup, in this cause, the damages alleged to have been suffered by him in consequence of its non-completion at that date.

4th. That if the delay in the completion of the mill was the result of the conduct of the defendant, or his agent or agents, then he has no right to recoup, in this cause, damages for said delay.

5th. If the jury find that a rubber of a new description was originally put in the mill by the plaintiff, and the main conveyor originally placed above the floor by him, in both cases at the instance and by the direction and requirement of the defendant, and against the opinion and judgment of the plaintiff, and that after the mill was completed and put in operation, it was found necessary to take down this rubber and put in another of a different description, and to change the position of [**9]  the conveyor from above the floor to under it, then the plaintiff is not bound by his contract of March 1853, from recovering what the jury may find was the worth of the materials and labor furnished and done by him in taking down said first rubber and putting up the second, and in removing the conveyor from above to under the floor, provided the jury find he did so take down the first rubber and put up the second, and did so remove the conveyor at the request of the defendant.

6th. If the jury find that a branduster was put up in the mill by the plaintiff, at the instance and by the order and direction of the defendant, or of persons authorised by him to have the same put there, and that this branduster was not a necessary and customary part of a flour mill in complete working order to make the best article of wheat flour, then the plaintiff is not barred, by his contract of March 1853, from recovering such sum as the jury may find the putting up said branduster in the mill was worth.

7th. If the jury find that a packing chest was put in the mill machinery by the plaintiff, and that self-packing machinery was put in this chest by the plaintiff, at the instance and by the [**10]  direction of the defendant, and that such self-packing machinery was not a necessary, usual and customary part of a flour mill in complete working order, sufficient to make the best article of wheat flour, then the plaintiff is not barred from recovering what such machinery, and the putting it up, may be worth, by the contract of March 1853.

8th. That the defendant is not entitled to set-off in this case any sums of money paid by him for repairs and alterations made in his mill after it was completed, unless the jury find that such alterations and repairs were necessary and proper to remedy defects or faults, or supply omissions in the mill caused by, and arising from, the non-performance by the plaintiff of the contract of March 1853, between himself and the defendant, or of any subsequent contract between them, which the jury may find from the evidence.

The court granted these prayers, the first by the consent of the defendant, who excepted to the granting of the remaining seven and each of them.

3rd Exception. The defendant then asked instructions in substance as follows:

1st. If the jury find that the claim of the plaintiff in this case is that set forth in [**11]  the bill of particulars filed by him, and that the written agreement given in evidence and proved by him was the contract under and by virtue of which the plaintiff commenced to furnish materials and do work in the erection of a mill in the defendant's warehouse, then, upon the true construction of said contract, the plaintiff can make no claim for extra or additional charges in the said mill, or for the said work or materials, unless upon proof of a new written agreement as provided for by said contract.

2nd. If the jury find the facts in the defendant's first prayer, and further find that said written agreement, proved by the plaintiff was not, subsequently to the making thereof, annulled and set aside by the plaintiff and defendant, but continued to be their agreement, then the plaintiff cannot claim for extra or additional charges for work or materials on said mill, unless he proves a new written agreement.

3rd. If the jury find the facts as stated in the defendant's first and second prayers, then the plaintiff cannot recover for any extra or additional charges claimed by him in his bill of particulars.

4th. The plaintiff cannot recover from the defendant, if the [**12]  jury find the facts stated in the first and second prayers of the defendant, and further find, that no new agreement was made as a substitute for the first agreement, and that there cannot in this case be two distinct agreements, one in writing and the other by parol, if the parol alleged agreement applies to part of the work done.

5th. That, under the contract given in evidence, it was the obligation and duty of the plaintiff to select all the machinery to be used in the mill he was building for the defendant, and to determine where the same was to be placed, in the defendant's warehouse, and to put up the mill, do the work and furnish the materials in conformity with said contract, and within the time therein specified, and the defendant in this case may recoup, in damages, the injury sustained by him from the failure of the plaintiff, (if any,) to perform said contract, unless the jury find that such failure was caused by the conduct of the defendant himself, and that the defendant's claim for damages must be confined to such injuries as resulted from the plaintiff's violation of the said contract, and were not produced by the defendant's own acts.

6th. That the defendant [**13]  may recoup in damages a fair and reasonable rent for the time he was deprived, by the failure of the plaintiff, from using and enjoying the said mill, agreed to be erected at his warehouse by the plaintiff, if the jury find the facts stated in the defendant's first and second prayers, and further find, that the plaintiff, by his own fault or omission, failed to complete the said mill in the manner and mode agreed upon by him.

The court refused to grant these prayers and each of them, and to this ruling the defendant excepted.

4th Exception. After the action of the court, as stated in the preceding exceptions, and after the plaintiff's counsel had concluded the opening argument of facts before the jury, and before the defendant's counsel commenced his argument, the defendant offered his seventh prayer, as follows:

7th. That if the jury find, that when the alterations and additions were made, as stated in the plaintiff's fifth, sixth and seventh prayers, even if made as therein stated, no claim was made for any extra or additional compensation for the same or any part thereof, and no agreement was made by the defendant to pay for the same or any part of them, and that [**14]  the defendant when he so directed the same, did so under the impression that he did not thereby make himself liable for any extra or additional compensation, and that the plaintiff made no claim therefor while the same were being done, and gave defendant no notice of any such claim before or while the said work was going on, then the plaintiff cannot recover for any such extra or additional work.

The plaintiff objected to the offering of this prayer, upon the ground, it was not offered in time under the rules of court, which are to be considered as part of this exception, and it was agreed that the same might be read from the printed rules of said court. The court, however, overruled this objection, and held, that the prayer came in time, and then refused to grant the same, and to this refusal the defendant excepted.

The verdict was in favor of the plaintiff for $ 400, and judgment thereon was rendered on the 6th of November 1855. Afterwards, on the 2nd of January 1856, the defendant moved for a non pros., and for a rule upon the plaintiff, to show cause why a non pros. should not be entered, and why the judgment, if any, should not be entered for costs alone, insisting,  [**15]  that as the verdict was for $ 400, no judgment can be entered for that amount by the Superior court. The plaintiff showed cause, and insisted, that the motion of the defendant is really and substantially a motion in arrest of judgment, and should have been made in accordance with the 41st rule of court, which is then set out as follows: "Every motion in arrest of judgment or for a new trial, shall be made before the rising of the court, on or before the second day succeeding that upon which the verdict shall have been rendered. All reasons for such motion shall be filed in writing within said time; and no others shall be thereafter assigned unless by leave of the court." The plaintiff, also, further insisted, that under the Constitution and laws of the State, the Superior court of Baltimore city, has jurisdiction of this cause, and has power to give judgment upon the verdict rendered by the jury, and that the motion of the defendant, in order to have the effect which it seeks, should be, to strike out the judgment in the case. The court overruled this motion, and ordered the judgment to stand as entered.

The defendant appealed from the judgment, and also from the order of the [**16]  court overruling his motion, as above stated.  

DISPOSITION:
Judgment reversed.  

HEADNOTES:

By a written contract between the owner and a mechanic, the latter contracted to put up a mill, guarantied to grind the best wheat flour, with the necessary bolts, elevators and rubber, for a specified sum, and in the contract was this clause: "No extra charges to be made unless a written agreement be made and attached to the contract." HELD:

1st. That this clause protects the owner against any charge for extra work beyond that stated in the contract, unless reduced to writing and attached to the contract, no matter what such work might be, whether alterations in the plan or mode of doing the work, or additions or improvements in and about the completion of the mill.

2nd. And it makes no difference that the extra work was ordered by the owner, provided it was on the mill; the builder may refuse to do such work, or he may assent under the protection afforded by this clause, but if he does extra work, without such protection, he waives the right to additional compensation.

3rd. The law presumes that the parties understood the import of this contract, and made it with knowledge of their mutual rights and obligations, and if one party omits to have the changes reduced to writing, they must, in view of the rights of the other, be deemed to have been made with reference to the contract price, unless there be proof of an express waiver of this clause, or a promise to pay for the extra work.

Contracts are to be interpreted and enforced according to the fair import of their terms, without reference to the hardship that may fall on the parties; if persons voluntarily express themselves in writing, they must be bound by the language employed.

In an action by the builder against the owner, to recover the contract price for building a mill, the latter may, by way of reduction of damages or recoupment, be allowed for losses sustained by him from not having had the use of the mill, resulting from the failure of the plaintiff to complete it at the time specified in the contract.

The standard by which, in such a case, the defendant's loss is to be estimated, is the fair rent of the mill for the time he was kept out of its use, by reason of the plaintiff's failure to complete it according to the contract, but he cannot recover for any delay beyond the contract time, caused by himself.

He cannot be allowed estimated profits from the working of the mill, because such are merely speculative, depending on the quantity of flour it might grind, the fluctuations of the prices of flour and grain, and the remote contingencies of his being able to procure wheat, labor and fuel, as well as the continuance of the mill in running order, free from accidents and loss of time from other causes.

Nor can he be allowed for such loss on the basis of profits which he might have made under a contract between himself and a third party, for the employment of the mill, not for a rent certain, but for a fixed price per bushel for wheat ground and elevated, which, to a certain quantity per year, was to be furnished by such third party.

Where unliquidated damages are claimed, either by the plaintiff as his cause of action, or by the defendant in reduction of the verdict, it is very difficult to apply a rule that will do full justice to the parties; as a general proposition, the injured party is entitled to be placed, as nearly as money can do it, in the same plight as if the contract had been faithfully executed.

Speculative profits are too remote to be allowed as damages, because they are not presumed to have been contemplated by the parties when they made the contract, and the subject of damages is to be dealt with as of the time the contract was made.

But such damages as are incidental to, and caused by the breach, and may be said to flow reasonably and naturally from it, and are not accidental or consequential losses, will be allowed.

Whether losses are incidental to, and caused by, the breach of the contract or not, must depend on the nature of the transaction, and in cases of building contracts, on the objects and uses for which the structure may be designed.

But where expected profits are such as the party ought to have contemplated as a reasonable and probable result of his breach of the contract, they will affect the measure of damages; and, in some cases, the profits that would have been derived from another contract, existing at the making of the one in suit, may be allowed.

By the 11th sec. of the 4th art. of the Constitution, the jurisdiction of the Superior Court of Baltimore city is made to depend on the amount of the "debt or damage claimed," and in case the plaintiff shall recover less than the sum of five hundred dollars, he shall be allowed or adjudged to pay costs at the discretion of the court." HELD:

That this provision of the Constitution authorises that court to render judgments on verdicts for less than five hundred dollars; the provision, as to costs, furnishes to suitors a sufficient inducement to institute their suits in the proper court, and not to invoke the jurisdiction of the Superior Court, except in good faith.

The 10th and 11th secs. of the 4th art. of the Constitution, defining the jurisdiction of the Court of Common Pleas and the Superior Court of Baltimore city, are not to be taken as intimations that each court was peculiarly adapted to the class of cases specially confided to it, but as showing a plain design to facilitate and promote justice by a division of business.

It is the duty of the courts so to interpret doubtful provisions of the Constitution, as to maintain the jurisdiction of the legal tribunals.  

COUNSEL:
George M. Gill for the appellant:

1st. The question raised by the first exception, and by the plaintiff's 5th, 6th and 7th prayers, and the 1st, 2nd, 3rd, 4th and 7th, prayers of the defendant, relates to the claim for extra work. The written contract under which this mill was built, provides, that the plaintiff should, for a specified sum, do all the work and furnish all the materials for a mill to make the best article of wheat flour, and contains the express stipulation: "no extra charges to be made unless a written agreement be made and attached to this contract." There is no evidence of any additional written contract, attached to this, nor indeed of any express parol contract in regard to extra charges, and it is submitted, that the defendant is not liable for any extra or additional work or materials, unless a new written contract was entered into, or unless the first contract, was, by agreement of the parties to it, cancelled or annulled, and there is no evidence that it was so cancelled. The cases of The Baltimore Cemetery Co. vs. Coburn, 7 Md. 202, and Miller vs. McCaffrey, 9 Barr., 245, are [**17]  conclusive adjudications, upon the construction of such a clause as this in similar contracts. If the workman is at liberty, upon any trifling alteration in or addition to the work, to throw the whole contract aside, and that too in the face of a stipulation in it, pointing out the mode by which such changes and additions are to be brought within its terms, then it is utterly useless for parties ever to make such contracts.

2nd. The question presented by the plaintiff's 2nd and 3rd prayers, and the 5th and 6th prayers of the defendant, relates to the right of the defendant to recoup damages for the noncompletion of the mill, by the time agreed upon in the contract. By that contract the plaintiff agreed to have the whole work complete, and the mill ready for use, on or before the 15th of June 1853. In this he failed, and the mill was not ready for use before the following September. If injured by this failure of the plaintiff to complete the work at the time agreed upon, the defendant clearly has the right to recoup in damages the injury sustained thereby, if the same was produced without any fault on his part. The measure of damages in this case must be, what the mill would have [**18]  profited the defendant under the agreement which was made by him with the Wardens, and which agreement, it was proved, they were ready on their part to fulfill, and would have carried out had the mill been ready for use. In support of this position, see 9 How., 213, Withers vs. Greene. 14 How., 444, Winder vs. Caldwell. 11 How., 478, Van Buren vs. Digges.

3rd. The verdict in this case being for $ 400 only, an amount not within the jurisdiction of the Superior court of Baltimore city, no judgment could be entered in that court upon this verdict.

1. N. Steele for the appellee.

1st. The first exception, as to the admissibility of certain evidence, the 5th, 6th and 7th prayers of the appellee, and the 1st, 2nd, 3rd, 4th, and 7th prayers of the appellant, all involve the general question as to the effect of the clause in the contract, that "no extra charges to be made unless a written agreement be made and attached to this contract," upon the right of the plaintiff to recover for work and materials furnished, in taking down the main conveyor and putting it where it was originally intended to be, in taking down the first rubber and putting up the second, in putting in the [**19]  branduster, and in putting up self-packing machinery for the packing chest. Upon this question, it is insisted for the appellee, 1st. That by the true construction of the original written contract between the parties, the work and materials above mentioned were not embraced in it, and were not subject to the operation of the clause requiring a written agreement for extra charges. 2nd. That even if this clause of the contract is held to extend to all work and materials that went into the mill-machinery, still, if the particular work and materials, now the subject of controversy, were not such as the plaintiff could have been legally required to do and furnish, by the terms of the contract, and the defendant, without entering into any new written agreement, did, by a verbal order, direct them to be done and furnished, then he will be held to have waived, as to them, the stipulation as to a written agreement. 3rd. That if the defendant gave a verbal order for work and materials, not called for by the contract, and the same were accordingly done and furnished by his direction, it would be a fraud in him to seek to shield himself from responsibility under the stipulation in the original [**20]  contract. 4th. That even if work and materials, not called for by the contract, were within the operation of the stipulation as to a written agreement, still, a verbal order by the defendant to do and furnish such work and materials, fulfilled by the plaintiff, constituted a new agreement, or was, at least, a recision, as to such work and materials, of the stipulation for a written agreement. In support of these views see 1 Parson's on Cont., 541, 542. 7 Md. 202, Balto. Cemetery Co. vs. Coburn. 5 Barn. & Adol., 58, Gross vs. Nugent. 2 Parson's on Cont., 190, 191, and cases there cited.

2nd. The 2nd prayer of the appellee, and the 5th and 6th prayers of the appellant, all relate to the right of the latter to recoup, in this action, damages alleged to have been sustained by him in consequence of the appellee's breach of contract. The non-completion of the mill-machinery on the 15th of June, is the only breach of contract by the appellee, in reference to which there is any evidence of damage to the appellant, and that evidence goes to show, that if the mill had been completed at that time, the Wardens would, under their contract with the appellant, have furnished a large amount [**21]  of wheat to be ground, on which he might have made profits. As to these prayers, it is insisted for the appellee, 1st. That the damages for loss of profits by not grinding, are too remote and uncertain to be recouped, and that the defendant, in an action for work and materials, can only recoup damages for such breaches of contract, on the part of the plaintiff, as make that which the defendant gets, less valuable than by the contract it ought to have been, and when he has received that which he bargained for, he cannot recover damages for a breach of contract by which he has sustained collateral injury. 1 Md. 342, Middlekauff vs. Smith. 21 Wend., 342, 344, 350, Blanchard vs. Ely, et al. 7 Hill, 62, 68, Masterton vs. Mayor, &c., of Brooklyn. 2 Smith's Lead. Cases, 14, 15. 9 How., 227, 230, Withers vs. Greene. 8 Mees. & Wels., 858, 869, 871, Mondel vs. Steel. 10 Barn. & Cress., 416, Walker vs. Moore. 2nd. That the 5th prayer of the appellant was properly refused, because it threw upon the appellee the unqualified and absolute obligation and duty to select all the machinery, &c., when there was evidence that the appellant himself had selected machinery, &c.; because it was too general [**22]  in not specifying any particular failure of the appellee to perform the contract, leaving the jury, at large, to decide what would constitute a breach of the contract; and because it shut out the evidence of waiver, by the appellant, of the non-performance of any part of the contract, or left it to the jury to determine what would constitute a waiver. 3rd. That the 6th prayer of the appellant was properly rejected, because there was no evidence of what was a fair and reasonable rent for the mill; because it gave the defendant the right to recover rent, if the plaintiff had not completed the mill, not at the time, but in the manner and mode agreed upon, and thus left the construction of the contract to the jury; and because it made the failure of the plaintiff to complete the mill, by his own omission, an absolute ground for recoupment, without regard to the evidence of waiver, acceptance and assent of the defendant.

3rd. As to the third prayer of the appellee, it is insisted, that the contract between the appellant and Millholland for the iron work, to be done by the 15th of June, with the fact that it would require some time to put the iron work up in the mill, and the payment [**23]  of moneys, and acceptance of the work after the 15th of June, constitute a waiver of the appellant's right to have the mill completed on that day, and no damages can be recouped for its non-completion. 4 Md. 509, Marshall vs. Haney. 1 Fairfield, 414, Baldwin vs. Farnsworth. Chitty on Cont., 739. 3 Mees. & Wels., 387, Holme, et al., vs. Guppy, et al.

4th. It is insisted, that the appellant's motion for a non pros. was properly overruled by the court below, because that court had jurisdiction of the cause, and power to enter the judgment, under the Constitution and laws of the State.  

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

OPINIONBY:
TUCK 

OPINION:

 [*328]  TUCK, J., delivered the opinion of this court.
The plaintiff, the present appellee, contracted to put up a mill guarantied to grind the best wheat flour, with the necessary 

 [*329]  bolters, elevator and rubber, for the sum of five thousand dollars. In the contract there is this clause: "No extra charges to be made unless a written agreement be made and attached to the contract." In the progress of the work, alterations were made, and portions of the mill put in, as the plaintiff contends,  [**24]  not embraced by the terms of the contract, without the parties availing themselves of the above provision, and one of the questions in the cause is, can the plaintiff demand additional compensation beyond the sum stipulated for the entire work? The claim is placed on the ground, that the defendant interfered with the work by directing or authorizing these departures from the original design, and in some instances, against the opinion of the plaintiff. Whether these circumstances can aid him must depend on the object of the parties in inserting this clause, and the interpretation we are to put upon the entire agreement.
It is manifest, that the object of such provisions in building contracts is certainty as to the terms on which the work is to be done, in order that the parties may know how much one is to pay and the other to receive for such changes and alterations as may be made. Neither has a right to change the plans without the other's consent; but, as this may be done by agreement, when alterations are specified in writing and attached to, they become parts of, the original contract, and the builder may recover for such work according to the agreement in that behalf. The present [**25]  plaintiff undertook to erect a mill, a work requiring practical knowledge and skill in that branch of the mechanic arts, on which it is to be presumed, the defendant relied in giving him the contract. It was his right, as well as duty, to determine what was necessary to complete such a mill as he had contracted to put up; and as to all matters not mentioned in the agreement, or laid down on the plans, he was solely responsible. He was under no obligation to receive suggestions from Abbott; on the contrary, if he deemed them unsuitable or impracticable, or likely to cause increased expense, he should have resorted to the contract, as containing all that he was required to perform, and insisted on having the additional work brought within its terms, as well for his own 

 [*330]  protection, as to prevent misapprehension on the other side. The words in question protected Abbott against extra charges. They cannot mean that no extra charge was to be made for what the contract required, because the very office of that was to define what was to be done and to fix the price. We take the true construction to be, that there was to be no charge for extra work, that is, for any work beyond that [**26]  stated in the contract, no matter what it might be, whether alterations in the plan or mode of doing the work, or additions or improvements in and about the completion of the mill, unless reduced to writing and attached. It makes no difference if the extra work was ordered by the owner, provided it was on the mill. As we have said, the builder need not accede to the owner's views; he may refuse, or he may assent, under the protection afforded by this clause. If extra work be done without it the right to additional compensation is waived. Any other interpretation of such words would make them valueless to the parties. The appellee's view, if adopted, would deny to the owner the privilege of suggesting any, the most trivial, alteration of the work, without incurring the risk of opening the whole contract; then the written agreement would be substituted by a mere quantum meruit claim for work and labor, to be afterwards adjusted upon uncertain oral testimony. And, in many cases, his mere presence on the premises might subject him to extra charges, on the ground of acquiescence in alterations made by the builder, when it might well be supposed there was to be no additional charge,  [**27]  because not previously attached to the contract.  5 G. & J. 263, 264. 6 H. & J. 89. 9 Barr. 245. We cannot distinguish this agreement from that passed upon in the case of Baltimore Cemetery Co. vs. Coburn, 7 Md. 202. The same considerations apply to both. To hold a party liable in the face of such a stipulation, would be to turn his plain words into something that he had not assented to. In 9 Barr. 245, extra work was not allowed for, though done with the owners' knowledge, and without objection, and afterwards accepted by them. There, the contract did not require the agreement for extra work to be in writing, but the terms were very explicit, 

 [*331]  viz: "At any time during the progress of the building, the committee reserves the right to direct any alteration or variation from the original plan, so as not to vary therefrom in any very essential manner, so as to cause any material extra expense to the building; but any alteration suggested by them shall be made, and the expense, if any, shall be agreed upon at the time; but no extras shall be allowed under any pretence whatever." Extra work was done with the knowledge of the committee,  [**28]  who made no objection, and some of them approved of the plaintiff's acts. The court held, that in the face of such an agreement, affording ample protection to both parties, the action could be maintained only, "by clear and satisfactory evidence of a new, distinct and independent contract, authorizing the alterations, and expressly agreeing to pay for them a certain fixed price, or what they may be reasonably worth," and that if the contract was to be thrown open, because of the presence of the committee while the work was going on, without objection to the changes, though often conversing about them, and because of their acceptance of the work, it would be useless to put such agreements in writing. This may appear to be a harsh construction, where the owner has received the benefit of the work; but the law is well settled, that contracts are to be interpreted and enforced, according to the fair import of their terms, without reference to the hardships that may fall on the parties.  Wagner vs. White, 4 H. & J. 564. 5 H. & J. 143. Dorsey vs. Smith, 7 H. & J. 345. If persons voluntarily express themselves in writing, they must be bound by the language employed.  McElderry vs. Shipley, 2 Md. 25. [**29]  The law presumes, that they understand the import of their own contracts, and to have entered into them with knowledge of their mutual rights and obligations. And if, in a case like this, one party omits to have the changes reduced to writing, they must, in view of the rights of the other, be deemed to have been made with reference to the contract price, unless there be proof of an express waiver of that clause of the contract, or a promise to pay for the extra work. Hort vs. Norton, 1 McCord 22. Wilmot vs. Smith, 3 C. & P., 453. 7 H. & J. 345, 363. 1 Gill 311. 5 Md. 121. 9 Pick., 298.

 [*332]  It follows from these views of the agreement, that the court below erred in disallowing the defendant's objection to the evidence of work claimed as extra or additional, and also in granting the plaintiff's 5th, 6th and 7th prayers; and this ruling renders it unnecessary to pass upon the 1st, 2nd, 3rd, 4th and 7th prayers of the defendant, relating to the same points.
The defendant having made a claim, by way of reduction of damages, for losses sustained by not having had the use of the mill, [**30]  according to the contract, prayers were offered on both sides on that subject, which we are now to consider. In many cases a defendant may recoup for damages, resulting from the plaintiff's failure to execute his contract. Formerly a cross-action was deemed to be the proper remedy; but now the law is settled, that the matter may be urged by way of defence. We do not say, that a defendant can always recoup where he could sue as plaintiff, but that the principle on which it has been allowed will apply here. 2 Parsons on Cont., 246. Sedgwick, Ch., 17.  Beall vs. Pearre, 12 Md. 550.
Where unliquidated damages are claimed, whether by the plaintiff, as his cause of action, or by the defendant, in reduction of the verdict, it is very difficult to apply a rule that will do full justice to the parties; the most that courts can accomplish is to approximate that result, with the limited and imperfect aids that the parties may furnish. As a general proposition, one who has so suffered, is entitled to be placed as nearly as money can do it, in the same plight as if the contract had been faithfully executed. But there are many transactions in which this is wholly impracticable,  [**31]  because of the impossibility of determining, after the occurrence, what might have happened under a different state of things. The books furnish numerous examples, in which trials at law have come far short of meeting the demands of justice, though the result could not have been different in the particular cases without letting in a most loose and uncertain measure of damages, and very dangerous, because liable to be abused. The law, for the purpose of preventing wrong and injustice, and to make compensation as far as regard for truth and certainty would 

 [*333]  allow, has laid down certain rules for the government of courts and juries, and among these we find that speculative profits are too remote to be included in the estimate, because they are not presumed to have been contemplated by the parties at the time of making the contract. But such damages as are incidental to and caused by the breach, and may be said to flow reasonably and naturally from such breach, and are not accidental or consequential losses, will be allowed; and whether they are of the one character or the other must depend on the nature of the transaction, and, in cases of building contracts, on the objects [**32]  and uses for which the structure may be designed. The reason stated for discarding expected profits, as an element in the estimation of the loss, is, that the party charged is not presumed to have made his contract with reference to such results, unless the special circumstances are communicated to him at the time; but where they are such as he ought to have contemplated, as a reasonable and probable result of his breach, they will affect the measure of damages in favor of the complaining party. Applying these rules, there is no difficulty in disposing of the prayers under consideration. Here, the contract was to build and put up a mill for grinding flour, by a named day, which was of the essence of the agreement.  Watchman vs. Crook, 5 G. & J. 239. It is a necessary presumption, that the plaintiff knew that his work was intended for use and profit, by rent or otherwise, and that in contracting to complete the mill by a certain day, he acted with reference to these purposes as important to the defendant, and that he contemplated the loss of such profit as a reasonable and probable result of a failure on his part. He is thereby brought within the principles we have [**33]  stated, as fairly deducible from adjudged cases of the highest authority.
But the inquiry here is, what standard of value for the loss of time shall we apply? We cannot adopt any estimate of profits that Abbott might have realized from working the mill, because these were merely speculative, depending on the quantity of flour it might grind, the fluctuations of the market, as to prices of flour and grain, and the remote contingencies of his being able to procure wheat, labor and fuel, as well as the 

 [*334]  continuance of the mill in running order, free from accidents and loss of time from other causes. Nor can we charge the complainant on the basis of the contract between Abbott and Warden, for the employment of the mill, because, it was not for a rent certain, but depending on most of the contingencies above mentioned, and we are not to presume, that Gatch made his contract in contemplation of it, as a measure of damage resulting from his failure to complete the mill by the time fixed in the contract. It makes no difference, that Warden proved that his firm were ready to have gone on with, and fulfilled their contract, if the mill had been finished on the 15th of June, because [**34]  we must deal with the subject, as of the time of the contract between the parties to this suit. In some cases, the profit that would have been derived from another contract existing at the making of the one in suit, may be allowed. An example is furnished in the case of Masterton vs. Mayor of Brooklyn, 7 Hill. 62, where the distinction is clearly stated by Nelson, Ch. J., whose opinion, as well as 2 Kent's Com., 480, note, and Sedgwick, 76, are quoted, in the most recent English works on the subject of damages, as having stated the law on correct principles. Mayne on Damages, ch. 2. Powell on Evidence, ch. 21.  1 Exch. 855. 2 Parson's on Cont., 458, et seq.
Considering the uncertainties attending the milling business, and the difficulty of defining a safer guide for juries, we are of opinion, that a fair rent is the most reasonable standard of the defendant's loss by reason of the plaintiff's failure to complete the mill. This we take to be consistent with well established principles, and the doctrine recognized in this court, in a case where the measure of damages for loss of the use of a mill was a point in contest.  [**35]  Smith vs. Middlekauff, 1 Md. 329. Though the courts in Vermont appear to allow evidence of what the mill could have earned.  18 Verm. 620.
We think, therefore, the court was right in granting the plaintiff's second prayer. The 5th and 6th prayers of the defendant also relate to his claim for damages. They were properly refused, because the fifth claimed damages, by way of reduction, for loss of the use of the mill from the time originally 

 [*335]  agreed upon for its completion, when the evidence shows the time was extended as the necessary consequence of the defendant's agreement with Millholland, by which the latter was allowed until the 15th of June for supplying portions of the machinery, and it would require several weeks after their delivery to complete the mill. He was claiming damages for delay that he had himself caused. And for this reason, also, the 3rd and 4th prayers of the plaintiff were properly granted. There was no evidence of the value of the mill to authorize the jury to reduce the verdict, by an allowance of rent, for the loss of time; the defendant's 6th prayer was, therefore, well refused. The exception to the plaintiff's [**36]  eighth prayer was abandoned at the bar.
The remaining question arises on the defendant's motion for a non pros., which, in view of its importance, we shall decide without reference to the time at which it was made.
The 10th and 11th sections of the 4th article of the Constitution, define the jurisdiction of the Court of Common Pleas and of the Superior Court. They are not to be taken as an intimation, that each court was peculiarly adapted to the class of cases specially confided to it, but as showing a plain design to facilitate and promote justice by a division of business, and this was to be insured by preventing the accumulation of suits in the Superior Court, at the option of plaintiffs. The jurisdiction is made to depend on the amount of the "debt or damage claimed," and "in case any plaintiff shall recover less than the sum of five hundred dollars, he shall be allowed or adjudged to pay costs, in the discretion of the court." The Judiciary act of 1789 gives jurisdiction where "the matter in dispute exceeds the sum or value of five hundred dollars, exclusive of costs, to be made to appear to the satisfaction of the court." Under this act it has uniformly been held, that [**37]  the damages claimed in the writ is the test of jurisdiction, even in cases where the demand was on a note for less than five hundred dollars; if the verdict be for less the plaintiff does not recover costs, but, at the discretion of the court, may be adjudged to pay costs.  8 Cranch 229. 3 McLean 91.  2 Wash., 463. 16 Peters, 97. If the point before us rested merely on 

 [*336]  the words, "debt or damage claimed," we might find in these cases authority for overruling the defendant's motion; but the Court of Appeals, prior to the present Constitution, in construing the acts of Assembly for the recovery of small debts, where the amount of the "debt or damage laid or claimed" gave jurisdiction, decided, that in actions ex contractu, these words meant the sum recovered, and if that was less than the sum named in the law, the county courts had not jurisdiction, but that a different rule prevailed in cases ex delicto. 1 Gill 33, 203. 3 Gill 251. The present court, recognizing this authority, applied the doctrine in Ott vs. Dill, 7 Md. 251, and hence, the judgment on this [**38]  point could not be sustained, unless the cases are distinguishable by reason of the above clause in the Constitution relating to costs. Looking to the design which we have imputed to the Convention, and to the duty of the court so to interpret doubtful provisions as to maintain the jurisdiction of the legal tribunals, we are of opinion that the eleventh section must be understood as authorizing the Superior Court to render judgments on verdicts for less than five hundred dollars; the provision as to costs, furnishing to suitors a sufficient inducement to institute their proceedings in the proper court, and not to invoke the jurisdiction of the Superior Court, except in good faith. These words were certainly intended to enable the judge to protect himself from an undue amount of business, by holding the costs in terrorem over such as might be disposed to carry their causes to that court without reasonable expectation of recovering five hundred dollars or more. If this is not the proper interpretation of the section, the court's discretion means nothing, because, on general principles, the costs would follow the judgment of non pros., and could not fall on the defendant. We cannot [**39]  suppose that it was designed to award costs to the plaintiff where he is denied the benefit of his verdict, when this obvious result of a different construction may be avoided by treating the exercise of the discretion as a penalty to be inflicted on those who should implead defendants in that court, without a bona fide belief that their cases were within the prescribed jurisdiction. The motion for a non pros. was properly overruled.

 [*337]  If it clearly appeared, by the record, that the trial and finding of the jury were confined to the items of extra charge, there would be no reason for a venire de novo, all the evidence on that part of the case being now excluded. But the pleadings and proofs relied on set-off and payments on the original contract, and as it does not appear but that the verdict was made up, in part, of a balance due on that account, the plaintiff will have leave to apply for a procedendo.
Judgment reversed. 

176 of 196 DOCUMENTS 

WILLIAM FRAZIER vs. HENRY M. WARFIELD.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

13 Md. 279; 1859 Md. LEXIS 28 

April 19, 1859, Decided 

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

The bill in this case was filed, on the 17th of July 1858, by the appellee against the appellant, Inspector General of Grain, in and for Baltimore city, for an injunction to restrain proceedings, then pending before a justice of the peace of the city of Baltimore, which had been instituted in the name of the State, for the use of the defendant as informer, to recover the penalty of $ 25, under the 15th section of the act of 1858, ch. 256.

The questions presented by this appeal, involve the construction of this act of 1858, ch. 256. The injunction granted according to the prayer of the bill, prohibited the defendant from proceeding in the charge then pending before the magistrate, and also from instituting, as informer or otherwise, any similar charge against the complainant. After answer filed a motion was made to dissolve the injunction, and this motion was argued on bill, answer, and an agreement of facts, which with the allegations of the bill and answer, are fully stated in the opinion of this court, as well as in the following opinion of the court below, (LEE J.,) delivered, upon passing the order continuing [**2]  the injunction:

"The questions presented for my decision are very interesting, not only as it regards the construction of a public law, operating upon an important branch of trade, but also from the application of a remedy which it is insisted that a court of equity can now only give. I shall, therefore, as briefly as possible, state the conclusion to which I have come, after hearing the able arguments in this case.

"The complainant is a merchant, engaged in the purchase and sale of grain, in the city of Baltimore, and in his bill, praying for the injunction, (to dissolve which the present motion is made,) sets forth, that in July last, he contracted, at the Corn Exchange, with a certain William S. Pawson, for the purchase of a lot or parcel of wheat, represented by a sample then exhibited by said Pawson, estimating the wheat, so contracted for, at 112 bushels, more or less, and that by the terms of contract, Pawson was to receive therefor, $ 1 for each and every bushel which the said lot of wheat contained, and that the said wheat had just arrived from the Eastern Shore of Maryland, and was then, for the first time, offered for sale in the city of Baltimore; that before [**3]  this contract of purchase was consummated, the wheat was brought to the warehouse of the complainant and deposited, and immediately thereafter, the defendant, William Frazier, Inspector General of grain, in and for the city of Baltimore, was duly notified, by Pawson, that the wheat was ready to be measured and weighed, in conformity with the law of the State, and requested the defendant, as such Inspector General, to measure and weigh said wheat, according to law, and perform his official duty in the premises. Whereupon the defendant replied, that after the wheat was measured, he would weigh it by weighing one bushel out of every sixty, or at that rate, and would not weigh it in any other manner.

"The complainant then alleges in his bill, that after waiting a reasonable time for the defendant to have the wheat weighed, and hearing nothing from him, he addressed letters to him on the subject; which correspondence is filed with the bill, and expresses distinctly the views of both the complainant and defendant, as to their construction of the act of 1858, creating the office of Inspector General of grain, and the duties which it imposed on the defendant as Inspector General. The [**4]  complainant then alleges, that being unable to obtain the legal weight of the wheat, he was compelled to accept it and pay the price stipulated, in accordance with a pre-existing usage which had prevailed prior to the passage of the act creating the office of Inspector General of grain, and this was done without the agency of the defendant, or his assistants, as it related to the weighing and the measuring of the same.

"The complainant further alleges, that he was then arrested, at the instance, and by the procurement of the said Inspector General, Frazier, on a criminal charge, upon the information of said defendant, before Mr. Hayward, a justice of the peace for the city of Baltimore, as appears by the proceedings, by the said magistrate, in exhibits duly certified and made a part of the bill. Pending which, and before a final judgment thereon, by said justice of the peace, the complainant prayed that an injunction should be granted, and asked the interposition of the court, as a court of equity, to prevent the further prosecution of said proceedings by the defendant, and restraining him as informer, or otherwise, from instituting any further proceedings against the complainant [**5]  in the premises, until a decision by this court.

"Upon the allegations and prayer of this bill, an injunction was issued on the 16th of July 1858. To this bill the defendant filed his answer on the 23rd of July, and protesting against the jurisdiction of the court, answers: That a contract was entered into, on or about the 19th of July 1858, between the complainant and William S. Pawson, for the purchase of a lot of wheat, as stated in the complainant's bill, and does not deny the averments of the same in reference to said contract. The defendant, as Inspector General of grain for the city of Baltimore, admits, that he received notice that the wheat was ready to be weighed, in obedience to the law in such cases made and provided, and that in his official capacity, as Inspector General, was then called on to measure and weigh the same, and was notified where it was deposited, and that he informed Pawson and the captain of the vessel, who brought the wheat from the Eastern Shore of Maryland, that after said wheat was measured, (it having been previously inspected,) he would weigh the same by weighing one bushel out of every sixty, or at that rate, and would not weigh the same in [**6]  any other manner. The respondent, further answering, states, that the wheat in question was inspected in strict conformity to the law regulating the same, and that at no time, as the letters filed with the bill show, did he refuse to perform the duties required of him by the law, as Inspector General of grain, either to weigh the wheat, or that he was in default in offering to measure the same, but on the contrary he asserts, that he then, acting in his official capacity, offered to have the wheat measured and weighed, according to the requirements of the act of 1858, regulating the inspection of grain in Baltimore city, and in accordance with the usage and custom operating in said city, at the time and for the period of fifty years prior to the passage of said act. The answer then denies that the complainant was unable, by any default of the Inspector General, or his assistants, to obtain the legal weight of said wheat; that the complainant did accept the said wheat and pay the price stipulated for the same, in accordance with the prevailing usage, and without the agency of the respondent, or any of his assistants, but that the complainant accepted said wheat under the aforesaid usage,  [**7]  in plain violation, and in open defiance of the law regulating the inspection of grain in the city of Baltimore. The respondent, further answering, alleges, that after the correspondence between the complainant and himself, and the former had refused to have said wheat weighed and measured by the officers duly appointed for the purpose, in the manner pointed out in respondent's letter of July 9th, that the complainant did then proceed to measure said wheat, in precisely the same manner as the respondent had proposed orally and in writing to do. The answer also denies, that the business of the complainant, and other persons engaged in the purchase of grain, has been injured or prevented, by the refusal of the respondent, or his assistants, to perform their official duty. The respondent then admits, that regarding the course of the complainant, in having the wheat measured and weighed without the agency of the Inspector General, as a direct violation of the law regulating the same, that he instituted suit against the complainant and his co-partner alone, to recover the penalties provided by said law, and denies that he seeks any personal benefit as informer, but being the proper officer,  [**8]  appointed by the Governor of the State, to carry out the law referred to, it was his duty, as an officer, to carry out and execute the law; that he, therefore, gave notice to the proper tribunal, of the violation of law, upon which the suit against the complainant was instituted, in the name of the State of Maryland, and which was pending before a magistrate or tribunal competent to determine the rights of the parties, when the injunction in this case issued, and denies that the complainant is remediless at law, but that the magistrate is competent to hear the case and impose the fine. After thus answering the bill the respondent submits, that he has taken the oath prescribed under the act of 1858, and filed a bond as Inspector General of grain, in the penalty of $ 10.000, for the faithful performance of the duties of his office, and that he has, and is always ready, faithfully to perform his duty; and denies, finally, any dereliction of his official duties, as charged in the bill; but that, assuming the allegations of the complainant to be true, yet the complainant has an ample legal remedy, and is not entitled to the equitable intervention of this court, and also on the official [**9]  bond of the respondent, for any damage sustained by reason of the neglect of the respondent, in the discharge of his official duties, and that nothing in the complainant's bill can justify his violation of a law of the State.

"Upon this statement of the case, taken from the bill and answer, I shall proceed briefly to state and decide the questions raised and discussed, with much zeal and ability, by the counsel on both sides.

"The first and most important objection to the act of Assembly of 1858, regulating the inspection of grain, is, that the law is unconstitutional, and therefore inoperative. In this I cannot concur. The Legislature, under the Constitution of this State, have full power to regulate, for purposes of revenue, trade within the State. Indeed, from the earliest period of our history, it will be found that inspection laws have been passed and enforced without any doubt or question as to the power of the Legislature, under the old or new Constitution, to enact the same. Acts regulating the inspection of tobacco, of flour, fish, guano, &c., and imposing penalties for the violation of all or any of them, have been, and are now, recognized and executed without any [**10]  objection; and no principle of constitutional law can be invoked, to deprive the Legislature of the power to define and regulate the mode and manner in which trade and commerce, within the State, shall be governed, where the rights of the citizen are not invaded, nor is he deprived of those secured to him by the Constitution itself, such as trial by jury, habeas corpus, and other cardinal privileges embraced in the organic law. In examining the act, entitled, 'An act to provide for the inspection, measuring and weighing of grain in the city of Baltimore,' passed March 9th, 1858, under which these proceedings have occurred, and the constitutionality of which is now denied, I find the same to be, in my judgment, strictly in accordance with the powers vested by the Constitution in the Legislature, or not withheld from it by positive prohibition.

"It has been conceded on both sides, (and could not have been doubted,) that laws regulating trade and commerce within the State, are not only constitutional, but obviously necessary and proper, for the objects of revenue and uniformity, and the present act is so regarded, except so far as the 8th section may be considered objectionable.  [**11]  But my construction of the whole, taking its sections together, does not enable me to see any defect in this regard, even in the 8th section. This 8th section provides, that where the purchaser refuses to receive the grain, without complaint as to the measure or weight, and it shall appear that six hours have passed since the sale took place, and no complaint has been made to the seller or his agent within that time, then it shall be presumed, unless clearly proved to the contrary, that the bulk does correspond with the sample, and the purchaser 'shall be compelled to pay all damages and charges that may have arisen by reason of his delay or refusal to comply with his contract; to be assessed and determined by the said Inspector General.' Now, I do not regard this section as depriving the party interested of a full trial before a jury, if desired; for although the inspector general may determine and assess the damages and charges, yet upon the party's refusal to pay them he could only be made to do so by a suit at law, before the proper tribunals of the State, where the duties, authority and power, of the Inspector General, and the rights and liabilities of the parties to the particular [**12]  contract of sale or purchase, would be adjudicated. The 8th section does not say that the assessment of the Inspector General shall be final, but if it did, I am of opinion that all the questions arising properly in the determination of the suit, between the seller and the purchaser of wheat or grain, under this section, could be distinctly raised and adjudicated, as in other cases of contract or dealing between man and man, upon the general principles of the common law, and the decisions in this State. But if I am wrong, and this section is vicious on the ground of its unconstitutionality, it has been conceded, that if the remaining sections of this law are good, and can be carried out, the law will be so interpreted as to meet the benefit, or remedy the evils, the Legislature had in view by passing it. And regarding this law in its general object and provisions, as not only constitutional, but essentially necessary and beneficial to the revenue and trade of the State, I shall so adjudge; and pass now from this objection to the act, to the remaining questions upon which my decision must rest.

"The jurisdiction of this court as a court of chancery is denied, over the proceedings [**13]  of the magistrate in this case.

"1st. On the ground that they were criminal in their form and character, and, as such, not within the power of a court of equity to arrest or discontinue by means of an injunction.

"Unquestionably, no principle is better settled in England or this country, than that a court of equity will not, indeed, cannot, interfere with criminal courts and the punishment of crime. The sources of equity jurisdiction are, it is true, large and comprehensive, embracing every degree of fraud, mistake, accident and misrepresentation, and affording to the party relief, where the strict rules of common and statute law could not. But over criminal jurisdiction it has never sought to extend its arms. Some of the ancient writers on English law have referred to one or two cases, where proceedings under 'informations, in the name of the crown,' have been enjoined; but it will be found, on examining those cases, that the judges regarded the action as in the nature of a civil suit, and, on this ground alone, English chancellors have assumed equity jurisdiction. In this country, however, the settled judgment of the courts and jurists is, that in no criminal case will [**14]  a court of chancery interfere; and Mr. Justice Story, most eminent as a judge and author, in the 2nd volume of his Equity Jurisprudence, sec. 893, says, 'They (the courts of equity) will not interfere to stay proceedings in any criminal matters; they will not grant an injunction to stay proceedings on a mandamus, or an indictment, or an information, or a writ of prohibition; but this restriction applies only to cases where the parties seeking redress by such proceedings are not the plaintiffs in equity, for, if they are, the court possesses power to restrain them, personally, from proceeding at the same time upon the same matter of right for redress in the form of a civil suit and a criminal prosecution.' See, also, Eden on Injunctions, 42. And in sec. 959, (b.,) this distinguished jurist also says: 'It may be remarked in conclusion, upon the subject of special injunctions, that courts of equity constantly decline to lay down any rule which shall limit their power and discretion, as to the particular case in which such injunctions shall be granted or withheld: and there is wisdom in this course, for it is impossible to foresee all the exigencies of society which may require their aid [**15]  and assistance to protect rights and redress wrongs.'

"Adopting, as I now do, the doctrine and views of Judge Story, so well expressed, let me enquire into the character and circumstances of this particular case, as it is presented by the papers before me.

"The proceedings before the magistrate to recover the penalty sued for by the respondent, Frazier, were not in the nature of a mandamus, or an indictment, or writ of prohibition, these being public writs, issuing from the crown or State, to enforce a public law, or punish its violation--the mandamus; to compel a public officer to perform his duty, and the other writs for purposes of general right. Is then this, which the respondent in his answer terms a suit to recover the penalty, provided by the act, such a proceeding before the magistrate as would place it within the definition of an 'information,' which is said by the law writers to be an accusation or complaint exhibited against a person for some criminal offence, either immediately against the king or against a private person, which, for its enormity or dangerous tendency, the public good requires should be restrained or punished? It differs from an indictment, principally,  [**16]  in this, that an indictment is an accusation found by the oath of twelve men; whereas, the information is only the allegation of the officer of the Crown who exhibits it. See 4 Bl. Com., 307; Wharton's American Law, 97; Jacob's Law Dictionary. In this country, as Mr. Wharton states, 'informations,' as understood and used in England, are not in force, and very rarely in use. I am not able, therefore, to bring my mind to the conclusion, that a suit for the recovery of a penalty prescribed in a civil statute, like that before me, is, in its nature, an 'information,' and criminal in the sense contended for by the respondent. It is, I think, a mere suit between parties, the one having authority by law to sue for, as informer, and recover to his own use the penalty; and the other, subjected by the same law, to its payment for violating any of its provisions. It is not a penalty imposed as a punishment for criminal acts, and to be prosecuted for as such; if no person should sue for, as informer, the penalty under this act, there would be, in fact, no violation of the law punishable at all. Suits are often brought in the name of the State, and indeed most of the bonds given to secure, in the [**17]  orphans court and elsewhere, the faithful performance of fiduciary officers, are taken and sued upon in the name of the State, but this does not deprive the proceeding of its real character, that of a private civil suit or proceeding, for the benefit of the parties to it. If, however, I had any doubt on this subject, the opinions of the Court of Appeals have, I think, removed them, and must now control me in my decision of this point, making it unnecessary to examine the English and American authorities referred to in the argument. In the case of Day vs. The State, 7 Gill 321, decided in 1848, the Court of Appeals rule, 'that actions of debt, instituted before a justice of the peace, for the recovery of fines imposed by the act of 1846, in reference to lotteries, are civil actions, and not criminal cases or prosecutions.' This decision was practically sustained six years subsequent, in the case of The State vs. Mace, 5 Md. 337. Although in these two cases, the one decided before the new Constitution was formed, and the other afterwards, the question is presented under a different state of facts, yet, I think, it will be found, that the Court of Appeals have adjudged suits before [**18]  a magistrate for the recovery of fines or penalties, imposed by law, to be civil and not criminal proceedings; and testing the present case by the rule thus established, I cannot distinguish it from the penalty incurred and sued for under the lottery acts. The 15th section of this grain act provides, that no person, except those appointed under the act, shall inspect, weigh or measure any grain, and imposes a penalty of twenty-five dollars for thus violating the law; to be recovered in the name of the State, for the use of the informer, before any justice of the peace in and for the city of Baltimore. And the lottery act of 1846, contains the same provisions, differing only as to the amount of the penalty, and enacting that the same shall be recovered before a justice of the peace, in an action of debt, &c. And I find that other acts, regulating the inspection of merchandize, such as flour, tobacco, fish and guano, contain the same provisions. If I am right, therefore, in my understanding of the decisions of the Court of Appeals referred to, then this proceeding must be regarded as a civil proceeding, or, as the respondent, in his answer, has correctly called it, a suit to recover [**19]  a penalty, in which the State has no interest, and the recovery of which, in no way, calls in action the criminal code of the State, or its tribunals of criminal jurisdiction.

"This then being so, the next question recurs, is there such a complete legal remedy for the complainant in this case, as will prevent a court of chancery from interfering? I think there is not. The magistrate's judgment, it is true, could be reviewed by the Court of Common Pleas, or the case tried de novo there, but from this judgment of the Common Pleas no appeal would lie to the court of final resort. The injunction issued in this case restrains the respondent only until the Court of Appeals shall hear and determine the duties and rights of the parties, under a proper construction of this law, as I take it for granted, that in any event, an appeal will be taken to the next term of that court, from my decision. Looking then to the remedy before the magistrate, or the Common Pleas, as not being a complete legal remedy, I cannot, on this ground, dissolve the injunction heretofore granted. If in error I shall be soon corrected, if right, as soon affirmed.

"It now becomes necessary for me, as a chancellor,  [**20]  to express my opinion upon the proper and true construction of this law, for the inspection of grain, and I shall briefly do so.

"Prior to the passage of this act, a usage prevailed, existing for many years, (the answer says fifty,) by which one bushel of wheat in sixty bushels was weighed, and in this way the index of weight of the wheat was determined, as between the buyer and seller. Upon representations, no doubt, of the inequality, uncertainty, and injustice sometimes, of this mode of weighing wheat, the Legislature, at its last session, passed the act in question, whose object was, as I understand it, to provide a uniform and just mode of ascertaining the weight of wheat, and the inspection and measuring of grain, and to place between the buyer and seller--the farmer and the gentlemen of the Corn Exchange--an impartial officer of the law, with duties defined, and their faithful performance secured by a bond and an oath. Before the passage of this act, wheat had been weighed according to the usage named, but the act inaugurated a new mode, and in the fifth section declares, that the said inspectors 'shall also carefully weigh and determine the weight,' (not of wheat, which [**21]  might have left it doubtful whether this did not leave a discretion to weigh, as by the usage, one bushel in sixty,) 'but shall determine the weight of all wheat that shall be inspected by them, or carried to the said city for sale, and for this purpose shall procure, at reasonable and proper cost, proper weights and scales to effect the purpose herein contemplated,' &c. Now I confess, after much reflection, my inability to give to them any other meaning than these words import. Before the passage of the law all wheat had not been weighed; by the law it is made imperative, as a duty of the inspector, to remedy this, and weigh all wheat brought to Baltimore for sale, and then provides him with the apparatus or scales for performing this duty. But it has been ingeniously argued, that the Legislature intended, by this language, only to indicate the old mode of weighing one bushel in sixty. If so, why furnish him with scales, after requiring all wheat to be weighed? The evil complained of, under the old system, was the loss sustained by the seller and farmer, as very often one bushel weighed would not correctly, as it could not, give the true weight of the bushels not weighed. To prevent,  [**22]  therefore, any loss or injustice, the Legislature adopted the only plan that could attain this object, and that was, providing, when required by the seller and purchaser, for the weight of all the wheat. Now I agree, that where the words of a statute and its meaning are doubtful, well established usage can be invoked to explain or interpret it, but where the language of the law is plain and explicit, then the court must construe it by its terms, and not by usage or custom. There would have been, in fact, no necessity for this law, or no benefit in it, if the usage, which before had prevailed in the sale and purchase of wheat, had operated with equal justice upon the dealings of both parties. For I find, on examining carefully the sections of this act, that it looks to the establishment of an equal and impartial and disinterested tribunal for the inspection thereafter, and the measuring and weighing of grain in the city of Baltimore, guarding, as far as possible, the rights of both seller and buyer, and intending to introduce a new system in the place of the old. If the purchaser had been satisfied with the old system, the farmer had not, and to establish a better one was doubtless [**23]  the purpose of the Legislature. If, however, the view and the position assumed by the respondent, the Inspector General, be the correct one, and the construction given to the law by him be the true construction, the act, for all purposes, except as a revenue law, (and that would be small,) was unnecessary, and should not have been passed, because the Inspector General and his assistants do no more, under it, than was done before its enactment. In other words, it creates an office with no duties to perform. On the whole, I cannot adopt such reasoning; and regarding the law as a beneficial and just act, I shall construe it by its own words and carry out its obvious intent. All means all, and nothing less.

"With these impressions and views, thus briefly expressed, with but little time for a critical examination of all the authorities, I can see no grounds for a dissolution of this injunction, which now prevents a multiplicity of suits and further litigation, until the highest court in our State shall finally expound this law, and give us a guide for our steps and a lamp for our path. The continuance of the injunction can occasion no wrong to the respondent; its dissolution may subject [**24]  the complainant to great inconvenience and loss. Higher considerations than mere individual rights or wrongs are, I think, involved in this case, and, in my judgment, the shortest and most satisfactory course should be now adopted, to have this law interpreted and the duties of the Inspector General of grain defined and performed on the one hand, and the rights and liabilities of a large and most respectable class of merchants and farmers determined by the highest authority in the State. If I am wrong, therefore, in my present decision, the court of the last resort in this State, will soon be able to correct my error. I believe, however, I am right, and shall continue this injunction."

From the order overruling the motion to dissolve, and continuing the injunction, passed in accordance with this opinion, the defendant appealed.  

DISPOSITION:
Order reversed and bill dismissed, with costs to appellant.  

HEADNOTES:

The object and general purpose of the act of 1858, ch. 256, entitled, "An act to provide for the inspection, measuring and weighing of grain in the city of Baltimore," was to provide a competent and suitable officer to inspect grain, sold in that city, and to ascertain with fairness and accuracy the true quantity sold by weighing and measuring.

This act accomplishes this result, not by introducing a new mode of weighing and measuring, but by placing between the buyer and the seller, an impartial officer of the law, with duties defined, and their faithful performance secured by a bond and an oath.

Under this act the weight of wheat may be ascertained, by weighing one bushel in every sixty, according to the long established usage in the city of Baltimore, notwithstanding a particular section of the act says, the inspectors "shall also carefully weigh and determine the weight of all wheat that shall be inspected by them."

A cardinal rule in the construction of statutes, is, that the intention of the legislature shall be carried out, and that intention is to be collected from the words of the statute by considering every part of it, and it may also be ascertained by considering the cause or necessity of making the act, or from foreign circumstances.

The words of a statute must be taken in their accepted and known sense, and where particular terms have obtained a certain and definite meaning in a certain locality, that meaning must be given to them when used in a statute applicable to that place.

If the meaning of the words of a statute be uncertain, usage may be resorted to for their interpretation: doubtful words in a general statute may be explained with reference to general usage, and when a statute is applicable to a particular place only, such words may be construed by usage at that place.

Where great inconvenience will result from a particular construction, that construction is to be avoided, unless the meaning of the Legislature be plain, in which case it must be obeyed.  

COUNSEL:
Milton Whitney and E. F. Chambers for the appellant.

It is very desirable for the court to decide this case upon the construction of the act of Assembly. The farming interests of the State are in a high degree interested in the construction of this law, and this can be done without [**25]  departing from the record, for if this construction be such, as we think it should be, it is one reason why the injunction should not have been granted or continued.

We maintain that by the true construction of the act of 1858, ch. 256, no change was made in the mode of weighing grain, and that therefore it was only required of the inspector to weigh one bushel in sixty.

The assumption, that wheat is sold exclusively by weight, is unauthorised. There is nothing but usage to require it in Baltimore, and it is not, in fact, the practice elsewhere in Maryland. There is no legislative provision in this State demanding it, and in the United States the revenue laws regulate the duties and compensation to measurers by the bushel, without determining it by weight, except only in the case of salt, in which each bushel is to be of fifty-six pounds weight. The fees on measuring grain and coal are charged by the bushel, irrespective of weight. Commissions for the sale of wheat, and all other grain, have always been charged by the running measure, whether above or below the weight of sixty pounds, in Baltimore and everywhere. This act of 1858 constantly associates the measure of wheat--"the [**26]  bushel" --with the weight. The second section speaks of "inspection and measurement;" the third section has, "inspected, weighed and measured;" in each of which cases the language is obviously intended to apply to every description of grain, wheat as well as other kinds. Again, in some instances, the words "weigh and inspect," without the word "measure," are applied to other descriptions of grain as well as wheat. See section sixth, and also section ten, (in which the officer is not made to promise to measure any sort of grain,) and also section twelve. Again, by section twelve, in returning his accounts, the inspector is to refer alone to the "bushel" to determine the amount of his work.

The appellee's counsel rely mainly on the language of the fifth section, "carefully weigh," &c., "all wheat." Now the very connection in which these words are found is proof of the fallacy of the argument. The inspector is to carefully weigh all wheat that is inspected by him. The counsel have not, and could not, ask the court to say that this act required the inspector to inspect every bushel of wheat seriatim--nay, every peck and every pint--in a cargo. But the duty is not fulfilled, say they,  [**27]  by weighing one bushel in sixty--one sixtieth part. How then is the duty to inspect all wheat fulfilled by inspecting one sixtieth pound, or in any other way than by inspecting each several pound? The inspector is just as imperatively required to inspect all wheat as to weigh it. In making his return the inspector is only to give the number of "bushels," as well of wheat as of other grain. The word "bushel" is here used in the same sentence, the same context, and, we say, in the same meaning in reference to wheat as well as to other grain, and must mean bushel by running measure, and not by weight. It is an entire mistake to say that a new test of value was provided. The proper application, by proper persons, of existing tests, were quite adequate to the purposes and intention of the law; and what that intention was, is as plain, we think, from the language of the act, as it is notorious to all the community from the known motives and objects of the individuals who framed it.

In respect then to this demand, literally, to weigh all wheat, it is, we say, perfectly gratified by the mode adopted; that the true meaning of these words is to weigh one bushel in sixty; that "measuring"  [**28]  grain is not better understood than "weighing wheat," and that the known meaning must be attributed to words in a statute. In a case before Chief Justice Taney, (cited below, and not denied by the counsel on the other side,) the word "wool," in an act of Congress, was held to include the bag in which it was contained, although not of woolen fabric, it being first proved that the practice so to regard it was universal. In 6 Md. 49, cited by the appellee, the court say, evidence of usage may explain the terms of an agreement. The appellant does not claim to change the plain meaning of this act by usage--to defeat the plain meaning of its terms by usage. Just the reverse: we claim the exact meaning of the words of the act as well as its intention. The act says all wheat is to be weighed. It does not say how. Now what is the meaning of these words in the act, "weighing all wheat?" Are they such words as have had a meaning and import perfectly well known and understood by those in reference to whom they are used in this law? The affirmation of this fact is settled by the agreement filed.

Any contract to deliver a given number of bushels of wheat, each weighing sixty pounds, would [**29]  be complied with, as far as the weight is concerned, by weighing one bushel in sixty. Hundreds, if not thousands, of such contracts have occurred, and no man has yet heard of an exception to this mode of "weighing all wheat." The universal usage has given a definition to these words. The very authority cited by the appellee, in 6 Md. 49, proves the proposition here asserted. If a farmer sold a cargo of wheat by bushels of sixty pounds, as he always did in Baltimore, all that was done to ascertain the weight of the wheat--all the wheat--was to weigh one bushel in sixty. In the very case before the court, the appellee tells us he did determine the weight of the wheat "according to the old usage," that is, by weighing one bushel in sixty. He thus satisfactorily determined the weight of the wheat he purchased --the weight of all the wheat he purchased.

That words in a statute are to be taken in their known and accepted sense, is regarded as an established, well settled canon of construction. 7 G. & J. 61, Medley vs. Williams. The framers of this act knew what they were treating of, and what every one connected with this department of trade knew, the universally accepted meaning [**30]  of these terms, and used them accordingly. In the case of Love vs. Hinckley, Abb. Adm., 436, it was held, that "doubtful words in a general statute may be expounded with reference to a general usage, and when a statute is applicable to a particular place only, such words may be construed by usage at that place."

If an entire revolution in so important a branch of the commerce of the State, the most important interest it could touch, the whole trade in grain, had been in the view of the Legislature, if an entirely new, and hitherto unknown, system of conducting it had been designed, surely we should not be left without some more emphatic declaration of that design. It will be a small compliment to say they have left us so to conclude by the prefix of the word "all," in one section of the law, to the word "wheat"--the different interpretations of the words, "the wheat brought to market" and "all the wheat brought to market." The different modes of expression noticed above, and the indiscriminate application of terms will conclusively demonstrate the absence, instead of the presence, of such a purpose as the appellee ascribes to the words "all wheat," in the fifth section, and the [**31]  alleged "carefully distinguished duties of the inspectors, in regard to wheat and other grain," supposed to be found in the twelfth section.

That we must ascertain the intent of the Legislature is an elementary canon of construction, but to arrive at this intent every part is to be considered, and the intention is to be extracted from the whole law and the subject matter to which it relates. 2 Cranch, 386, Fisher vs. Blight. 4 G. & J. 152, Canal Co. vs. Rail Road Co. 14 Pet., 178, Brewer vs. Blougher. Construing this act by these rules, we say, that the object of the law was to place between the buyer and seller of the wheat and other grain, an impartial officer of the law, with duties defined, and made responsible for their faithful performance by a bond and an official oath; that the whole law evidently contemplates the same old time honored practice of estimating wheat, as well as other grain, by the use of the "bushel measure" and "scales," in the old mode by "accurate bushel measure," and "accurate" scales, under the supervision of sworn officers.

Any other construction of the law than that we have placed upon it, would render the whole law utterly inoperative, for [**32]  it would be utterly impossible to weigh every bushel of wheat that is brought to the Baltimore market for sale, and the delay and expense attending such an attempt would be ruinous, oppressive and enormous, and in fact render the law wholly impracticable.

John Nelson and Robert J. Brent for the appellee:

This case involves two leading inquiries:

1st. What is the true construction of the act of 1858, ch. 256? What duties does it impose upon the appellant, and what obligations upon the appellee?

2nd. Assuming that the interpretation insisted on by the appellee is correct, and admitting, which is not denied, that the appellant refused to discharge his duty under said act, in accordance with such interpretation, had the court below authority, by injunction, to restrain the appellant from proceeding in his suit, instituted before the justice of the peace, to recover the penalty under the 15th section of said act?

The first question is to be determined by a consideration of the act itself, and by a careful collation of its several provisions. The object of the act is apparent. It designed to provide for the inspection, measuring and weighing, of the various descriptions [**33]  of grain usually brought into the Baltimore market for sale. Of these wheat, is uniformly sold by weight, other grains by quantity or measurement. Inspection is common to both classes, and the mode is prescribed in the third section. The grain having been inspected, what is the further duty and authority of the Inspector General? In regard to this, the court will find his duty prescribed by sections five, ten and twelve. The court will perceive, that by the first and third sections, the Inspector General is required to inspect all grain coming into the Baltimore market, and the mode of inspection is, in cases where lots of grain are mixed, which in cargoes of any extent is almost invariably the case, to take from the bulk two average samples of each lot. By the fifth section, he is required carefully to weigh and determine the weight of all wheat that shall be inspected by him, and, for that purpose, shall procure suitable weights and scales. Now, we think that, all wheat means all and not a part, and that the duty to weigh all is not fulfilled by weighing one-sixtieth part of the wheat inspected. And the tenth section justifies this interpretation, because it requires the inspector [**34]  to swear, that he will "diligently and carefully weigh and inspect all grain," &c. And the court will find, upon looking at the twelfth section, that the Legislature has carefully distinguished the duties incumbent on the inspectors, in regard to wheat and other grain. Thus, they are required to make a daily return, verified by affidavit, to the Inspector General, of the number of bushels of grain inspected by them, and the Inspector General is required to keep a record thereof, and to charge and receive for the inspection and weighing of wheat, one cent per bushel, and one-half cent per bushel for all other grain; and he is required to report to the comptroller, the number of bushels of wheat weighed and inspected, and the number of bushels of other grain, inspected, and he is to receive one-half cent for every bushel of wheat weighed and inspected, and one-quarter of a cent upon all other grain inspected.

It is thus clear, as we suppose, that the design of the act was to give to the merchant purchasing wheat, the advantage of the only true test of value, that of weight; and that in requiring the Inspector General, and his deputies, to weigh all wheat inspected by them, he is [**35]  required to weigh every bushel, and not to weigh a part only, one-sixtieth it might be of various parcels of different values and weight, which frequently make up a cargo. And this would seem to be the conceded construction of the act, by the counsel for the appellant, since they seek to interpret it, by reference to a pre-existing usage, admitted to have existed in Baltimore before the passage of this law. It strikes us, however, that the Legislature, in the enactment of 1858, designed to correct the very usage relied upon, and that the purpose of the law can only have been, to substitute for this uncertain mode of ascertaining the weight and value of wheat, the precise and fixed rule to which we have already referred. Besides, we suppose it to be clear, that no such usage can be interpolated into a law, the terms of which are definite, and susceptible of a satisfactory interpretation, upon its own provisions, the more especially, as the effect of such an interpolation would be, not only to add to and vary, but to change the entire system. Since, if the usage is to control the law, instead of ascertaining the quantity by weighing, the weight would be ascertained by measuring, thus [**36]  reversing the rule prescribed by the act. The appellant would make this law operate merely to tax the community for his benefit. Usage prior to a contract, may explain the meaning of the terms used in it, if it is so uniform and general, that parties are presumed to contract with reference to it, but even then it cannot change a plain term of the contract or a principle of law. 6 Md. 49, Foley & Woodside vs. Mason & Son. But usage, prior to a statute, can never be regarded in its construction, because, if designed to be the rule, the Legislature can incorporate it into the law. There was no law upon this subject before the act of 1858 was passed, and the object of that act must have been to correct and reform fraudulent practices that were supposed to prevail, and take the whole subject under its control. The statute must be construed by itself, and when it requires all wheat to be weighed, it would be absurd to make it read, that only one-sixtieth part shall be weighed, because, by usage among merchants in Baltimore, previously existing, only one-sixtieth part was weighed. The only question in regard to usage has been, whether a statute can be interpreted by a long usage after [**37]  and under it. 1 Thos. Coke Litt., 44, note a.

If these views are well founded, it is clear, that the Inspector General, in refusing to weigh the wheat as required by the appellee, omitted to discharge his duty, was in default, and perpetrated an official wrong. In this condition of things, what was the appellee to do? Read the agreement of facts, and the correspondence, and the court will perceive, that the appellee had purchased the wheat in question, and that his own obligation as well as the necessities of trade and commerce, required that his contract should be executed. And the refusal to weigh by the agents appointed by law, and the necessity of some remedy to the parties who had a right to prosecute their trade, interposed an immunity for doing that which could in no other way be done. Suppose all the inspectors were dead, or no one could be induced to act as such, would the community be required to stop business? Did the Legislature ever contemplate that this law, or the officers appointed under it, should, at their will, supercede the activities of commerce, and arrest the trade of a great commercial community? or that the merchants were to be prosecuted and fined, for [**38]  doing what was indispensable, to enable them to prosecute their lawful enterprises, because there were no public officers willing or ready to discharge their duties? This is the practical question, and the whole context of the law shows the legislative intention to have been, to punish the private weigher for doing that which was exclusively the privilege and duty of the public weigher, when there was a public weigher, prepared to execute the law agreeably to its provisions. Holcombe's Digest, 587, 588. Coke Litt., 31. If the public weigher were dead, or none appointed, the weighing by private individuals is allowed, by necessary implication, rather than ruin or arrest of the business of a whole community. If this be so, a fortiori must it be when the public weigher absolutely refuses to discharge his duty, and to weigh the wheat. If he had weighed it there would have been no necessity for the party to act, and if he had afterwards weighed the wheat for his own satisfaction, it would not have amounted to an offence, since it had already been weighed by the public officer. If the appellee has committed any offence, therefore, he has done so necessarily, because of official default of [**39]  the appellant.

We unite with the counsel for the appellant, in requesting the court, in any event, to give a construction to this act, by which means alone a vast amount of vexatious litigation can be avoided. Many other cases are already pending.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*300]  BARTOL, J., delivered the opinion of this court.
The question which gave rise to this controversy, involves the construction of the act of 1858, ch. 256, and inasmuch as that question has been fully argued, and the solicitors on both sides have united in expressing the wish, that the judgment of this court should be pronounced thereon, for the purpose of definitively settling other cases, now pending and awaiting the decision of this, we deem it unnecessary to pass upon the question of jurisdiction. For conceding that the Superior court had jurisdiction over the case, without however so deciding, it is admitted by the appellee, that if the construction of the act, claimed and insisted on by him, be erroneous, he is not entitled to the relief prayed in his bill of complaint, and the injunction granted by the Superior court must [**40]  be dissolved. It appears from the record, that the complainant, with his partner in trade, on the 1st of July 1858, had contracted with a certain William S. Pawson for the purchase of a lot of wheat, represented by sample. The wheat was delivered at the warehouse of complainant, and the appellant, Frazier, the Inspector General of grain in and for Baltimore city, was notified that the same was ready to be measured and weighed. The appellant proposed to measure said wheat, and to ascertain its weight by weighing one bushel in every sixty, according to the long established usage in Baltimore. The complainant objected to that mode of weighing, and insisted, that the appellant was bound, under the law, to weigh the whole parcel, and upon the refusal of the appellant to adopt that construction of the law, the complainant proceeded to have the same measured and weighed, himself, and thereupon, proceedings were instituted against him before a justice of the peace, to recover the penalty under the 15th section of the act. Then, on application of the complainant, the Superior court, sitting in equity, issued an injunction to restrain the 

 [*301]  proceeding before the justice of the peace,  [**41]  and from the order of said court refusing to dissolve the injunction, this appeal was taken.
It is admitted in the case, "that the practice of weighing wheat in the city of Baltimore, prior to the act of 1858, ch. 256, always has been, to weigh one bushel in sixty, as the index or mode of determining the weight between the buyer and seller; and that in this case the inspector was ready, and offered to weigh the wheat according to said practice, and that the inspector refused to weigh the wheat in any other mode, and has ever since refused to weigh wheat in any other mode; and that the complainant, in consequence of such refusal, and alleging that the law did require all the wheat to be weighed, proceeded to weigh the same, by weighing one bushel in every sixty, in order, as he alleged, to ascertain the true quantity of wheat in the lot, which he and his partner had purchased of said Pawson, and which lot being contracted for at a given price per bushel, and the number of bushels not being known at the time of the contract, the complainant weighed the wheat in manner aforesaid, and he and his said partner paid and settled for said lot of wheat, as of the quantity ascertained by such [**42]  weighing of one bushel in every sixty, by the complainant as aforesaid."
Upon this state of facts, the question presented for our decision, is, whether the inspector, by measuring and weighing the wheat in the mode proposed by him, was fulfilling the requirements of the act of 1858? The principles which govern courts of justice in the construction of statutes, are simple and well defined. Among them the cardinal one is, that the intention of the Legislature shall be carried out. That intention is to be collected from the words of the statute, by considering every part of it. 2 Cranch. 386.
It may also be ascertained, by considering "the cause or necessity of making the act, or from foreign circumstances." 4 G. & J. 152.
Guided by these rules, we have but little difficulty in coming to a conclusion, upon the proper construction of the act of 1858, and ascertaining the true intent of the Legislature in 

 [*302]  passing it. The object and general purpose of the law was, to provide a competent and suitable officer, to inspect grain sold in the city of Baltimore, and to ascertain, with fairness and accuracy, the true quantity sold by weighing and [**43]  measuring; to establish a system by which the Legislature supposed the former would more honestly receive, and the merchant more honestly pay, exactly for what is sold and bought. The act proposes to accomplish this result, not by introducing a new mode of weighing and measuring, but (to use the language of the judge of the Superior court) by placing "between the buyer and seller, an impartial officer of the law, with duties defined, and their faithful performance secured by a bond and an oath."
Great stress has been laid, by the appellee, upon the language of the 5th section. It is in these words: "That the said inspectors shall also carefully weigh and determine the weight of all wheat that shall be inspected by them, or carried to the said city for sale, and for that purpose shall procure, at reasonable and proper cost, suitable weights and scales to effect the purpose herein contemplated."
It is said, that the weight of a lot of wheat cannot be ascertained, without weighing all and every part of it. "That all means all, and nothing less." This view of the case would confine us to the words of the 5th section alone; our duty is to look at the whole act, and to construe it [**44]  by considering all its provisions.
"The office of a good expositor of an act of Parliament, is, to make construction on all the parts together, and not of one part only by itself; nemo enim aliquam partem recte intelligere possit, antequam totum iterum atque iterum perlegerit." 3 Coke Rep., 59.
The act requires that all shall be inspected; yet it is obvious by the words of the 3rd section, that the Legislature designed, that by the inspection of two fair average samples from any lot, the quality of the whole lot should be determined. Why not then ascertain the weight of the lot, by weighing a fair average portion of it and measuring the whole? If the whole is to be weighed to determine the quantity, why require it to 

 [*303]  be measured at all? If the construction of the appellee is correct, measuring would be useless; yet the act, throughout, constantly associates the measure of wheat, "the bushel" with the weight. The Legislature requires the quantity to be ascertained by weighing and measuring. What is meant by these words as used in the act of Assembly? Now, looking at the admitted facts in this case, it seems to us that the terms, weighing and measuring [**45]  wheat in the city of Baltimore, have obtained a certain and definite meaning; if so, that meaning must be given to the words of the statute.
"It is a familiar rule, that words in a statute shall be taken in their accepted and known sense." Medley vs. Williams, 7 G. & J. 61.
Again, it is admitted that an immemorial usage has existed in Baltimore, by which the weight of a lot of wheat, as between buyer and seller, has always been ascertained by weighing one bushel in sixty. If the meaning of the words of the act be uncertain, the law authorises us to resort to the usage for their interpretation.
"Doubtful words, in a general statute, may be expounded with reference to a general usage, and when a statute is applicable to a particular place only, such words may be construed by usage at that place." Love vs. Hinckley, Abb. Adm., 436.
This rule is founded in reason and common sense, and is peculiarly applicable to the case before us. The Legislature must be presumed to have acted with a knowledge of the usage existing in Baltimore, and if it had been their purpose to inaugurate a new mode of weighing, they would have declared their intention in plain and unequivocal [**46]  terms.
We think there is great force in the argument, based on the inconvenience that would result from adopting the construction claimed in this case by the appellee. When we consider the immense quantity of wheat which finds a market in the great commercial mart of our State, it is perfectly obvious, that it is almost, if not entirely, impracticable, to weigh every bushel. To give such a construction to the act, would be to subject the community to the greatest inconvenience, expose 

 [*304]  the parties interested to enormous expense and delay, and entirely frustrate the whole objects of the law.
Chief Justice Marshall, in the case of Fisher vs. Blight, 2 Cranch 358, said: "It is also true, that where great inconvenience will result from a particular construction, that construction is to be avoided, unless the meaning of the Legislature be plain, in which case it must be obeyed."
No sound rule of construction can authorize us, to impute to the Legislature a purpose in passing the act of 1858, which would entail such mischievous consequences as we have described, or make the statute nugatory.
Whatever may be the differences of opinion with regard to the [**47]  policy or expediency of the law, our duty in administering it is, to give effect to the legislative will, fairly ascertained and interpreted, according to established rules of construction.
We are of opinion that the order of the Superior court, from which this appeal was taken, ought to be reversed, and the bill dismissed, and will sign a decree accordingly.
Order reversed and bill dismissed, with costs to appellant. 

177 of 196 DOCUMENTS 

MARY GREER vs. GEORGE BAUGHMAN and others, and MARY JANE BAUGHMAN and others vs. MARY GREER and others.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

13 Md. 257; 1859 Md. LEXIS 27 

March 31, 1859, Decided 

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

The original bill in this case was filed by Mary Greer, on the 30th of December 1852, and claims as her property a lot of ground in the city of Baltimore, improved with a brick dwelling house, which she alleges was, at her request, contracted by George Baughman, as her agent, to be leased to her by James Howard McHenry, for a term, renewable forever, and which with her moneys was improved with the dwelling house, but through some inadvertence of the lessor's agent and of Baughman, the lease, dated the 4th of June 1843, was executed by McHenry to Baughman, instead of the complainant, as lessee; that this was done without her knowledge at the time, and did not become known to her till long afterwards, when the proper correction was promised by Baughman and said agent, or that Baughman would assign the said leasehold property to her or as she might direct, and that Baughman, believing such to be the direction or the wish, or the eventual purpose of the complainant, did convey the said premises to Wm. J. Ward, in trust, for the separate use of his wife Mary Jane Baughman, the complainant's daughter, and in case of [**2]  her death, for the use of her children by the said Baughman, by a conveyance, dated the 31st of December 1845, which was recorded some years thereafter, and immediately following, and at the same time with the original lease. The bill also states, that Baughman becoming indebted and removing from Baltimore, certain of his creditors attached this property and recovered judgments of condemnation against it to satisfy his debts. The bill also states, that the complainant wishes the property to be sold under a decree of the court, and avers that a sale will be beneficial for her daughter and children, should they prove entitled to the property under the deed of trust, and that a sale is necessarily the object of the creditors who have attached, for any benefit they may ultimately claim from the property, and that under the various and numerous, and conflicting interests involving the property, no sale can be had by any arrangement or understanding. The bill then prays a sale and an investment of the proceeds, to abide the controversy in the case, and finally prays that such proceeds of sale may be decreed to the complainant, or as she may appoint and direct.

To this bill the attaching [**3]  creditors, Baughman and wife and their infant children, and Wm. J. Ward, the trustee in the deed of trust of the 31st of December 1845, were made defendants.

The creditors, in their answer, denying all the other allegations in the bill, and the jurisdiction of the court over the case, admit that they are creditors of Baughman, and have levied attachments upon the property in controversy, and recovered judgments of condemnation against the same, which judgments they insist are final and conclusive as to the right of property in the premises, and as to all matters in controversy in the attachment suits. They also admit, it would be for the advantage of all parties concerned, that the property should be sold, and the proceeds invested, pending the controversy, under the direction of the proper tribunal.

Baughman and wife in their answer fully admit all the allegations of the bill. Their infant children answered by guardian; and Ward in his answer says, he believes the lease was, as stated in the bill, made by mistake to Baughman instead of the complainant, and that the lot so leased was, in fact, improved with the proper means of the complainant as stated in her bill, and that [**4]  Baughman was never the owner of the property, but that it was, in truth, the estate of the complainant, and as such, ought now to be disposed of as prayed by her bill, and for her use and benefit.

An agreement was then made by all the parties interested, that a decree for a sale of the property should be passed by the court, which was accordingly done, and the sale was made and ratified, and the proceeds brought into court and directed to be invested.

Testimony was then taken on both sides, which is fully stated in the opinion of this court. The short copies of the judgments with the docket entries and pleas in the attachment cases, which by agreement were to be used in this court as full records, show that Wm. J. Ward, interposed in those attachment suits, and filed a plea claiming the property under the deed of trust to him above referred to.

After the testimony had been closed, Mary Jane Baughman and her infant children, filed a cross-bill in the cause, praying that the proceeds of sale may be adjudged to them, conformably to the aforesaid trust conveyance in their favor. To this cross-bill, Mrs. Greer, the original complainant, Baughman, the attaching creditors,  [**5]  and Ward, were made defendants. On this bill subpoenas were issued and returned summoned, but no other proceedings appear to have been taken thereon.

The court (LEE, J.) then passed the following decree in the cause: "This cause having been argued, and the bill, answers, evidence and other proceedings, having been read and fully considered, it is thereupon, this 9th day of February 1856, adjudged, ordered and decreed, by the Superior court for Baltimore city, and the authority thereof, that the bill heretofore filed in this cause, be, and the same is hereby dismissed with costs."

The original complainant, Mrs. Greer, filed a petition, praying the court to transfer and remove this case, and all the papers and proceedings therein, to the Circuit court for Baltimore city, according to the act of Assembly in such case made and provided. This petition the court dismissed and refused to direct the removal therein prayed, and by an agreement in the cause, it appears that this motion to transfer was made after the judge of the Superior court had pronounced his opinion dismissing the bill.

Mrs. Greer, the complainant in the original bill, and the complainants in the cross-bill,  [**6]  then appealed from the decree dismissing the original bill, and from the order of the court upon the petition of Mrs. Greer, praying the removal and transfer to the Circuit court for Baltimore city.  

DISPOSITION:
Cause remanded, under the act of 1832, ch. 302, without reversing or affirming.  

HEADNOTES:

A resulting trust may be established by parol proof, but the proof must be clear and convincing that the purchase money was paid by the cestui que trust, for otherwise titles depending on deeds and other written instruments would be rendered insecure.

The testimony of a witness, in whose name the paper-title stood, (and who, by the direction of his mother-in-law, had conveyed the property in trust for his wife and children,) to show a resulting trust in his mother-in-law, should be received with caution as coming from a witness operated on by a strong bias.

The evidence of such a witness, showing that his mother-in-law had the means to and did make the purchase, unsupported by other material testimony, and contradicted by other proof of her circumstances and condition in life creating a serious doubt whether she possessed the means to make the requisite payments, is insufficient to establish a resulting trust in her.

The property in controversy having been attached by his creditors as the property of the party in whose name the paper-title stood, and judgments of condemnation recovered, and the property, by an agreement, having been sold, and the proceeds brought into court, such creditors having judgments on attachments based upon claims existing prior to the date or previous to the recording of an assignment made by the debtor in favor of his wife and children, are entitled to the fund.

A motion to transfer a case from the equity side of the Superior court of Baltimore city to the Circuit court for said city, made after the judge of the Superior court had pronounced his opinion dismissing the bill, comes too late, and was properly refused.  

COUNSEL:
Oliver Miller and Charles F. Mayer, for the appellants:

The testimony in the cases, we think, clearly establishes in Mrs. Greer, the ownership of the property in question, by way of a resulting trust, against the deed made by Baughman to Ward. The evidence of Baughman, Wood, and Shipley, and the contract between Mrs. Greer and Shipley for the building of the house, proves: 1st. That the lease was originally intended for Mrs. Greer, and by mistake was made to Baughman; that she authorised Baughman, as her agent, to contract with Wood, the agent of the lessor, McHenry, for the lease to her. 2nd. That the property was improved by her means. The only value of leasehold property of this kind, consists in the improvements put upon it, and the increasing price of city lots. Can there be a doubt, upon this testimony, that she made the improvements in question? The contract for building the house was made [**7]  in her name, she superintended and controled its erection, from the time it was commenced until it was completed, and lived in and occupied it as her own from that time forward. She paid for it with her means, principally with city stock purchased for her by Baughman, with her moneys invested, first in rail road scrip, and then converted into such stock. Baughman fully explains how this was done, and that the stock was placed in his name only for convenience, and as agent of Mrs. Greer his mother-in-law. 3rd. That Mrs. Greer had the means wherewith to make such improvements. Baughman fully explains how this was accomplished, and upon cross-examination states how she received money. The only evidence on the other side, consists of loose declarations, and vague conjectures and inferences as to her poverty, made by witnesses who confess they had no actual knowledge of her means.

As to the law in such a case, it is well settled, that a resulting trust, or a trust by operation of law, can both be constituted and proved by parol, because such trusts are expressly exempted from the operation of the statute of frauds, and it makes no difference that the property in which such a trust [**8]  arises is leasehold. 2 Story's Eq., secs. 1201, 1201 (a.) 2 Spence's Eq., 219. 8 Gill 357, Hays. vs Hollis. The creditors of Baughman, were in no way prejudiced, misled or defrauded by the mistake as to the lease being taken in his name, because the proof shows that it was not recorded until, and at the same time with, the assignment or deed of trust, after they became such creditors. They were, therefore, not misled by the record title, for so far as the record disclosed any information, it showed that the property did not belong to him, and they could not have trusted him upon the faith of his apparent ownership of, or of the record title to, the property.

If we are right in the position, that there was a resulting trust in Mrs. Greer, we then say that this trust estate could not be conveyed by parol in the form of a request, and especially not in the case of a voluntary conveyance. The statute of frauds requires the trust to be manifested or proved by writing, signed by the party who is by law enabled to declare the trust, otherwise it is void, and the 9th section of the statute also requires the assignment of any trust to be in writing. 7 G. & J. 163, Maccubbin vs.  [**9]  Cromwell. Willis on Trustees in 10 Law Lib., 20, 21. Now Mrs. Greer being the owner of this property, by way of resulting trust, she is the only party by law enabled to declare a trust therein in favor of her daughter and her children, and if she undertakes to do this, she must conform to the requirements of the statute of frauds, and do it in writing, for any attempt to do it by parol would be an evasion of the statute, and a trust so created or declared would be void. Baughman had no power to execute the deed of trust to Ward, for he was not the party by law enabled to declare such a trust, being in fact the mere holder of the title for the benefit of Mrs. Greer.

If Mrs. Greer then was entitled to the property, by way of resulting trust, and has not validly parted with that title by the parol declaration of the trust in favor of her daughter, Mrs. Baughman, and her children, the next question is, whether the attachment proceedings of the creditors, have in any way deprived her of it, or concluded her rights? Upon this point there is no room for doubt, for Mrs. Greer was no party to those proceedings, never interposed any claim to the property in those suits, and, by the very [**10]  authorities, cited on the other side, of Ranahan vs. O'Neale, 6 G. & J. 298, and Trieber vs. Blocher, 10 Md. 14, is in no manner bound by such proceedings. See, also, Drake on Attachments, 221 to 223. If, therefore, this court should sustain Mrs. Greer's title by way of a resulting trust, and that she had not parted with it, the case is free from all difficulty.

But if the court should be of opinion, that there was a valid declaration of the trust by Mrs. Greer, in favor of Mrs. Baughman and her children, and that the deed of trust to Ward is valid, then it is insisted, on the part of the complainants in the cross-bill, that under this deed they are entitled to these proceeds. It is conceded on the other side, that the assertion of their claim by way of a cross-bill is proper, and that the decree dismissing the original bill strikes down the cross-bill, and authorises an appeal on the part of these complainants therefrom. The question then is, have these complainants any rights under the deed of trust in their favor? And this depends upon the further question, whether the fact, that Ward, as trustee under this deed, interposed a claim of property in the attachments suits,  [**11]  and that the verdict and judgment was in favor of the creditors on that suit and on that plea or claim, concludes the rights of the cestuis que trusts under the deed?

It is submitted, that the inquiry into their title in the attachment proceedings, cannot have the effect of debarring their claims, because a judgment of condemnation in attachment, only gives the right to an execution, and all that an execution against real property can do, is, that it authorises a sale of such interest only as the defendant debtor may have therein; a judgment in attachment gives but right to execution and no title to the property. Acts of 1795, ch. 56, sec. 1, and 1715, ch. 40. 2 H. & J. 101, Owings vs. Norwood. 3 H. & McH., 597, 619.

Nor are the cestuis que trust bound by the act of the trustee in going in and filing this claim, of property. As a general rule, the cestui que trust will not be subject to any disadvantage which may arise from the trustee personally, on account of his being seized of the legal estate, nor will he be prejudiced by the trustee doing what the trust does not authorise, or injured by his not doing what it is his duty by the terms of the trust to perform. Willis [**12]  on Trustees, in 10 Law Lib., 57, 58. It was no part of the duty of this trustee under the deed of trust, to interpose this claim in the attachment proceedings. He was the mere holder of the naked legal title, and to hold, that this act on his part would forever debar the rights of these infant cestuis que trust to this property, would be in the highest degree inequitable; and it is, therefore, respectfully submitted, that these proceeds belong, and should be awarded to these complainants.

But finally, whatever may be the decision of this court upon the question of ownership of this property, the decree below is wrong and must be reversed. That decree dismissed the bill, and thus puts the whole case out of court, and yet the funds are in court under a decree passed by it for a sale of the property. Instead of dismissing the bill, the decree should have directed the fund to be paid over to the parties entitled to it.

Malcolm, Nelson and Horwitz, for the creditors:

The motion to transfer the case to the Circuit court for Baltimore city, was properly overruled, because it was made too late. If this motion can be sustained, the opinion of two inferior tribunals may be always [**13]  had in each case, for all that is necessary to be done is to wait until the opinion of the court is pronounced, and then the party against whom the opinion may chance to be, is entitled to have the benefit of a new trial before another court. This is not the meaning or true construction of the act of Assembly. It never designed each case should be tried twice.

Was not the court equally right in dismissing the original and cross-bills? In the first place is it not clear, that Mrs. Greer has no interest in the property? Her bill is not a bill for the correction of the alleged mistake in the execution of the original lease, nor to reform that lease or the deed of trust. It simply alleges there was a mistake originally made, and when it came to her knowledge the proper correction was promised, or that Baughman would assign the property to her, or as she might direct, and that Baughman, believing such to be her wish, transferred the property to Ward, by the deed of trust. There is no pretence that this transfer was not by the direction, or in accordance with the wishes of the complainant, and Baughman proves that it was by her direction, at her instance and at her request, that he [**14]  executed it. If the evidence of Baughman proves there was a mistake in the original lease, the same evidence proves that Mrs. Greer has parted with her rights, and has no longer any interest in the property. But it is said, although this may be true, yet the deed of trust is of no avail because Mrs. Greer's trust estate could not be conveyed by parol in form of a request, and especially not in the case of a voluntary canveyance, and in support of this position the case of Maccubbin vs. Cromwell, 7 G & J., 157 is referred to. That was a case in which the deed was absolute on its face, and the effort was to engraft on it a trust by proof aliunde, and the court held that the statute of frauds does not prove that trusts shall be constituted by writing, but that they shall be proved by some writing signed by the party who creates them, and then go on to decide that the admission in the answer of one of the defendants was sufficient proof in writing to establish the trust and engraft it on the deed. Here, however, we have the trust fully declared in the deed, signed by the party who creates it, and if any link were wanting to make the chain perfect, the bill filed in this case (as the answer [**15]  in Maccubbin vs. Cromwell) setting out the deed of trust and alleging that it was made under the belief that it was by Mrs. Greer's direction, followed by the proof of Baughman, would supply it.

If it be true then, that the deed of trust to Ward is good, are not all the rights of his cestuis que trust disposed of by the attachment cases tried at law? The proceedings in these attachment cases show that Ward, as claimant of the property in question, pleaded this very deed, and that its validity, and the rights of the parties under it, were put in issue by that plea. It is insisted that the verdict on these issues is conclusive in regard to the rights of the claimant, and all claiming under him. 6 G & J., 298, Ranahan vs. O'Neal. 10 Md. 14, Trieber vs. Blocher.

Again, it is clear that the lease made to Baughman was acquiesced in by Mrs. Greer, that no effort had been made by her to correct it, and that she has directed that another title should be made under it. The deed of lease is, therefore, now according to the intention of the parties. There is no pretence of a mistake in the deed to Ward, and the original lease was assented to in its present form by Mrs. Greer, from [**16]  the fact of her directing that deed to be made. It is now too late, therefore, to go behind it. Certainly so far as the complainants in the cross-bill are concerned, they have no claim except under the lease as it stands, and, so far as Mrs. Greer is concerned, there is no prayer for reforming the lease and destroying the subsequent trust. But the effort is to engraft not an equity by operation of law, but to set up a mistake acquiesced in, to get rid of a trust created, and to obtain the proceeds of the sale of property, not upon a bill filed to correct the error in the one case, or to show fraud in the other, but for a sale of the property to quiet conflicting claims. This is in direct violation of the decision of this court in McElderry vs. Shipley, 2 Md. 35, 37, and on this point also, see the language of Judge Archer in delivering the opinion of the court in Watkins vs. Stockett, 6 H. & J. 444.

But suppose that under this bill and proof Mrs. Greer has an interest in the decision of this case, and that her rights are still open to investigation, what evidence is there that she has any interest in the property, or ever expended one dollar in the improvements? Does not [**17]  the proof show beyond all question that she was extremely poor and dependent for her very subsistence on Baughman's bounty during the very period that it is pretended she built the house in question? The testimony of Cobb, Dryden, Baugher, Jones and Mary D. Turner is referred to as fully sustaining this position. The property was, therefore, not only Baughman's because it stood in his name and the legal title was in him, but it was his because it was paid for with his money--built with his means. To permit the proceeds to be paid over to Mrs. Greer, would be to permit a palpable fraud to be perpetrated on the creditors of Baughman. These creditors became such before the deed of trust was recorded, and some of them as early as July 1845, and this secret trust was devised and executed to defraud them of their just claims.

There is also another view of this case. Baughman was a defendant to the original bill, and was then examined by the complainant as a witness. Now, according to the rule of chancery practice, where a defendant is examined as a witness by the complainant the bill must be dismissed as to him, and, applying this rule to the present case, the bill must be dismissed [**18]  as to Baughman, and being so dismissed the case entirely fails, because the complainant can only reach the creditors through Baughman. On this point see 1 Bland, 268 Lingan vs. Henderson. Adam's Eq., 796.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*267]  ECCLESTON, J., delivered the opinion of this court.
In these appeals it is necessary to ascertain, whether, at any time, there existed a resulting trust in favor of Mary Greer, in the lot of ground described in the proceedings, and now in controversy.
A lease of the property for ninety-nine years, renewable forever, was executed on the twenty-fourth day of June, in the year eighteen hundred and forty-three, by James Howard McHenry to George Baughman. On the 31st of December 1845, he assigned the lease to William J. Ward, in trust for the sole and separate use of Mary Jane, the wife of G. Baughman, and in case of her death, for the use of the children of the said Mary Jane by the said George. The lease and the assignment were both recorded on the 19th day of September 1848.
Mary Greer alleges, in her bill, that the lot was contracted for, at her request, by G. Baughman, as her [**19]  agent, the same to be leased to her by McHenry. That with her moneys the lot was improved by the erection of a dwelling house thereon. But through some inadvertence of the agent of said McHenry and of George Baughman, the lease of the lot was executed by McHenry to Baughman, as lessee, instead of her (the said Mary Greer) being made the lessee; all which was done without her knowledge at the time. And when it became known to her, a long time after, the proper correction was promised by Baughman and McHenry's agent, or that Baughman should assign the leasehold property to her, or as she might direct.

 [*268]  The original bill also states, "that George Baughman, believing such to be the direction, or the wish, or the eventual purpose of the complainant, as she is given to understand and believes was the said Baughman's impression, did, as she finds is the fact, convey said lot of ground, as improved as aforesaid, to William J. Ward, Esquire, of Baltimore, in trust for the separate use of Mary Jane Baughman, wife of the said George and daughter of the complainant, and for the children of said Mary Jane, by her marriage with the said George, 'in case of the death' of said Mary Jane.  [**20]  "
Thus it will be seen, there is no record or written evidence of title to the lot in Mary Greer. She, therefore, can have no claim to the property. nor can her daughter or grandchildren have any, as derived from her, by virtue of the assignment in trust to William J. Ward, unless a resulting trust in Mrs. Greer is sustained by the proof.
In Faringer vs. Ramsay, et al., 2 Md. 365, there was an effort, by the trustee of an insolvent petitioner, to establish a resulting trust in opposition to two deeds. And there the court make a quotation from Dorsey vs. Clarke, 4 Har. & Johns. 557, where it is said: "The authorities are clear, that the payment of the money by the cestui que trust must be clearly proved, otherwise you render insecure titles depending on deeds and other written documents."
The cases on this subject are examined by Chancellor Kent, with his usual ability, in Boyd vs. M'Lean, 1 Johns. Ch. Rep. 582. He there says: "The cases uniformly show, that the courts have been deeply impressed with the danger of this kind of proof, as tending to perjury and the insecurity of paper title; and they have required the [**21]  payment by the cestui que trust to be clearly proved." Although he concedes, that the rule has been established by the weight of authority, which allows parol proof of a resulting trust, yet it is evident, that if the point had been res integra he would have been inclined to think, "that such evidence is too dangerous in its consequences." And he speaks of the case of Gascoigne vs. Theving, (should be Thwing,) 1 Vern. 366, as being a salutary admonition in regard "to the caution with which such proof ought to be examined."

 [*269]  The decision in Boyd vs. McLean was in support of the resulting trust. But it was upon strong and convincing proof, such as the chancellor considered "decidedly in favor of the charges contained in the bill." Three witnesses declared they were present when the parties, being together, made or acknowledged the alleged agreement. In addition to this testimony as to the original transaction, the confessions of the defendant to the same facts were proved by a number of other witnesses. And there were corroborating circumstances of considerable moment. But notwithstanding all this weight of evidence before him, the learned [**22]  chancellor considered it proper to examine the case with much care and minuteness.
In Lench vs. Lench, 10 Ves. 517, where the material evidence came from the trustee, who had been made a competent witness by a release, Sir William Grant, as Master of the Rolls, says: "She swears to no fact or circumstance capable of being investigated or contradicted, but merely to a naked declaration, supposed to be made by the husband himself, admitting that the purchase was made with the trust money. That is, in all cases, most unsatisfactory evidence, on account of the facility with which it may be fabricated, and the impossibility of contradicting it. Besides, the slightest mistake or failure of recollection may totally alter the effect of the declaration." And again, on page 519, it is said: "If evidence of this sort could be proceeded upon, standing unsupported, and in some degree contradicted by the circumstances, it ought to stand wholly uncontradicted by other evidence."
Keeping in view these authorities, which show what clear and satisfactory parol proof is necessary to establish a resulting trust, let us examine the proof now relied upon.
We have seen that the lease [**23]  to G. Baughman is the instrument, in opposition to which Mrs. Greer is endeavoring to show a resulting trust in her favor. In his answer as a defendant, and in his testimony as a witness, he acknowledges that the lot was contracted for by him, as agent for Mrs. Greer, and that the improvements thereon were made by her and paid for with her means. His creditors have laid attachments upon this property, insisting that Mrs. Greer never had any legal or 

 [*270]  equitable title to it, but that Baughman was the real owner, that the improvements thereon were made with his means, and that his assignment of the same was fraudulent as against his creditors. In order, therefore, to secure the property to his wife and children, he was deeply interested in showing that he never had any real title or claim thereto, but that Mrs. Greer was the true owner; at least until the assignment, which he says was made by her direction and at her request. Under such circumstances his statements should be considered with much caution, because they come from a witness operated upon by the influence of a strong bias.
He says, that about nine months after the contract had been made, the lease was executed [**24]  to him by mistake, and when it was presented to him by the agent of the lessor, and the mistake was discovered, either the agent or he remarked it would make no difference, as he could convey it to Mrs. Greer. He does not recollect at what time he first mentioned to his mother-in-law that the lease had been executed to him. She had always said that the lot and improvements were intended by her for his wife. And the assignment from him was made at the instance and request of Mrs. Greer. After the execution of the lease he placed it, he says, in his safe among his private papers, intending to have it recorded the first time he should have occasion to go to the court house, but forgot it until urged by Mrs. Greer to make the conveyance, and after that was done it was placed in the hands of Mr. Ward, the trustee, who he supposed overlooked it as he had done before, and neither the lease nor the assignment was recorded until the 19th of September 1848.
Speaking of the improvements, Baughman says, he does not remember, certainly, what they cost, but believes the same to be about $ 1700, and was paid by the means of Mrs. Greer. Her means, at the time of payment, consisted chiefly of Baltimore [**25]  city 6 per cent. stock. She had some cash to which she added by the sale of valuable jewelry and other personal property, the proceeds of which were put into his hands, which he used in the purchase of "rail road notes," (as they were called,) and invested them in city 6 per cent. 

 [*271]  stock, which, for convenience sake, (as he was to act as her agent,) was always done in his own name he believes. He bought the rail road notes at or about 60 cents, and sold the stock, either in whole or in part, to Sloan, White & Co., at 107 cents, taking lumber in payment, which Mr. Shipley, the builder of the improvements, received as so much cash.
In his testimony, Baughman says, there was a contract between Mrs. Greer and L. G. Shipley, by which the latter was to make the improvements according to a plan agreed upon; that the management of the details of the business connected with the leasing of the lot and making the improvements were attended to by Baughman, under the direction of Mrs. Greer. That some money was paid to Shipley, whether she paid the same herself or through the witness, he does not remember, but the chief payment was made as stated above.
Upon cross-examination this [**26]  witness says, that at sundry times, before and after his marriage, Mrs. Greer, he believes, did receive moneys "as heir-at-law of the estate of Caleb Hall."
L. G. Shipley, a witness for the complainant, states, that he built the house on the lot in dispute, under a contract which was presented to him by Baughman, on behalf of Mrs. Greer, she being first introduced to the witness by him; that the contract for the building was signed by the witness and Mrs. Greer, and witnessed by Baughman. That during the progress of the improvement several changes in the plan were made at the instance of Mrs. Greer. When the house was completed she and her son, then of age, and Mr. Baughman's family occupied it or moved into it. The witness received his payments from G. Baughman. At the commencement of the building, Mrs. Greer told the witness the money which she had for the building was invested in stock, and that she always wanted a few days' notice when he wished for money. He accordingly always gave notice to Baughman, who Mrs. Greer said was to act as her agent.
In the spring of 1843, Baughman offered the witness $ 300 of stock in payment, which he declined taking. The certificates of stock [**27]  were handed to him, when, to the best of his recollection, 

 [*272]  he saw the name of Mrs. Greer on them, and to the best of his recollection it was Baltimore and Ohio Rail Road stock.
The proof shows, that on the 17th of February 1843, Sloan, White & Co. agreed, in writing, to furnish L. G. Shipley, on account of G. Baughman, twelve hundred dollars in lumber, for which they agreed to receive in payment city of Baltimore six per cent. stock, at $ 107 to the hundred, and that they would also receive in payment of Mr. Baughman's account, amounting to $ 227.14, city six per cent. stock, at the same price; all of said stock to be delivered on or before the first of May then ensuing. And, "in the event of Mr. Shipley's failure to complete Mr. Baughman's house, according to contract," it was agreed to return to Baughman the residue of the stock which might be due after deducting the amount of Shipley's account, together with Baughman's account due at the date of the agreement.
On this agreement is the following endorsement:
"Rec'd of Mr. George Baughman, this 2nd day of May 1843, a certificate of city six per cent. stock for thirteen hundred and thirty-three dollars 78/100, with twenty [**28]  dollars interest on same from 1st July, being agreeable to the within statement.
SLOAN, WHITE & CO."
C. B. White, of the firm above mentioned, testifies, that on one occasion Baughman told him, or he was led to believe, from what Baughman told him, that he was making the investment for his mother-in-law. This was when witness called on Baughman for a transfer of city stock, under the contract, and he then said the money, or stock, or notes belonged to his mother-in-law, and he was making the investment for her.
It appears, from the testimony of the deputy register of the city of Baltimore, that on the 29th of April 1843, by the order of G. Baughman, there was transferred to Sloan, White & Co., $ 1333.78 of six per cent. stock of the city; and in addition to this, the witness says, "there was more stock than that."
The transfer clerk in the office of the Baltimore and Ohio 

 [*273]  Rail Road Co. testifies, that no stock of said company has been standing in the name of Mrs. Greer from the year 1840. And there is no evidence that she ever had stock of any kind standing in her name.
N. L. Wood says, he was applied to by Baughman for a lot for his mother-in-law, and as agent [**29]  for J. H. McHenry, the witness agreed to lease the lot now in dispute, which he entered in his book to G. Baughman, without taking any notice in the book of who it was for, and the son of the witness drew the lease according to the entry in the book. After the lease was executed, it was handed to Baughman, and he said "it made no difference as he could make an assignment of the lot to Mrs. Greer." The impression is strong on the mind of witness, that the whole transaction was for Mrs. Greer. Baughman told witness that she had some money which she wanted to invest in a house, and he was doing the business for her.
Except L. G. Shipley, Baughman is the only witness who gives any testimony tending to show, that Mrs. Greer's means or funds were applied to the payment of improving the property. And what Shipley says in regard to this is, that she told him the money she had for building, was invested in stock; that she always wanted a few days' notice when he desired payment, and that Baughman was her agent. Shipley also says Baughman once offered him $ 300 in stock, which he did not take. He thinks it was Baltimore and Ohio Rail Road stock, and to the best of his recollection he saw Mrs.  [**30]  Greer's name on the certificates. In this however he must have been mistaken, as the proof is, that she had no such stock in her own name since 1840.
According to Baughman's testimony, as already stated, Mrs. Greer had funds, which as her agent he invested in stocks, in his own name, and with those means the improvements were paid for. This, however, is evidence coming from a witness deeply interested in defeating the claims of his creditors, for the benefit of his wife and children. And it is unsatisfactory on account of the facility with which it may be fabricated, and on account of the difficulty of investigating or contradicting 

 [*274]  it, as no corroborating circumstances are produced, other than the mere declarations of Mrs. Greer herself.
This witness, on cross-examination, says, he believes that Mrs. Greer, as heir at law of the estate of Caleb Hall, at sundry times before and after the marriage of the witness, did receive moneys from that estate. He merely states his belief on this subject; and without intimating how long before or after the marriage the moneys were received. Nor does he give us the slightest information, professing to be derived from any record [**31]  evidence relating to Mr. Hall's estate, or as to who was the representative of the estate, by whom the moneys were paid. It is not probable that the witness was wholly uninformed in these respects, if he had such information as justified him in believing what he has stated, with regard to the receiving of moneys, spoken of by him.
Moreover, the testimony in support of the allegation, that Mrs. Greer had the means with which she could and did pay for the improvements, is not uncontradicted by other evidence. For surely the testimony of Josiah Cobb, Joshua Dryden, Joseph Baugher and Mary D. Turner, in relation to Mrs. Greer's circumstances and condition in life, is quite sufficient to create a very serious doubt, at least, whether she possessed the means which could enable her to make the requisite payments.
J. Cobb knew Mrs. Greer for more than thirty years. He knew her before and subsequently to the death of her husband, which he thinks occurred prior to the year 1830. After becoming a widow she dealt with witness, as a grocer, for a number of years. She had an account with him up to 1834 or 1835. He considered her honest as far as her means went, and she was a genteel woman, but [**32]  appeared to be in straightened circumstances. Up to the year 1834, she owed witness a balance of $ 20.90, which he thought a pretty large balance for a person in her circumstances, and as large as he could afford to lose, and of course he desired that it should not be enlarged. She afterwards made two payments of five dollars each, on this debt, and the balance remained unpaid. She frequently spoke of her indebtedness to him, and of her wish 

 [*275]  to pay it when she should be able. He never pressed for the money, and never would have pressed her for it. The two payments made were voluntary on her part. The witness has known her since the above transaction, but knows nothing of her circumstances. After Baughman married her daughter, all that was bought from witness was bought in Baughman's name. In making her purchases, after that marriage, Mrs. Greer would come with Mrs. Baughman, and the goods that she purchased were always charged to Mr. Baughman, and it was easy to see that the purchases were made for his family. Witness has no positive knowledge that Mrs. Greer, was assisted by her friends from 1834 to 1847; he never knew that she had any business during that time, though [**33]  it is his impression that she had a few boarders, which helped her to pay her rent. She lived economically. Her general reputation with regard to payment was rather against her, because she was poor and could not meet her bills with promptitude. For four or six years after 1834, witness saw her frequently, since then, not so often. She was a proud woman, and, from his knowledge of her character, he does not think that she would have done any business beneath her. He thinks that if she had been in the rag or iron business he would undoubtedly have heard of it. He thinks, also, that if she had been in such business and had made money, she would have paid him the balance which she owed him, from her voluntary assertions from time to time.
Joshua Dryden says, he has known Mrs. Greer, from shortly after the marriage of her daughter to Mr. Baughman, "which he thinks took place about twelve or thirteen years ago;" (that is twelve or thirteen years prior to December 1855.) Very shortly after the marriage Mrs. Greer rented and occupied, for about a year, a house belonging to the witness. He knows nothing of her circumstances, only that she was tardy in paying her rent; but he always received [**34]  it at last. He has no knowledge as to what property she had; and only knows her by having called on her to ask for his rent. She never let two quarters of rent be in arrear, though she was tardy. He thinks if she had owned property she would not have put him off so 

 [*276]  frequently. There was always property enough to pay the rent by distress, if witness had been inclined to levy one. The rent was $ 250 a year. He thinks that after leaving his house Mrs. Greer went to live with Mr. Baughman.
Joseph Baugher testifies, that he has no knowledge of Mrs. Greer's circumstances, except from what was communicated to him by her son-in-law, G. Baughman. He complained to the witness that he was obliged to support her and a son of her's also. These complaints were made several times, perhaps frequently, from the first of January 1844, down to 1846 or 1847. Baughman and witness were on intimate terms. He has heard Baughman say, that the house was building out of the ladies' pin money, by which witness understood him to mean the money furnished for house-keeping.
Mary D. Turner says, she knew Mrs. Greer from 1839 down to 1842, who was then a widow. During that time the circumstances of Mrs.  [**35]  Greer were limited. Witness thinks they were so, because she refused to take a boarder, unless the lady as a boarder would furnish her own room; Mrs. Greer stating that she was not able to furnish it. The application for board was made by the witness in behalf of a friend, a Mrs. Gregory. She did furnish her own room, and boarded with Mrs. Greer about a year, when she broke up, stating to Mrs. Gregory, that she was not able to keep a boarding house. She kept lady boarders till then, but not to any great extent. She was then living in a house of Mr. Dryden's; and witness was in the house every week. It was plainly furnished.
On cross-examination, Mary D. Turner says, her statement is from her own knowledge. She made the contract for Mrs. Gregory, and heard Mrs. Greer say, that Mrs. Gregory must furnish her own room, as she was unable to furnish it; and also heard Mrs. Greer say, she was not able to keep boarding house. Witness has no knowledge of Mrs. Greer's circumstances, except from the particulars stated.
Should it be conceded, that in such a case as this a resulting trust may be established by parol proof, if sufficiently clear and convincing, we do not consider the present proof [**36]  is of such 

 [*277]  a character; and therefore we must decide adversely to the claim of Mrs. Greer.
We deem it proper to remark, that there is no evidence of any sum having been paid as purchase money, for the lease of the property, either by Mrs. Greer or by any one else. The lease contains a covenant for payment of rent as it might accrue, and such other covenants as are usually found in like instruments. There is none requiring the lessee to make improvements. The lessor covenants, that at any time within ten years from the date of the lease, if it shall continue to exist, the property shall be conveyed, in fee-simple, to G. Baughman, his heirs or assigns, on his or their paying or tendering in payment, to the lessor, his heirs or assigns, the sum of $ 2500, and all arrearages of rent. But there is no pretence that any part of the $ 2500 has been paid or tendered.
The property in contest was attached, in several cases, as the property of G. Baughman. By agreement of counsel the proceedings in those cases were before us, and from them it appears there are several judgments upon such attachments, in favor of some of the defendants in this case, as creditors of G. Baughman. One [**37]  of the largest of them is based upon a claim, bearing date prior to the assignment from Baughman to W. J. Ward, in trust; and some of those judgments were rendered on claims created after the execution of the assignment, but before it was recorded.
The parties agreed that the court should decree a sale of the property in dispute; and such a decree was passed. A sale having been made accordingly, the proceeds were brought into court, and it appears that the nett balance thereof is $ 3504.24.
There is no evidence, whatever, that Baughman, either at the date of the assignment, or since, had any other property than that in controversy. This being so, neither his wife nor his children can have any claim to the property or proceeds thereof, in opposition to his creditors, who have judgments on attachments, based upon claims existing prior to the date, or previous to the recording of the assignment. And such creditors, we think, are entitled to have the fund in court applied to the payment of their claims, according to their respective priorities.

 [*278]  By the decision below the bill was dismissed, and the counsel for the creditors seemed to think, if this court should be of opinion [**38]  that Mrs. Greer has no claim, the decision below ought to be affirmed. But inasmuch as the nett proceeds of the property are in court, under the circumstances stated, we deem it proper to remand the cause to the Superior court of Baltimore city, without reversing or affirming the decree, for the purpose of having the fund in court applied, according to the views announced in this opinion.
In Griffith vs. Buck, & others, Ante, 102, the property in controversy, or a portion of it, was sold by a receiver, and the proceeds, with other funds, were brought into court. Upon appeal the injunction in the cause was dissolved, the order appointing the receiver was reversed; and although it was decided, that the sole complainant in the bill had no claim whatever, the cause was remanded without dismissing the bill. This was done in order that the funds in court might be properly disposed of under the direction of the court.
It is shown, by the agreement of counsel, that the motion to transfer the cause from the Superior court, sitting as a court of equity, to the Circuit court for Baltimore city, was made after the judge of the Superior court had pronounced his opinion, dismissing the bills [**39]  filed in said cause. This being so, we think the motion to transfer was properly refused.
What has been said in the foregoing opinion, disposes of the appeal taken by Mary Greer, complainant in the original bill, and also of the appeal taken by Mary Jane Baughman, and others, complainants in the cross-bill.
Cause remanded, under the act of 1832, ch. 302, without reversing or affirming. 

178 of 196 DOCUMENTS 

CHRISTOPHER ANDRE vs. WILLIAM BODMAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

13 Md. 241; 1859 Md. LEXIS 26 

March 22, 1859, Decided 

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

Assumpsit brought on the 12th of May 1855, by the appellant against the appellee, for work done and materials furnished by the plaintiff to the defendant. Plea, non assumpsit.

1st Exception. The plaintiff, to support the issue on his part, called Justus H. Weber, as a witness, and his testimony being taken subject to all legal exception, he testified, that during the fall and winter of 1854, and January, February and March 1855, the plaintiff had performed certain work, under the written contract produced and proven, as a painter and glazier, and had furnished materials which were used upon a building of the defendant then being erected in the city of Baltimore, and that the value of said work and materials was $ 170 or $ 180; that witness had engaged the services of the plaintiff to do the painting and glazing, in accordance with written contracts entered into between witness and defendant, and that before doing so, the defendant had told him, that he would pay for the work, and he had told the plaintiff, at the time of the employment, that the defendant would pay him; that witness received from the defendant money, at different times,  [**2]  to pay the hands at work on the building, up to the time of witness' inability to go on with his contract, which was about Christmas 1854, and then the defendant agreed to pay the hands who should go on and do the work they had contracted with witness to do.

Then on cross-examination witness proved, that he and Bodman, the defendant, had entered into a contract for the building and finishing the house on which the said work was done and materials furnished, which contract is expressed in the papers set out in the record.

By this contract, which was under seal and dated the 18th of August 1854, Weber agreed to "build and completely finish" a dwelling house for Bodman, on or before the 25th of November 1854, according to a plan, the details of which are set out, for a specified sum ($ 3500) to be paid him by Bodman.

Weber further proved, that notwithstanding this contract, it was the understanding between him and Bodman, that the latter should pay the workmen on the house; that Bodman paid the man who furnished the lumber, the mason, the man who furnished the brick, and the plasterer, and paid to witness only the money to pay the hands doing the carpenter's work, who were [**3]  under his peculiar control; that about Christmas 1854, witness found he was not able to get along with his contract and failed, and it was verbally agreed between him and Bodman, that he should give it up, which he accordingly did; that he continued to work there some time after without reference to the contract, during which time Bodman paid all the hands, and witness was sick for a few days, and when he got well he found that Bodman had put the house entirely under other management, and he was superseded in the work altogether; that when he gave up the contract, about Christmas, Bodman agreed to pay all the bills then due and those subsequently accruing, and that the plaintiff was then at work on the premises, and continued at work there some time after, and that he had not been paid any thing for his work and materials, except the sum of $ 75 which Bodman gave him, at one time, to pay for the glass, and that Bodman never paid witness anything for the painting, or for the purpose of paying the plaintiff.

The plaintiff then proved by Lewis Good, that he was engaged at the carpenter work on said building about Christmas last, when the contract was given up by Weber and he failed;  [**4]  that Bodman told the workmen to go ahead and he would pay; that the plaintiff was there working and continued to work for some time after, and witness thinks his work and materials were worth $ 185.

The plaintiff then offered in evidence the following paper, which was admitted to have been written by the proper agent of the defendant and sent to the plaintiff, and dated "Baltimore, April 10th, 1855:"

"Mr. John C. Andre, Sir:--You will take notice, that I will proceed to have the painting done by you, on house on Fort Avenue, near Fort McHenry, measured on to-morrow morning, the 11th instant, at 9 o'clock, at which time and place you are respectfully requested to attend."

The defendant then proved on his part, by Stein, the signing of the following receipt by the plaintiff, which he also proved had been written by the defendant:

"Received, Baltimore, February 13th, 1855, of William Bodman, seventy-five dollars for J. H. Weber, for glass and on account of painting on the house on Fort Avenue.

(Signed)   CHRISTOPH. ANDRE."

He also produced and proved the following notice of lien from the plaintiff to the defendant:

"To William Bodman, Sir:--Please [**5]  to take notice, that I shall file in the Court of Common Pleas, a lien to secure my claim for work done and materials furnished in the construction of your house on Fort Avenue, to your contraction. You will therefore take such steps as you deem necessary to secure yourself on account thereof. Dated this 4th day of April 1855.

(Signed)   CHRISTOPH. ANDRE."

He also proved, that about the 1st of January, a difficulty arose between Bodman and Weber about the lumber bills, when Bodman said he would pay the balance of all the bills out, if Weber would bring them to Bodman, but that Weber never brought them to Bodman; that Weber continued to work there till about the middle of March, but Andre worked there some time longer.

The defendant thereupon excepted to all the testimony of Justus H. Weber, upon the ground that the said Weber, by reason of interest in the result of this suit, is incompetent as a witness in the cause. The court (MARSHALL, J.) sustained this exception, and the whole of said testimony was ruled out and excluded. To this decision of the court the plaintiff excepted.

2nd Exception. The defendant then called Stein and proved by him the execution of [**6]  the building contract between the defendant and Weber, set forth in the testimony of said Weber. Upon all the testimony then remaining the plaintiff asked the following instructions to the jury:

1st. The court instructs the jury, that if they shall believe, from the evidence, there was a contract between the defendant and Weber for the building and finishing the house, and that the plaintiff, in the first place, agreed with Weber to do the work for him; if they shall further find and believe, that the defendant afterwards undertook to pay the plaintiff for his work, whereby the plaintiff looked to the defendant for his payment, and gave up his claim against Weber, he is entitled to recover so much as has not been paid and satisfied.

2nd. The court instructs the jury, that if they shall believe, from the evidence, that the plaintiff did work on the building of the defendant under a contract with Weber, and was not paid for the same, and that he gave notice to the defendant of his intention to claim the benefit of a lien, pursuant to the provisions of the act of 1845, ch. 176, and that upon such notice being given, the defendant promised to pay the plaintiff for the work, and [**7]  retained the money from Weber, and that relying upon said promise, the plaintiff neglected to file his lien, he is entitled to recover the value of his work, or so much thereof as has not been paid for.

These instructions the court refused to grant, and to this ruling the plaintiff excepted.

3rd Exception. The defendant then asked the court to instruct the jury, that if they find that Weber undertook and agreed with defendant, as set out in the sealed instrument offered in evidence by the defendant; and further find, that Weber went on to build said house, under said contract, and that the plaintiff, during such time, did work and furnished materials in the erection of the building referred to in said instrument; and shall further find, that the defendant knew that the plaintiff was at work upon, and furnishing materials for, said building, and made no objection thereto; and shall further find, that the defendant did not give notice to the plaintiff that he was building said house by contract, then the plaintiff is not entitled to recover, unless they further find, that the plaintiff did such work, and furnished such materials, at the express instance and request of the defendant,  [**8]  provided said plaintiff knew that the work was being carried on, and the house being built, at the time he, the plaintiff, did such work, and furnished such materials, by Weber, as the contractor, under said instrument of writing. This instruction the court granted, and to this ruling the plaintiff excepted.

4th Exception. The plaintiff then further prayed the court to instruct the jury, on all the facts, that if they shall believe, that Weber had the contract with the defendant, and that said contract covered the work done by the plaintiff, it would not affect the right of the plaintiff, if he had no notice that said contract covered the work done by him, and that he was to look to Weber for his payment. This instruction the court refused to give, and to this ruling the plaintiff excepted.

5th Exception. This exception states, in substance, that during the trial, when the decision of the court was made upon the rejection of the evidence, the plaintiff's counsel proposed to write out, at that time, the bill of exceptions, and have it then signed, but the court refused to arrest the progress of the cause for such purpose, and said it must proceed, and that the exception could [**9]  be drawn and signed before the verdict was rendered. The same thing occurred upon the decisions of the court, upon the various prayers in the cause. This being on Saturday, the cause was then argued on the facts and submitted to the jury, and the court adjourned, stating that the plaintiff's counsel should prepare his exceptions, and before the verdict was taken the court would examine and sign them. On Monday morning the plaintiff brought his exceptions, and a disagreement arose between the counsel for the respective parties as to the testimony of Weber, when the plaintiff's counsel proposed to send for the witness in order that his testimony should be duly understood, but this the court refused to allow, as being irregular, the jury having agreed, and being then ready to deliver to the court their sealed verdict in the cause. The judge, thinking it more regular that the statement of facts in the exceptions, which harmonised best with its recollections, should be signed by him, proposed to sign such, and suggested to the plaintiff's counsel, that they should have, if they chose, their own views certified in such other form than by the signature of the court, as the law authorised.  [**10]  The judge, therefore, made such alterations in said statements as he deemed necessary and proper, and signed and sealed the exceptions, and then took the verdict. To all which proceedings the plaintiff excepted, and the verdict and judgment being in favor of the defendant, appealed.  

DISPOSITION:
Judgment reversed and procedendo ordered.  

HEADNOTES:

As a general rule, a party should object to the competency of a witness as soon as he is made aware of it, and where the counsel, at the trial, has in his possession the proof of the witness' interest, he ought not to allow the case to proceed without disclosing the objection.

But where testimony was taken under a reservation of the right to object, and though the counsel for the opposite party had in his possession the papers under which the interest of the witness was supposed to arise, yet such interest did not appear till brought out by the parol evidence, the objection to his competency may be made after the proof is all in.

When the interest of a witness depends upon parol proof, clear and uncontradicted, in connection with documentary evidence, it is for the court to decide whether the witness had a disqualifying interest or not.

Where the interest is of a doubtful nature, the objection goes to the credit of the witness and not to his competency.

A written contract for the building of a house, for a specified sum, was made between the owner and a builder, and then an additional parol agreement was entered into, by which the owner was to pay the hands who did the work. HELD:

That this verbal agreement was but a means of carrying the written contract into effect, and was no variation or change of it.

Where a witness for the plaintiff is so situated, that in case the verdict is against the defendant, the record would be admissible in an action by the defendant against him, for a breach of contract, and in case the plaintiff failed, his testimony could be offered as his admissions in a suit by the plaintiff against him, he is interested on either side, and therefore a competent witness.

Where a contractor agreed with the owner to build a house for him, and employed workmen to do the work, and subsequently the contract was abandoned, and the owner agreed to pay the workmen if they would go on with the work, the contractor is a competent witness for the workmen, to prove such subsequent work and its value.

If the party, to whom a promise to pay is made, gives up, in consideration thereof, a demand against his original debtor, the promise is an original undertaking, but there must be an extinguishment of the first debt as a consideration for the new promise.

Where workmen were employed by a contractor, and the latter subsequently abandoned his contract, they may continue the work for the owner, and if they do so at his request, he is liable for the work done after such request was made.

If a mechanic, working for a contractor, is restrained from filing his claim for a lien, by a promise of the owner to pay him, by which his lien against the property was lost, the owner is liable on such promise, though it be not in writing.

A prayer, that if the jury find certain facts therein stated, then the plaintiff is not entitled to recover, "unless" the jury further find certain other facts, confines the plaintiff's right to a verdict to the hypothesis of the prayer, without reference to the other testimony in the cause.

A prayer which denies the plaintiff's right to recover any part of his claim, when there was evidence which, if believed by the jury, entitled him to recover a part, is erroneous; prayers are also erroneous if there is no sufficient evidence on which to found them.

The time at which, during the progress of a trial, exceptions should be written out and signed, is a matter under the control of the inferior court, and its ruling on that subject cannot be reviewed on appeal.  

COUNSEL:
Jervis Spencer for the appellant, argued:

1st. That Weber was a competent witness and his whole testimony should have been received. Upon either his position as agent, or as having a balance of interest, he was competent. 2 Caine's Rep., 83, Milward vs. Hallett. Addison's Rep., 144, Nessly vs. Swearingen. 2 Mass., 108, Cushman vs. Loker. 4 Blackf., 274, LeClair vs. Peterson. 17 Verm., 593, Abbott vs. Cobb. 2 Hill., 131, Starkweather vs. Mathews. 1 Strob., 33, Ford vs. M'Kibbon. 16 Geo. Rep., 410, Collins vs. Lester. 3 Ala., 455, Hallett, et al., vs. O'Brien. 9 Pick., 298, Munroe vs. Perkins. 3 G. & J. 356, Watts vs. Garrett. 6 H. & J. 178, Bank of Columbia vs. Magruder. 4 Gill 201, Barry, et al., vs. Crowley. Ibid., 223, Buckingham vs. Clary. 6 Md. 541, Melvin vs. Melvin. But if this evidence was not good in the whole, that part of it,  [**11]  at least, which proves the work done and materials furnished by the plaintiff, subsequent to the abandonment of the contract between Weber and the defendant, and upon the special instance and request of the latter, was clearly admissible, for as to this the witness had no conceivable interest, and it was, therefore, error to exclude his whole testimony. 2 Root, 132, Shelton vs. Tomlinson. 3 McLean, 229, Wright vs. Rogers. 3 H. & J. 179, Ringgold vs. Tyson. Again, the objection to the competency of the witness was not made at the proper time. It was too late to exclude it after going into other testimony, and after the evidence was concluded. The objection should have been made and pressed as soon as the interest appeared, and the papers by which it was supposed the incompetency of the witness was established, were in the hands of the counsel for the defendant, during the whole trial.

2nd. That the first prayer of the plaintiff should have been granted; for if the defendant undertook and promised to pay the plaintiff for his work, and the latter was induced by this undertaking and promise, to give up his claim against Weber therefor, this being a detriment to the plaintiff,  [**12]  was a sufficient consideration for the promise of the defendant, and made such promise an original and not a collateral undertaking within the statute of frauds. 3 Hill's (S. C.) Rep., 41, Corbett vs. Cochran. 33 Maine, 368, McKeenan vs. Thissel, et al. 15 New Hamp., 129, Warren vs. Batchelder. 9 Pick., 298, Munroe vs. Perkins. For the same reason, and upon the same authorities it is submitted, that the plaintiff's second prayer should have been granted, for if relying upon the defendant's promise to pay, the plaintiff neglected to file his lien under the act of 1845, ch. 176, this was an abandonment of a right which clearly constituted a sufficient consideration for the defendant's promise, and made it an original undertaking on his part.

3rd. That the prayer of the defendant in the third exception ought to have been rejected. In the case of Munroe vs. Perkins, 9 Pick., 298, already cited, the plaintiff by an agreement under seal, agreed to erect a building at a fixed price, which was not an adequate compensation, and having done part of the work refused to proceed, but upon a parol promise, by the defendant, that he should be paid for his labor and materials, and should not [**13]  suffer, he went on and finished the building, and it was held, that he was entitled to recover in assumpsit upon this parol promise. This case clearly overrules the prayer in question, which denies the plaintiff's right to recover for any part of the work, even that done after the contract was abandoned, and which the defendant had expressly promised to pay for. The plaintiff's prayer in the fourth exception should also have been granted, for it was only explanatory of what appeared indefinite and obscure in that of the defendant.

4th. That the proceedings relating to the exceptions were erroneous, and not warranted by the law or practice of Maryland, and ought to be overruled. 8 Md. 226, Roloson vs. Carson. Act of 1834, ch. 233, sec. 11. 1 Arch. Pr., 210. 2 Tidd., 863. 3 Chitty's Bl., 372. Statute of West., 2. 13 Edward, 1, ch. 31.

Charles H. Pitts and Robert C. Barry for the appellee, argued:

1st. That Weber's testimony was properly ruled out by the court below, for he was directly interested in the result of the suit. He was under contract with the appellee, to build the house referred to, and "completely finish" it: that is, he was to do all the work and furnish [**14]  all the materials. The contract to do painting and glazing was made with the plaintiff by Weber, and the latter was legally liable to pay him, and the plaintiff considered him so liable. The effect of his testimony would have been to exempt himself from liability, and throw it on the appellee. A judgment recovered by the appellant against the appellee, would have been a good defence for Weber, to a suit by the appellant against him. 1 Greenlf. on Ev., secs. 389 to 397. 6 Md. 541, Melvin vs. Melvin.

2nd. The appellant's first prayer was properly rejected, for it assumes, that after Weber had contracted the debt with the appellant, the appellee agreed and undertook to pay the debt. There is no evidence of such agreement and undertaking, and if he did so agree there was no consideration for it, and the agreement was void under the statute of frauds.

3rd. The appellant's second prayer was also properly rejected, for there was no evidence in the cause to support it, and if such an agreement or promise, as the prayer assumes, had been made, it would have been void as a parol promise to pay the debt of another, and without any consideration. 11 Md. 119, Northern Central [**15]  Railway Co. vs. Prentiss. The appellant's neglect to file his lien in time certainly gave him no claim upon the appellee.

4th. The appellant's prayer in the fourth exception, assumes that Weber was building the house by contract, and that the work done and materials furnished by the appellant were embraced by such contract, but does not assume or leave it to the jury to find, that the appellant made his contract with Weber, as agent of the appellee, or that the appellee knew that the appellant was doing work upon, or furnishing materials for, the building. It was not the duty of the appellee, even with knowledge that the appellant was doing such work, to give notice to him that this work was embraced in Weber's contract, and that he must look to Weber for payment. The appellee having no knowledge that the appellant was doing the work, of course could not be expected or required to give any notice about the matter.

5th. The point raised by the exception to the court's refusal to arrest the progress of the cause, and permit the appellant's counsel to prepare and have his bill of exceptions signed, is decided against the view of the appellant in the case of Roloson vs. Carson,  [**16]  8 Md. 208.  

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

OPINIONBY:
TUCK 

OPINION:

 [*250]  TUCK, J., delivered the opinion of this court.
The first exception was taken by the plaintiff, to the exclusion 

 [*251]  of the testimony of Justus H. Weber, who was examined in his behalf, subject to exceptions on the part of the defendant, and who was objected to as incompetent, on the ground of interest, after all the testimony in the cause had been received. The appellant contends, that it was then too late to object. As a general rule, a party should except to testimony as soon as he is made aware of the witness' incompetency, and where the counsel, at the trial, has in his possession the proof of his interest, he ought not to allow the case to proceed without disclosing the objection. Baugher vs. Duphorn, 9 Gill 314. In this case the defendant's counsel had the contracts between himself and Weber, under which the interest was supposed to arise; but he could not know that the claim of the plaintiff was for the same work which the witness had by the contracts agreed to perform, until the parol evidence made it appear. Hallet, et al., vs. O'Brien, 3 Ala. 455. [**17]  Moreover, the examination commenced under a reservation of the right to object, which relieved the defendant from the operation of the rule in its strictness; and, although it might not in all cases warrant the party objecting in reserving his point until after all the proof is taken, we think that, in the present case, it was not made too late. Coates & Glenn vs. Sangston, 5 Md. 121.
In determining the question presented, we must not over-look the state of the trial at the time the objection was made. Other evidence than Weber's had been received, from which it clearly appeared to the court, that he had failed before finishing the defendant's house, and that he had abandoned or given up the contract; and that this plaintiff, and others, continued to work on the house at the instance and request of the defendant, who promised to pay them, and who also said, he would pay the balance of all the bills out, if Weber would bring them in, which, however, he never did. Upon this state of proof, in connection with Weber's, and the documentary evidence, the court was called upon to decide, whether the witness had a disqualifying interest. Trasher vs. Everhart, 3 G. & J. 234. [**18]  Funk vs. Kincaid, 5 Md. 404. If we look alone to Weber's testimony, it is by no means 

 [*252]  clear that he was incompetent. He states expressly, that, although he had the contract with Bodman, and employed Andre to do the painting and furnish the materials, yet, before doing so, the defendant had told him, and he had informed the plaintiff, that the defendant would pay for the work; that it was the understanding that Bodman should pay the hands, (some of whom he designates as having been paid by him;) and that he had never received any thing on account of the painting, or for the purpose of paying the plaintiff. This arrangement may have been made for the accommodation of Andre, in procuring workmen on the credit of Bodman, as well as for the latter's security in discharging so much of the sum which he had agreed to pay for the work; it was but a means of carrying the contract into effect. 5 Md. 121, Coates & Glenn vs. Sangston. 6 G. & J. 490, Reed vs. Chambers. The testimony on this question, as we have said, was for the court, and, considering that of Weber alone without reference to the rest, we think it might well [**19]  have been doubted whether the plaintiff ever credited him at all. If he did not he could have no cause of action against the witness; and if it was even doubtful, whether he did or not, his evidence ought not to have been excluded, whatever the jury might have thought of its value; for, "where the interest is of a doubtful nature, the objection goes to the credit of the witness and not to his competency." 6 Md. 541. 1 Greenleaf's Ev., sec. 390. 3 G. & J. 355.
But suppose he was interested, was it not on either side? If a verdict against the defendant would protect Weber from a suit at the instance of Andre, for the same cause the record would be admissible in an action by Bodman against him for breach of the contract, to show the amount recovered by Andre, as part of the damages resulting from the breach, and Bodman might also recover the costs adjudged against him in favor of Andre. 1 Greenleaf's Ev., secs. 393, 394, 395. Buckingham vs. Clary, 4 Gill 223. And if the present plaintiff should fail in this action, the declarations of Weber, of having employed Andre to do the work, and of the value of his work 

 [*253]   [**20]  and materials, might be offered, as his admissions, in a suit by Andre against him.
Again, if the contract with Bodman was rescinded, as stated by Good and Stein, although he might not be answerable for what the plaintiff had earned up to that time, under the supposed agreement with Weber, can it be doubted, that he would be liable for the work and materials subsequently done and supplied at his instance; for it does not appear that he ever paid even that portion of the plaintiff's claim? If Andre looked, in the first place, to Weber for payment, and, after doing part of the work, passed from his service to that of Bod-man, on an agreement with the latter, he could have no claim against Weber beyond the work actually done at that time; and, as to the subsequent work, its value might as well be proved by him as any other witness. What possible interest could he have in that inquiry? In this view, therefore, he was competent to prove, at least, part of the claim, even conceding, which we do not, that he was incompetent to prove the abandonment of the contract, and the defendant's promise to pay for the prior work. The objection to his evidence should have been overruled.
Upon all the [**21]  evidence remaining, after that of Weber had been excluded, the plaintiff offered two prayers, which were rejected. If the first of these had been confined to a recovery for the work done by the plaintiff, at the request of Bodman, on the failure of Weber to complete his contract, as given in evidence, there could have been no objection to it. There is no testimony to show, that the defendant even paid for the work and materials done and furnished at his own request, and we suppose, as the witnesses speak of the work of the plaintiff having amounted to about one hundred and eighty dollars, they meant all his work and materials both before and after his employment by Bodman, and that this prayer was designed to embrace this whole amount. It impliedly concedes, that the defendant would not be liable for any work and materials, in respect to which the plaintiff had, in the first place, agreed with Weber, as contractor for the building, because the alleged undertaking not being in writing it could not 

 [*254]  be enforced; but, to avoid the effect of the statute of frauds, the prayer requires the jury to find that the defendant afterwards undertook to pay the plaintiff, in such manner [**22]  that he looked to the defendant, alone, for his pay, and gave up his claim against Weber. We have no doubt that a party may become liable without reducing it to writing, where the person to whom the promise is made gives up a demand against his original debtor. The very consideration of the second promise, and the necessary operation of that agreement, is to discharge the first liability at the moment of creating the new one, so that the creditor cannot be said to have two persons charged for the same debt, and if there is only one person liable, there can be nothing to which his promise can be said to be collateral. It must become an original undertaking between the parties to it, the first debt being discharged. "Where, distinct from the original liability, there is a new and superadded consideration for the promise, moving between the party promising and him to whom the promise is made, in such case it is an original undertaking, as in Williams vs. Leper, 3 Burr. 1886, where the defendant, having got possession of goods, which were subject to distress for rent in arrear, promised the landlord (the plaintiff) to pay him the rent, if he would desist from distraining.  [**23]  " Elder vs. Warfield, 7 H. & J. 391. The principle on which the distinction rests is concisely stated by Mr. Justice Buller, in Tatlock vs. Harris, 3 D. & E. 174. If A. B and C agree that A shall pay C a sum that B owes him, the debt of the latter is extinguished, and an original debt created between A and C. See also, Wilson vs. Coupland, 5 Barn. & Ald. 228. Cuxon vs. Chadley, 3 Barn. & Cress. 591. Wharton vs. Walker, 4 Barn. & Cress. 163. Warren vs. Batchelder, 15 N.H. 129. Corbett vs. Cochran, 3 Hill, (S. C.,) 41. McKeenan vs. Thissel, 33 Me. 368. Comyn on Cont., 59. The cases show that there must be an extinguishment of the first debt as a consideration for the new promise. For the purpose of the exception now under consideration, Weber's evidence having been excluded, must be disregarded, and, without intimating that it would lead to a different conclusion--that being for the jury--we do not find 

 [*255]  sufficient foundation for the prayer. If there was an original promise or agreement on the part of Weber to pay the plaintiff, and [**24]  the latter agreed, afterwards, to go on with the work for the defendant, it does not follow, that Weber was thereby released from what he owed the plaintiff on the work previously done. There is evidence that the plaintiff did subsequently look to the defendant, but nothing to show that his discharge of Weber was any part of the consideration for Bodman's promise to pay if he would go on with the work. When the building was suspended under the contract between the defendant and Weber, the plaintiff was discharged from his agreement with Weber, and was at liberty to continue the work for Bodman. This case is similar in principle to that of the Northern Central Railway Co. vs. Prentiss, 11 Md. 119, where it was held, that the company was liable for medical services rendered a person who had been injured on the road, if rendered at the request and on the credit of the company, although the physician had been attending the person at the instance of another party; the liability of the company being restricted to the services rendered after the request made by it.
Much that we have said applies also to the plaintiff's second prayer. If the appellant was restrained from [**25]  filing his claim for a lien, by a promise of the defendant to pay him, by which his lien against the property was lost, the defendant would be answerable on his promise; but the record does not show this. 3 Burr. 1886. It may be, that the plaintiff stopped his proceedings under the expectation of being paid by the defendant; but there is not sufficient evidence on the subject to warrant the assertion in the prayer, that upon the notice given, the defendant promised to pay the plaintiff, and retained the money from Weber; and that plaintiff neglected to file his lien, in reliance on that promise. See Keefer vs. Mattingly, 1 Gill 182. For these reasons the plaintiff's prayers were properly rejected.
As we understand the defendant's prayer, it is obnoxious to two objections; First, It does not discriminate between the work done under the original agreement, alleged to have been made by Andre with Weber, and that supplied after he had 

 [*256]  given up his contract with the defendant. It denied a verdict for the plaintiff for any amount, although the jury might have been satisfied that the defendant owed him for the work done at his express [**26]  request, after Weber's failure, unless they should find a promise to pay, predicated on the hypothesis of the prayer, which overlooked all the evidence in reference to the abandonment of the contract, and the defendant's undertaking at that time. It is true, that if they had found the plaintiff's work, from the beginning, had been done on the promise of Bodman to pay him, as stated by Weber, and that he had given credit, in the first instance, to Bodman, the plaintiff would, under the instruction, have been entitled to a verdict, as upon an original undertaking by Bodman to pay for that of which he was to have the benefit; but the only testimony on that point was Weber's, and the court in granting the prayer, on a given state of facts, after having rejected the only witness who proved the facts, in effect denied the plaintiff's right to recover any part of the claim, when there was evidence which, if believed by the jury, entitled him to recover a part. 1 Gill 151. The word "unless," confined the plaintiff's right to a verdict to the hypothesis of the prayer, without reference to the other testimony in the cause. Cole vs. Hebb, 7 G. & J. 20, 24, 42. [**27]  
Again, the prayer required the jury to find, as a condition of a verdict for the plaintiff, that he was aware, at the time of doing the work, that Weber was building the house under the contracts between him and Bodman, when it did not appear that Andre ever saw, or had knowledge of the terms of the contracts, until produced by the defendant at this trial. With these views of the defendant's prayer, it becomes unnecessary to say any thing of the plaintiff's third, offered in explanation of what was said to be indefinite and obscure in that of the defendant.
As to the time and circumstances of signing the exceptions, though the question is unimportant, inasmuch as the judgment will be reversed, we can express no opinion other than that given in Roloson vs. Carson, 8 Md. 208. It is a matter 

 [*257]  under the control of the inferior court, whose ruling cannot be revised on appeal.
Judgment reversed and procedendo ordered. 

179 of 196 DOCUMENTS 

STATE OF MARYLAND, use of ELDER, GELSTON & CO., vs. JOHN G. REANEY, Adm'r of JOHN T. BARBER of JOHN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

13 Md. 230; 1859 Md. LEXIS 25 

March 18, 1859, Decided 

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

Debt brought in the name of the State for the use of Basil T. Elder and others, creditors of Richard W. Reaney, an applicant for the benefit of the insolvent laws, against the appellee, upon a bond given by the said applicant conditioned for his appearance before the commissioners of insolvent debtors for the city and county of Baltimore, upon which bond the defendant's intestate was surety.

The bond is dated the 25th of April 1846, and is conditioned for the appearance of the said applicant before the commissioners, on the 1st of June then next, to answer interrogatories, and to appear before them for final hearing, on the 1st of August then next.

The suit was brought on the 4th of January 1848, and the declaration alleges, that the said Reaney, before, and at the time of his application, to wit, on the 26th of July 1845, was indebted to the said parties for whose use the suit is brought, in the sum of $ 513.98, and that for the recovery thereof they instituted suit in Baltimore county court, and recovered judgment therefor at January term 1846 of said court, which judgment still remains due and unpaid, and the breach [**2]  of the bond relied on is, that said Reaney did not appear before the commissioners on the 1st of August next after its execution, according to the condition thereof.

The defendant pleaded several pleas, the 3rd, 4th, 5th and 6th of which only need be stated, the others having been abandoned in the court below and in this court.

The 3rd plea alleges, that the insolvent, Reaney, volunteered for the Mexican war, on the 30th of May 1846, and was accepted by the Government of the United States, and served until the 30th of June 1847. To this plea the plaintiffs demurred generally.

The 4th plea alleges, that Reaney applied for the benefit of the insolvent laws on the 25th of April 1846, and that on the 23rd of February 1848, the time for his appearance was extended to the 3rd of June 1848, when he appeared and was discharged. To this plea the plaintiffs replied, that when Reaney applied, the 1st of August 1846 was appointed for him to appear, and he did not, and the commissioners then made a final and unfavorable report in his case, absque hoc that the time was afterwards extended. The defendant rejoined, that the commissioners did change the time for his appearance on the [**3]  23rd of February 1848. To this rejoinder the plaintiffs demurred generally.

The 5th plea alleges, that Reaney applied on the 13th of August 1845 and was discharged, and that afterwards, and within two years, to wit, on the 25th of April 1846, he applied again, and that the bond sued on was given on his second application. To this plea the plaintiffs demurred generally.

The 6th plea alleges, that before the bond sued on was given, to wit, on the 13th of August 1845, Reaney applied, and was discharged on the 8th of January 1846, and that the debt due the plaintiffs was due them before that application, and consequently became discharged. To this plea the plaintiffs replied, that the judgment on which they claim was rendered against Reaney after his application of the 13th of August 1845, to wit, on the 6th of January 1846, and that said judgment is absolute and not subject to the release under said application. To this replication the defendant demurred generally.

The court, (LEE, J.,) by agreement of counsel, entered a pro forma judgment on these demurrers in favor of the defendant, and the plaintiffs appealed.  

DISPOSITION:
Judgment reversed, and judgment for appellants for costs.  [**4]  

HEADNOTES:

The enlistment of an applicant for the benefit of the insolvent laws, as a volunteer in the Mexican war, and his acceptance by the Government of the United States as such, does not relieve him from responsibility to appear before the commissioners of insolvent debtors, according to the condition of his appearance bond, nor relieve his surety on such bond for his failure to appear.

It is no defence to a scire facias against bail, that their principal had enlisted into the army of the United States since their becoming bail for him, and before judgment against him in the principal action.

The act of 1845, ch. 139, sec. 1, in relation to a second application for the benefit of the insolvent laws, does not apply to the city of Baltimore; and the act of 1819, ch. 84, sec. 4, only prohibits a second application within two years, where the insolvent had failed to obtain a final discharge under the previous application.

A debt was due by a party who applied for the benefit of the insolvent laws, and pending this application, and before final discharge, an absolute judgment was recovered against him on the debt. HELD:

That it was competent for the applicant to have pleaded the pendency of his application in the original action against him on the debt, and having failed to do so, he cannot thereafter take advantage of it in any other suit.

Under the act of 1831, ch. 316, the commissioners of insolvent debtors, in the city of Baltimore, have power to extend the time for the final hearing of an insolvent, notwithstanding a previous unfavorable report made by them to the county court.

In pleading such extension of time, by the commissioners, to an action on the applicant's appearance bond, it is sufficient to allege that they did so enlarge the time, and that under such proceedings the applicant was finally discharged; it is not necessary to allege that continuances were properly entered, nor that notice was given; the legal presumption is, that the proceedings of the commissioners were regular and conformable to law.

Where suit is brought on an appearance bond after breach of its condition, and before the subsequent action of the commissioners extending the time and granting a final discharge, such subsequent action is a defence arising after suit brought, and not a complete bar to the action, but when pleaded exempts the defendant from liability, except for nominal damages.  

COUNSEL:
T. P. Scott for the appellant.

1st. The appellants insist, they are entitled to judgment on the issue presented under the third plea, because the act of 1846, ch. 332, did not pass until the 10th of March 1847, after default made by Reaney in not appearing on the 1st of August 1846, according to the terms of the bond, when the appellants' right to sue vested; (2 Gill 79, State vs. Burke. 8 Md. 551, Wilderman vs. Mayor & C. C. of Balto.;) and because the act of Reaney in enlisting was his own voluntary act, and not the act of God or the compulsory act of the Government, which could no more exonerate the sureties on his bond, than his leaving the country of his own will.

2nd. The appellants insist they are entitled to judgment on the issue presented under the fourth plea, because after the final report and refusal to grant Reaney a discharge, on the 1st of August 1846, and after the lapse of the term of the court to which the report was made, the commissioners of insolvent debtors had no authority to open the case on the 23rd of February 1848, (after this suit was brought,) and grant further time to Reaney to appear. Acts of 1819, ch. 84, secs. 1, 4. 1821, ch. 250.  [**5]  1831, ch. 316, secs. 2, 3, 4. 2 H. & G. 374, 379, Munnikuyson vs. Dorsett. 1 Gill 381, Boarman vs. Israel. 8 Md. 95, State, use of Sprigg, vs. Jones. 1 G. & J. 249, Kiersted vs. The State. 10 G. & J. 1, Osbourne vs. The State.

3rd. The appellants insist they are entitled to judgment on the issue presented under the fifth plea, 1st, because even if the second application of Reaney for the benefit of the insolvent laws was unlawful, which is not admitted, yet the bond is good, Reaney having been thereby relieved from imprisonment; 2nd, because there is no law prohibiting a second application within two years, in such a case as this. The second application in this case was made before the act of 1845, ch. 139 went into effect, even if that act applies to insolvent applications in the city of Baltimore, which is denied, and the 4th sec. of the act of 1819, ch. 84, prohibits a second application within two years only in case the petitioner had failed to obtain a final discharge under the first application, which is not be present case; and, moreover, the applicant cannot take advantage of his own wrong.

4th. The appellants also insist they are entitled to judgment [**6]  on the issue presented under the sixth plea, 1st, because if Reaney had a defence under his discharge upon his first application, he should have plead it to the appellants' suit against him; and 2nd, because having suffered an absolute judgment to go against him, he cannot now avail himself of any defence which he might then have had. 6 Md. 305, Kemp vs. Cook. Ibid, 444, Moore vs. Garrettson. 12 Md. 227, Miller vs. Fiery.

Levin Gale for the appellee:

1st. The demurrer to the third plea raises the question, whether an enlistment in time of war relieves a party from responsibility to appear according to the exigency of his bond. The appellee insists that it does, especially since the act of 1834, ch. 336, which assimilated these bonds to bail bonds, (2 Gill 79, State vs. Burke,) where the surety is relieved from his responsibility whenever anything occurs which places it beyond his power to arrest and surrender his principal, and that is exactly the present case, for no civil process can detain a soldier whether he volunteers or not, provided the Government holds on to and claims him.

2nd. On the issues growing out of the fourth plea, the appellee insists,  [**7]  that under the acts referred to by the appellant and the act of 1836, ch. 293, the commissioners had jurisdiction to extend the time of the insolvent to appear, and having extended the time and discharged the insolvent, their judgment, unreversed, is conclusive when brought into issue in this cause. 1 Gill 214, Bowie vs. Jones. See also the Acts of 1822, ch. 102; 1829, ch. 208; 1845, ch. 349, sec. 2.

3rd. The insolvent having applied within two years before the application upon which this bond was given, his second application was void, and it was, therefore, unnecessary for him to appear, and hence the appearance bond was void. Acts of 1819, ch. 84, sec. 1, and 1845, ch. 139, sec. 1. This suit is not against the insolvent but his surety, and there is no objection to the surety making this defence, nor even to the insolvent doing so himself, since his application being void the commissioners should not have recorded or recognized his appearance. 11 Md. 322, Tucker vs. The State. The issues growing out of the fifth plea must therefore be decided in favor of the appellee.

4th. As to the issues arising out of the sixth plea, the appellee insists that the claim of the [**8]  appellants against Reaney was discharged under his application in 1845, and they were not, therefore, competent to sue for any default made by Reaney under his application made in April 1846, and that the judgment obtained on the 6th of January 1846, being obtained before the discharge and pending his application, does not preclude the parties from now pleading the same. The discharge could not have been pleaded to that suit, because it was not obtained till after the judgment was recovered.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*235]  BARTOL, J., delivered the opinion of this court.
This is an action instituted by the appellant on the bond of an insolvent debtor, conditioned for his appearance before the commissioners; on which bond Barber, the defendant's intestate, was surety. The questions arise solely on the pleadings, all of which present issues of law. By agreement of counsel a judgment pro forma was entered on the demurrers for the defendant, from which this appeal was prosecuted.
The suit was instituted on the 4th day of January 1848, and it appears from the declaration and oyer, that a certain Richard W. Reaney,  [**9]  on the 25th day of April 1846, applied to the commissioners of insolvent debtors in the city of Baltimore, for the benefit of the insolvent laws, and the bond upon which this action was instituted, was executed by said Reaney, and by the appellee's intestate, upon the conditions, that the said insolvent debtor, should make his personal appearance before the said commissioners, on the 1st day of June 1846, to answer interrogatories, &c., and should also make his personal appearance before said commissioners, on the 1st day of August 1846, for his final hearing, &c. It is further alleged, that the said Richard, at the time of his application, was indebted to the appellants in the sum of $ 513.98, upon a judgment before recovered against him, and the breach of the condition of the bond relied on, is, that the said Richard did not make his personal appearance before the commissioners, on the 1st day of August 1846, &c.
The defendant pleaded seven pleas, the second and seventh were withdrawn in the court below, and the first was abandoned in this court; the appellee relying for his defence, upon the matters arising under the 3rd, 4th, 5th and 6th pleas.
The demurrer to the 3rd plea raises [**10]  the question, whether the enlistment of the insolvent as a volunteer, and his acceptance by the Government in its service in time of war, relieved 

 [*236]  him from responsibility to appear according to the condition of the bond, or relieved his surety from liability for his failure to appear; and we think this question must be ruled against the defendant. The act of 1846, ch. 332, was not passed until the 10th day of March 1847, long after the breach of the condition of the bond, and, therefore, has no application to the case; and we did not understand the appellee in his argument, as claiming exemption under the act of 1846. But he argued, that since the act of 1834, ch. 336, which placed these bonds on the footing of bail bonds, giving to the surety the power to surrender the insolvent, the surety is relieved from his responsibility wherever any thing occurs which places it beyond his power to arrest and surrender the principal. This argument rests upon the assumption, that the enlistment of Reaney, exempted him from arrest and placed him out of the surety's power. Admitting that proposition to be true, without meaning so to decide, it was the consequence of Reaney's voluntary [**11]  act, and not of any constraint on the part of the government, and could no more exempt him from responsibility on his bond, or relieve his surety, than if he had voluntarily absented himself from the State for any other purpose.
No authorities have been cited in support of the defence set up by the 3rd plea. It was expressly decided by the Supreme Court of Massachusetts, in the case of Sayward vs. Conant, 11 Mass. 146, "That it was no defence to a scire facias against bail, that their principal had enlisted into the Army of the United States, since their becoming bail for him, and before judgment against him in the principal action;" and that decision is in conformity with the authorities.
By the fifth plea it is alleged, that Reaney had applied for the benefit on the 13th of August 1845, and was finally discharged, and that afterwards, and within two years, to wit, on the 25th of April 1846, he applied again, and that the bond sued on was given on his second application.
This is not a good plea; it is based upon the supposition, that the second application was illegal. Without intending to decide, that if the second application was illegal it would furnish [**12]  a good defence to a suit on the bond, we have seen no 

 [*237]  law which prohibited such second application. The act of 1845, ch. 139, sec. 1, in our opinion does not apply to insolvent applications in the city of Baltimore. But even if it did, it did not go into operation till the 1st of June 1846, after the second application of Reaney. The 4th section of the act of 1819, ch. 84, which was also cited by the appellee, prohibits a second application within two years, only in the case where the petitioner had failed to obtain a final discharge under the previous application.
The defendant's demurrer to the replication to the 6th plea, raises the question, whether, if a debt be due by a party and he apply for the benefit of the insolvent laws, and pending the application and before final discharge, an absolute judgment be recovered thereon against him, said judgment is affected by, or subject to his subsequent final discharge on said application; said application not having been in any manner pleaded or relied upon in the suit?
The principle is well settled, that after judgment the defendant cannot avail himself of any matter which might have been pleaded or relied on as a defence [**13]  to the action. See Kemp vs. Cook, et al., 6 Md. 305. Moore vs. Garretson, Ibid, 444. Miller vs. Fiery, 12 Md. 207. In this latter case it was held, that on a scire facias, a defendant could not plead his discharge under the insolvent laws granted prior to the original judgment. The same principle applies to the defence set up here, under the 6th plea. It was competent for Reaney to plead his application for the benefit of the insolvent laws, and the pendency thereof in the original action against him; and although such a plea would not have been a complete bar to the action, nor would it have abated the writ, yet it would have prevented the recovery of an absolute judgment against him, and reduced it to a qualified judgment; subject to the result of his application. Not having availed himself of such a defence at the proper time, and the judgment in this case being absolute and unconditional, it is too late afterwards to make the objection.
There remains only for us to consider the defence arising under the 4th plea. By this plea it is alleged, that Reaney applied 

 [*238]  for the benefit of the insolvent laws, on the 25th of April [**14]  1846. That afterwards, to wit, on the 23rd of February 1848, the commissioners changed the time for his final appearance, and extended it till the 3rd day of June 1848, and that such proceedings were had under said application, that said Reaney was afterwards, on the 10th day of July 1848, finally discharged, &c.
To this plea the plaintiff replied, that when Reaney applied for the benefit, the 1st day of August 1846 was appointed for him to appear, and he did not, and that the commissioners of insolvent debtors then made, to the county court, a final and unfavorable report in his case, absque hoc, that the time was afterwards extended, &c.
The defendant rejoined, that the commissioners did, on the 23rd of February 1848, change the time for the final appearance until the 3rd day of June 1848, &c., and to this the plaintiff demurred generally.
The decision of the question raised by this demurrer, depends upon the construction of the acts of Assembly, defining the powers and duties of the commissioners of insolvent debtors.
The act of 1819, ch. 84, sec. 1, directed the application to be made to the commissioners, and authorized them to grant a personal discharge, and to fix the [**15]  time for final hearing, which was to be before the county court. They were also required to report to the county court, whether the petitioner had complied, or had not complied, with the terms and conditions of the insolvent laws. The act of 1821, ch. 250, provided, that in cases where the insolvent may fail to appear on the days required by law, the commissioners, or the county court, as the case may be, shall have power, in their discretion, if they believe such failure not to have been designed for fraudulent purposes, to continue the case of such petitioner upon their docket until some other convenient day, whereof notice is to be given.
The act of 1831, ch. 316, greatly enlarged the powers of the commissioners; by the 3rd section they were authorized to hear finally, and to grant a final discharge to, the petitioner; 

 [*239]  and by the same section it is enacted, "That the said commissioners shall have the same power and discretion of extending and changing the time for such final appearance, as is now vested in said (Baltimore county) court, and under the same limitations, and to the same effect and operation to every intent and purpose."
By the 4th section, the commissioners [**16]  are required, notwithstanding their power in respect to final discharges, to report and return to the county court, after such final discharge, or unfavorable decision, all their proceedings, and the papers in the case, &c.
And by a proviso to this section, it is declared as follows: "Provided, that when the commissioners shall extend or change the time as aforesaid for final appearance, and shall have made report and return, as aforesaid, to Baltimore county court, the said commissioners may thereafter grant a final discharge as aforesaid, or otherwise proceed to every effect, as if such report and return had not been made, and shall make, report and return of such further proceedings," &c.
Under this proviso, we entertain no doubt of the power of the commissioners, to extend the time for the final hearing of an insolvent; notwithstanding a previous unfavorable report made by them to the county court. They still retain jurisdiction over the case, and by the express words of the act may "thereafter grant a final discharge, or otherwise proceed, to every effect, as if such report and return had not been made." It is erroneous to suppose, that after such report none of the papers [**17]  remain in their possession. The late Court of Appeals, in construing the act of 1819, ch. 84, decided, that "the commissioners in the case of an unfavorable report, were required to return to the county court, only deeds of assignment and such other papers, relating to the estate of the applicant, and brought before them, as they may deem it proper to have preserved; and that they were not required to return the schedule and all other proceedings which may have been had before them; these last remain in their custody." Glasgow vs. Sands, 3 G. & J. 96.
In our opinion, the law in this respect remains unaltered by 

 [*240]  the 4th section of the act of 1831, which required, in case of an unfavorable report, all their proceedings and the papers in the case of the insolvent debtor, to be returned, "as such proceedings and papers are now required to be reported and returned."
The commissioners having retained the custody of the papers in the case, with jurisdiction over the subject, and power to enlarge the time for the insolvent to appear, the allegation, that they did so enlarge the time, and that thereupon such proceedings were had, as that the insolvent [**18]  was afterwards finally discharged, is sufficient. It was not necessary to allege, that continuances were properly entered, nor that notice was given; the legal presumption is, that their proceedings were regular and conformable to law. Bowie vs. Jones, 1 Gill 208.
It was contended by the appellant, that, upon the failure of the insolvent to appear, according to the condition of the bond, the right of the plaintiff to sue attached, and could not be divested by any subsequent act of the commissioners, and the cases of Kiersted vs. The State, 1 G. & J. 231, and Osbourne vs. The State, 10 G. & J. 1, have been cited to show, not only that by such failure the right of action accrued, but also, that the measure of damages is the amount of the debt due the plaintiff.
Those cases arose before the passage of the act of 1836, ch. 293, which gave to the county courts the power to extend the time for the insolvent to appear. That power, we have shown, was possessed by the commissioners under the act of 1831. The exercise of such a power by the court or the commissioners, must necessarily alter the extent of responsibility upon the [**19]  bond, for if the right of action attaches upon the failure to appear, and the creditors have thereupon a right to recover the full amount of their demands, no benefit whatever could accrue to the insolvent from an enlargement of the time.
In this case the suit was brought after the breach of the condition, and before the subsequent action of the commissioners, as set up in the 4th plea. The plaintiff had a right of action at the time the suit was instituted, and the defence under the plea is not a complete bar; it is matter of defence 

 [*241]  arising afterwards, and exempts the defendant from liability, except for nominal damages. The judgment below must therefore be reversed, and judgment entered for the appellants for the costs in this suit.
Judgment reversed, and judgment for appellants for costs. 

180 of 196 DOCUMENTS 

ZORA H. H. CROPPER vs. EDWARD PITTMAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

13 Md. 190; 1859 Md. LEXIS 22 

March 17, 1859, Decided 

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

Assumpsit, brought on the 7th of January 1854, by the appellee against the appellant, to recover for goods furnished and delivered by the plaintiff to one John S. Cropper.

The declaration sets out, in its first count, that on the 26th of September 1850, the defendant, in consideration that the plaintiff would furnish and deliver to one John S. Cropper, goods to the value of $ 600, undertook and promised the plaintiff to pay him for the same, six months after their delivery, and that relying on this undertaking and promise, the plaintiff did furnish and deliver to the said John S. Cropper goods to the value of $ 600. The second count is for sundry matters properly chargeable in account, as by a particular account thereof herewith brought into court will appear. Plea, non-assumpsit.

Exception. The plaintiff proved by Wm. Horsey, that witness was salesman in the plaintiff's store, at the time the goods mentioned in the account filed in this cause were purchased; that John S. Cropper was a stranger to witness, and was introduced to him at the store of Cropper & Hopkins, by the defendant, who stated to witness that "his brother [**2]  intended to go into business in Virginia, and wished to purchase a bill of goods, and remarked that he would see the bill paid; that this conversation was in the morning, and in the afternoon of the same day, or the following day, John S. Cropper came to the plaintiff's store, and selected a bill of goods amounting to $ 515.42, which were put in a separate place; that after this, witness went to the defendant, "and asked him if he would accept a draft for the bill if the plaintiff would give two months extra time?" The defendant "declined to do this, but said he would see the bill paid, as he expected his brother, John S. Cropper, to send some produce to market consigned to him in three months, and he would appropriate the amount to pay the bill; he said he would see the bill paid, if John S. Cropper purchased the goods of the plaintiff;" witness reported what the defendant had said to the plaintiff, and the goods were delivered to John S. Cropper; that, at subsequent periods, the defendant gave witness orders for goods for his brother, John S. Cropper; that the goods were all charged upon the plaintiff's books to "John S. Cropper, Level Springs, Virginia."

Bryson Grundy, a witness [**3]  for the plaintiff, proved that he was the plaintiff's book-keeper, at the time of the purchase of these goods; he produced the ledger in court, showing that the goods were all charged to "John S. Cropper, Level Springs, Virginia." In answer to a question by defendant's attorney, he says: "there was a bond taken from John S. Cropper; thinks there was a bond taken, but is not certain, for the bill first purchased by him; generally take those things but do not enter them either on the ledger or bill book."

The defendant then asked the court to instruct the jury:

1st. That if they believe from the evidence, that the defendant agreed with the plaintiff to pay the debt contracted by John S. Cropper, if he did not, and that said agreement was not in writing, then the said agreement is a collateral undertaking, and void under the statute of frauds, and the plaintiff is not entitled to recover.

2nd. That if they find from the evidence, that the bond or promissory note of John S. Cropper, was taken by the plaintiff in settlement of his claim, and that at the time of the purchase, the goods were charged upon the books of the plaintiff to John S. Cropper, then the undertaking of [**4]  the defendant is a collateral undertaking, and the plaintiff is not entitled to recover.

These prayers the court (LEE, J.) refused to grant, and instructed the jury, that if they find from all the evidence in this cause, that the goods sold in this case, were sold on the credit of the defendant, then the plaintiff is entitled to recover; but if they find that after the goods were sold, the defendant undertook to secure or pay to the plaintiff the amount due for the same, and that the promise or undertaking was not in writing, then the defendant is entitled to recover.

The defendant excepted, both to the refusal of his prayers and to the instructions given by the court, and, the verdict and judgment being in favor of the plaintiff, appealed.  

DISPOSITION:
Judgment reversed and no procedendo.  

HEADNOTES:

Whenever the party undertaken for is originally liable on the same contract, the promise to answer for that liability is collateral and must be in writing.

If one gives credit to another for goods sold and delivered, on the promise of a third person "to see him paid," or that "he would see the bill paid," such words standing alone, import a collateral and not an original liability.

Where the question, to whom was the credit given at the time of the sale and delivery of the goods, depends on inferences to be drawn from all the facts and circumstances attending the transaction, it is proper to leave that question to the jury.

But where the evidence is not legally sufficient to charge the defendant as upon an original undertaking and not collateral to the liability of another, it is error to leave to the jury to find that the goods were sold on his credit.

A prayer, "that if the jury find that the defendant agreed with the plaintiff to pay the debt contracted by J. S. C.," &c., is erroneous in assuming that the debt was contracted by J. S. C.

A prayer, that if the jury find "that the bond or promissory note of J. S. C. was taken by the plaintiff in settlement of his claim, &c., is erroneous in assuming the existence of a bond or note from J. S. C. to the plaintiff.

An instruction, "that if the jury find from all the evidence, that the goods sold in this case were sold on the credit of the defendant, then the plaintiff is entitled to recover," is erroneous in assuming that the goods were sold, and also defective in not requiring the jury to find the delivery as well as the sale of the goods.  

COUNSEL:
Wm. Price and Thos. M. Lanahan for the appellant:

1st. The promise of the defendant, that "he would see the bill paid, as he expected his brother, John S. Cropper, to send some produce to market, consigned to him, in three months, and he would appropriate the amount to pay the bill," is not tantamount to a promise to pay the debt, so as to make the undertaking an original one. 2 Stephen's [**5]  N. P., 1963, 1964; 1 Ld. Ray., 224. 2 Parson's on Cont., 499. The other words, that "he would see the bill paid," or "he would see the bill paid if John S. Cropper purchased the goods of the plaintiff," are identical with the words, "I will pay if he do not," which in Conolly vs. Kettlewell & Wilson, 1 Gill 263, were held to import a collateral and not an original liability on the part of the party promising, where, as in this case, the original party to whom the goods were sold, remained liable on the same contract. In this case the goods were charged upon the books of the plaintiff to John S. Cropper, and he remained liable therefor. The undertaking of the defendant, was, therefore, a collateral liability. The true test in such cases now is, was the party purchasing the goods or undertaken for liable on the contract? Smith's Law of Cont., 43, 44.

2nd. There was sufficient evidence in the cause, to authorise the court to grant the defendant's prayers, and refer to the jury the existence of the facts therein set forth, and if the jury found the facts there stated, the legal effect of such a contract, which the court was bound to pronounce, is well settled in the cases of Elder [**6]  vs. Warfield, 7 H. & J. 392, and Conolly vs. Kettlewell & Wilson, 1 Gill 260.

3rd. If these views are correct, the instruction granted by the court was clearly wrong in point of law. It was also defective in form, because it assumes that the goods were sold, which fact should have been left to the finding of the jury.

Whitney and Thomas for the appellee:

1st. The court below was right in refusing the appellant's prayers, because the first assumes the fact, that the debt was contracted by John S. Cropper, and the second, the fact, that a bond or promissory note of John S. Cropper, was taken by the plaintiff--facts which should have been left to the jury, to find from all the evidence in the cause. 3 Md. 162, Gaither vs. Martin. 4 Md. 244, Rail Road Co., vs. Woodruff. 6 Gill 259, Brooks vs. Elgin. 6 G. & J. 71, Crawford vs. Berry. 1 Gill 260, Conolly vs. Kettlewell & Wilson. The second prayer was also calculated to mislead the jury, inasmuch as it assumes the right of the defendant to a verdict on the facts therein stated, when all the facts and circumstances in the cause should have been left to them, from which to find the nature and character [**7]  of the defendant's undertaking. 7 H. & J. 392, Elder vs. Warfield. 1 Pet., 476, De Wolf vs. Rabaud. Brown on Statute of Frauds, sec. 199.

2nd. The court below was also right in the instruction given to the jury, as it left to them to find from all the evidence and circumstances in the cause, to whom the credit was given in the sale of the goods, and if that credit was given to the defendant, the plaintiff was entitled to recover. 7 H. & J. 392, Elder vs. Warfield. Brown on Statute of Frauds, sec. 199.  

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

OPINIONBY:
TUCK 

OPINION:

 [*195]  TUCK, J., delivered the opinion of this court.
There is no substantial difference between this case and Conolly vs. Kettlewell, et al., 1 Gill 260, in which it was decided, that the defendant could not be held answerable, where he had promised to pay for goods, if another person did not, such words importing a collateral and not an original liability. It was laid down as a general rule, that wherever the party undertaken for is originally liable on the same contract, the promise to answer for that liability is collateral, and must be in writing, as if one [**8]  gives credit to another for goods sold and delivered, on the promise of a third person "to see him paid." We cannot doubt, that John S. Cropper was liable for the goods delivered to him, or that the plaintiff considered him as debtor for them. They were selected by and charged to him, as was the state of facts in 1 Gill 260; and there is nothing to show that he was not credited by the plaintiff. Sometimes the question arises, to whom was the credit given at the time of the sale and delivery of the goods, and it may depend on inferences to be drawn from all the facts and circumstances attending the transaction, as in Elder vs. Warfield, 7 H. & J. 391; Northern Central R. R. Co., vs. Prentiss, 11 Md. 119; Smith's Law of Contracts, 34, (56 Law Lib.) But if the court see that the evidence is not legally sufficient to charge the defendant, as upon an original undertaking not collateral to the liability of another, there is no propriety in sending the parties to a jury. Hence, in Conolly vs. Kettlewell, the Court of Appeals, deeming the words insufficient to create such a responsibility, reversed the judgment and refused a procedendo.  [**9]  
We are of opinion that the prayers on the part of the defendant were properly refused, because, the first assumes that the debt was contracted by John S. Cropper, when the question was, whether it was the original debt of the defendant; 

 [*196]  and, as to the second, because it assumes the existence of a bond or note from John S. Cropper to the plaintiff.
The first instruction, on the part of the court, was erroneous, in assuming that goods were sold; and also, because it left to the jury to find, that they were sold on the credit of the defendant, when the evidence was not legally sufficient to warrant such finding. 1 Gill 260. It was also defective in not requiring the jury to find the delivery as well as the sale of the goods. 7 G. & J. 28, Cole vs. Hebb. We do not say, that in every case where the words, "I will see the bill paid," are used, they necessarily import a collateral undertaking, and that in no such case could the plaintiff recover, but, that where they stand alone, as here, they must be so interpreted. If accompanied by other words or facts, sufficient to authorise a jury to find from all the evidence, that credit was given [**10]  to the party using them, a different result might follow. Such was the case in 7 H. & J. 391, where the defendant was held responsible; but this appeal is decided on the authority of Conolly vs. Kettlewell & Wilson.
Judgment reversed and no procedendo. 

181 of 196 DOCUMENTS 

HENRY WINDWART vs. ALEXANDER ALLEN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

13 Md. 196; 1859 Md. LEXIS 23 

March 17, 1859, Decided 

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

The bill in this case was filed on the 31st of July 1856, by the appellant against the appellee, for an injunction to restrain execution of two writs of fi. fa., issued upon two judgments of condemnation in attachments, obtained by the defendant against the complainant, as garnishee of one Seibert, before Parsons, a justice of the peace of Baltimore county.

The complainant in his bill alleges, that the transactions between himself and Seibert, had been settled, by his giving the latter his two notes, one of which became due and was paid, and the other had been endorsed by Seibert to a bona fide holder, before the attachments were issued, and has since been paid to the holder, and that he, therefore, owes Seibert nothing. He further alleges, that he is a German, and does not understand spoken English, and that he had no notice of the attachments, and was never informed in any way of his being sued or made a party to any suit, and never had notice to appear in any court; that a man entirely unknown to him, on one occasion inquired of him whether he was indebted to Seibert, to which he replied, "Yes, I owe him $ 63," the enquirer [**2]  then said to him, "Don't pay Seibert," to which he replied, that Seibert had obtained a note from him which would soon be due, and this was all the notice, conversation, summons or direction he had about the matter, with any one, until writs of fi. fa. were issued upon the judgments of condemnation by Owens, a justice of the peace of Baltimore county, which writs are now in the hand of George W. Chariton, constable, and unless relieved in equity, he will be compelled to pay the amount of the judgments, ($ 168.34,) not one cent of which does he owe to Seibert. He further charges, that the attachments were wrongfully and improperly issued, because no judgment had been obtained by the defendant against Seibert, and that Seibert never was a non-resident or absconding debtor; that more than sixty days had elapsed from the date of the judgments of condemnation, before Chariton levied on his property under the writs of fi. fa., during which time he had no notice of the attachments. The bill then prays for an injunction restraining further proceedings upon these writs of fi. fa., which was issued upon bond filed, and served on Allen and Chariton, the constable.

Allen, in his answer, says [**3]  he has no knowledge of the dealings between the complainant and Seibert, but denies that no judgments were obtained against Seibert before issuing the attachments, and on the contrary avers, that he recovered two judgments against Seibert, on the 4th of November 1855, before King, a justice of the peace of Baltimore city, for the amounts set out in the writs of attachments respectively, that on these judgments attachments were issued by Parsons, a justice of the peace of Baltimore county, on the 8th of April 1856, which were in due form laid in the hands of the complainant as garnishee, and judgments of condemnation rendered thereon, on the 8th of May 1856; that he is informed, verily believes and charges, that at the time of laying said attachments, the officer, Chariton, duly informed and fully gave the complainant to understand the whole nature and extent of the proceedings, and that the complainant did understand the same, and made a memorandum thereof, and that Chariton, not only explained the same to the complainant in English, but also in the German language; and that at the time the attachments were laid, he is informed and verily believes the complainant had money in his hands [**4]  of Seibert.

The bill and answer were both sworn to, and on the filing of the latter a motion to dissolve was made and testimony taken under a commission, the purport of which is sufficiently stated in the opinion of this court. The court below (KREBS, J.,) dissolved the injunction and dismissed the bill, and the complainant appealed.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Courts of equity do not lightly interfere with judgments at law, and relief will not be granted if the party has had an opportunity of making his defences in the courts of law.

Intendments will be made in support of the acts of ministerial officers, where they appear by the return of process to have discharged their duty, and the onus probandi rests on the party impeaching such acts.

The officer who served attachments upon a garnishee who was a German, having testified that he explained the business to him both in the English and German language, and was answered in both languages by the garnishee, who also took a memorandum thereof, such evidence is not overcome by proof, that the garnishee understood English very imperfectly.

Under the act of 1832, ch. 302, sec. 5, it is too late, no exception having been taken in the court below, to object, in the appellate court, to testimony, because the witness was the officer upon whom the injunction was served, restraining proceedings upon writs of fi. fa. in his hands, and was examined without a previous order of the court.

Upon a bill to restrain execution of judgments of condemnation, in attachments upon judgments of a justice of the peace, the objection that the attachments were improperly issued, under the act of 1831, ch. 271, cannot be availed of; it was a defence to be taken, if at all, before the justice, upon the return of the attachments. 

COUNSEL:
Orville Horwitz for the appellant, argued:

1st. That although no exception appears in the record to the testimony of Chariton, yet that being, in point of fact, a defendant to the injunction, his testimony cannot be used, having been taken without any order of the court.

2nd. That there is no equity in the case on behalf of the appellee, it appearing manifestly, that there was nothing in the hands of the appellant liable to attachment.

3rd. That the appellant is entitled to the relief prayed, because of a mistake on his part as to the object of the visit of the constable, and because of his having received no intelligible notice of the writs of attachment.

4th. That the attachments were issued by a justice of the county, on judgments rendered by a justice of the city, without any thing appearing to show [**5]  a compliance with the act of 1831, ch. 271.

Wm. Alexander for the appellee, argued:

1st. There is no equity in the appellant's case. It shows a case of laches on his part. He had the opportunity to appear and defend the attachments, and failure to do so was his misfortune if not his fault. No averment will be received in equity, contradictory of the officer's return. The remedy, if any, is against the officer for a false return. 5 Md. 365, Falls, et al., vs. Robinson. 5 H. & J. 485, Hayes vs. Lusby. 10 G. & J. 358, Fowler vs. Lee.

2nd. Even if the bill presented a prima facie case, still the equity is entirely sworn away, and the evidence does not sustain the bill so contradicted, but, on the contrary, sustains all the material averments of the answer. 7 Gill 189, Briesch vs. McCauley.

3rd. Chariton was a competent witness. He was not a party to the suit, though incidentally affected by the injunction. No one is a party except relief be asked as against him and process be prayed against him, which was not done as to Chariton, and, therefore, no necessity excited for application to the court for leave to examine him as a witness; and even if by any [**6]  just reasoning he could have been objected to as incompetent, still no exception was made to his competency in the court below, and by the act of 1832, ch. 302, sec. 5, none can be made here.

4th. The point suggested by the appellant, that the proceedings were not according to the act of 1831, has no application to the case; the executions sought to be enjoined, are not the executions on the judgments against Seibert, but on the judgments in attachments against Windwart.  

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

OPINIONBY:
TUCK 

OPINION:

 [*200]  TUCK, J., delivered the opinion of this court.
Courts of chancery do not lightly interfere with judgments at law, and relief will not be granted, if the party has had an opportunity of making his defences. Fowler vs. Lee, 10 G. & J. 358. Prather vs. Prather, 11 G. & J. 110.
Conceding that the complainant had a defence in bar of the attachment issued and laid in his hands, as a debtor of Seibert, we must inquire whether he had an opportunity of making that defence. Intendments will be made in support of the acts of ministerial officers, where they appear by the return of process [**7]  to have discharged their duty, and the onus probandi rests on the party impeaching such acts. If Chariton's testimony were excluded, as insisted by the appellant's counsel, there would be no evidence to question the constable's return, that could be safely relied on for that purpose. That his evidence must be deemed as properly before us, even if incompetent, is shown by the act of 1832, ch. 302, sec. 5. Jones vs. Hardesty, 10 G. & J. 404. This witness states expressly, that he spoke to Windwart both in English and German, and was answered in both languages. It may be, as proved by the witnesses, that Windwart understands English very imperfectly, but they state that he understands it a little when spoken to. Blum's evidence cannot be relied on with much confidence when relating what passed between Windwart and the officer; because he admits that he cannot speak English at all, and, having been examined through an interpreter, 

 [*201]  the probability is, that he understands it very imperfectly when others may be speaking in that language; and, yet he undertakes to narrate what Chariton said in English to Windwart. But as far as Volkmar and Blum testify,  [**8]  they corroborate Chariton. Volkmar says, that Windwart told him he had been inquired of by a man as to his indebtedness to Seibert, and cautioned not to pay the money to him; and Blum says, that the officer showed papers, and directed Windwart to write something on a slate which he did, and that he recollects the name of Alexander Allen, and the county sheriff's office, as having been mentioned by Chariton to Windwart.
Chariton's evidence is direct and positive, that he explained the business to the complainant, in German and in English; that he made memoranda by his direction, on a slate, and that the entry was afterwards explained by Windwart, in English, and was correct. The substance of Behmeir's testimony is, that Chariton speaks the Pennsylvania German, and not the language of the natives, and that all Germans do not understand that dialect; but this ought not to overthrow the statement of Chariton, when he swears to the proper performance of his duty as constable, and shows, if he is believed, that he gave such explanations, and that the party made such memoranda at the time, as were sufficient to have enabled him to appear and answer the process, which it was the business [**9]  of the officer to serve.
It does not appear that Windwart made any inquiry into the business, until after the judgments of condemnation had been entered and fi. fas. issued. If he did not fully understand the nature of it, he might have gone to an interpreter. He knew that Alexander Allen was concerned, according to Blum's testimony, and that the county sheriff's office was the place mentioned by Chariton, yet he does not appear to have gone there or made any inquiry.
Probably Windwart did not comprehend the nature of the business, but ought the plaintiff in the judgments to suffer the consequences of his want of understanding, or of knowledge of our language? It was his own omission to appear to the writs, if the process was served, which we must take to have 

 [*202]  been done, from all the evidence in the cause. Apart from the positive declarations of the officer, the proof on the part of the complainant does not overcome the prima facie effect of his return. This case is different from that of Tabler vs. Castle, 12 Md. 144, where relief was granted, in view of the peculiar circumstances attending a former action on the same cause, so as to have [**10]  the merits investigated.
The point of the appellant, under the act of 1831, ch. 271, if available at all, was a proper defence before the justice of the peace, on the return of the attachment, and cannot aid the present proceeding. See Brumbaugh vs. Schnebly, 2 Md. 320.
Decree affirmed. 

182 of 196 DOCUMENTS 

PHILIP BANDEL vs. JAMES W. ISAAC.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

13 Md. 202; 1859 Md. LEXIS 24 

March 16, 1859, Decided 

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

Assumpsit, brought on the 5th of January 1856, by the appellee, the holder, against the appellant, the maker, of a promissory note for $ 250, dated the 8th of May 1855, payable at seven months, to the order of Michael H. Bandel, and by him endorsed. Plea, non-assumpsit, upon which issue was joined.

Exception. At the trial the plaintiff proved the making and endorsement of the note, and the defence relied upon was that of usury. The proof on the part of the defendant, is sufficiently indicated by the following instructions, which he prayed the court to give to the jury.

1st. If the jury shall believe from the evidence, that the note sued on in this case, was made and delivered to the plaintiff by the defendant, and at the time of doing so, more than the rate of six per centum per annum, was demanded, and paid on the amount of said note for the time it had to run, the plaintiff is not entitled to recover.

2nd. If the jury shall believe from the evidence, that the note sued on in this case, was endorsed by Michael H. Bandel, for the accommodation of the defendant, and without consideration or value given by the said endorser, and [**2]  the same was used by the defendant, to take up and renew a usurious note held by the plaintiff against the defendant for the same sum, and was delivered by the defendant to the plaintiff, upon taking up and renewing such usurious note and at the time of such transaction, besides the note sued on in this case, the defendant agreed to pay for such renewal in money, at the rate of one per cent. per month, on the amount of said note, for the time it had to run, and actually paid such sum, and the plaintiff thereby became the first holder of said note for value, then the said note was usurious and void, and the plaintiff cannot recover.

3rd. If the jury shall believe from the evidence, that the note sued on in this case, was given as a renewal of an accommodation note for the same sum, drawn by the defendant, dated the 20th of November 1854, which was first negotiated by the plaintiff at the sum of $ 207.50, and that at the time of said renewal, the note sued on was first negotiated and passed by the defendant to the plaintiff, in consideration of the said first note, and that the plaintiff at the time of the renewal demanded and received from the defendant, in consideration thereof,  [**3]  in addition to the note, the sum of $ 30, the plaintiff can only recover the sum of $ 207.50, with legal interest from the 20th of November 1854, after allowing a credit of the sum paid in money at the time of the renewal.

These instructions and each of them, the court (MARSHALL, J.) refused to give, and to this ruling the defendant excepted. The verdict and judgment were in favor of the plaintiff, for the full amount of the note, with interest and costs, and the defendant appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

The 49th section of the 3rd article of the Constitution says: "The rate of interest in this State, shall not exceed six per cent. per annum, and no higher rate shall be taken or demanded, and the Legislature shall provide, by law, all necessary forfeitures and penalties against usury." HELD:

1st. That this section does not, of itself, make void, in whole, a contract demanding or exacting more than six per cent. interest; it merely fixes the legal rate of interest.

2nd. That it is for the Legislature, by forfeitures and penalties, to make the contract void, either in whole or in part, as to it may seem best, and by penalties punish the party or parties, making such a contract.

3rd. That until the Legislature shall, by law, provide the necessary forfeitures and penalties, the act of 1845, ch. 352, remains in force.

4th. That this act relates only to the remedy; that is, it prescribes the mode, in which a party seeking to avoid any part of a contract on the ground of usury, shall bring such defence to the notice of the court. Until he does bring such defence to the notice of the court, in legal contemplation it has no existence.

In construing a constitution, the courts must consider the circumstances attending its adoption, and what appears to have been the understanding of those who adopted it, keeping in view the proper office of such an instrument, which is to declare general rules and principles, and to leave to the Legislature the duty of preserving or enforcing them, by appropriate regulations and penalties.

The words in a constitution ought to be taken in their ordinary and common acceptation, because they are presumed to have been so understood by the framers, and by the people who adopted it.

If the people of the State, and their courts had regarded the statutes on the subject of usury as importing a certain thing, whenever the same or equivalent words are employed in a subsequent constitution or statute, the presumption of law is, that they are used in the same sense.  

COUNSEL:
Jervis Spencer for the appellant:

This case involves the question, as to the validity of a contract in this State tainted with usury, and whether such a contract can be enforced in the courts of the State? It was decided in the Court of Common Pleas, that the courts would not only enforce the contract, but that the plaintiff suing on such a contract, could recover not only the amount of consideration paid in the contract, but the excess too which constituted the usury. It is insisted for the appellant, that the court was wrong upon both propositions.

The 49th section of the 3rd article of the constitution declares; that "the rate of interest in this State, shall [**4]  not exceed six per cent. per annum, and no higher rate shall be taken or demanded, and the Legislature shall provide, by law, all necessary forfeitures and penalties against usury," and it is upon the true construction and effect of this clause in the organic law of the State, that the question arising in the present case must be decided.

By the 3rd article of the Bill of Rights, "All acts of Assembly, in force on the first Monday of November, eighteen hundred and fifty, except such as may have since expired, or may be altered by this constitution," are continued in force. By this it will be seen, that the constitution does not undertake to repeal any law by special reference, but declares all laws inconsistent with its provisions void. The act of 1845, ch. 352, cannot be a subsisting act, since the adoption of the constitution, for a simple comparison of this act with the clause of the constitution now in question, will show the law to be inconsistent with it. The latter, in plain, positive and direct terms, says, that "no higher rate than six per cent. interest, shall be taken or demanded," while the former says, that more than six per cent. interest may be taken, demanded and [**5]  recovered, unless the party chooses specially to plead the usury, and he can only do that upon the condition, that he pays the sum actually loaned with legal interest. The act of 1845, virtually repeals the law of 1704, and leaves the morals of the law of usury, to each individual who may happen to have a case involving the question, whereas the constitution comes in and says, there shall be a paramount policy which shall govern all cases, and further provides, that the Legislature shall pass laws imposing penalties upon usury. It clearly denounces the usury, and all that it leaves to the Legislature to do, is the imposing of forfeitures and penalties therefor. No more than six per cent. shall be taken or demanded, and this prohibition is the same, as if the constitution had said, no money shall be recovered upon any contract in consideration of illicit intercourse or any other immoral act, or crime, and that the Legislature should impose penalties therefor. It is not necessary that a penalty should be imposed, in order to avoid the contract, for if the Legislature should impose such penalty, the contract would only be void by construction, and the imposition of such a penalty could [**6]  have no more effect in avoiding the contract, than the declared policy of the constitution. This provision in relation to usury, is the same as that in the 5th section of the 3rd article, in reference to lotteries, which declares, that "from and after the first day of April, eighteen hundred and fifty-nine, no lottery scheme shall be drawn, for any purpose whatever, nor shall any lottery ticket be sold in this State."

But this very provision has been construed by Chief Justice Taney, in the case of Dill vs. Ellicott, in the Circuit Court of the United States, and that eminent jurist was clearly of opinion, that this clause of the constitution does, of itself, avoid the contract, and upon the reasoning and authority of that opinion, this argument may well be rested. It is there decided, that though the constitution does not say in express terms, that the contract shall be void, yet that a contract to do an act forbidden by law, is void, and cannot be enforced in a court of justice; that courts are instituted to carry into effect the laws of a country, and they cannot become auxiliary to the consummation of a violation of law; that no court of justice can, in its nature, be made [**7]  the handmaid of iniquity.

In the case of Territt, et al., vs. Bartlett, 21 Verm., 184, it was held, under the statute of Vermont, which prohibited the sale of spirituous liquors in that State, except under license to sell for certain specified purposes, that parties in New York, who had sold liquors to a person residing in Vermont, knowing that the latter intended to sell them without license, and in violation of this law, could not sustain an action in the courts of Vermont, to recover therefor, and the decision is placed upon the ground, that a contract which has for its object, or which contemplates any act prohibited by express statute, or the commission of which incurs a penalty, is as much illegal and void, as if the statute in express terms so declared. In the case of Bancroft vs. Dumas, 21 Verm., 456, it was held, under another statute of that State, which imposed a penalty for the sale of spirituous liquors without a license, that the contract of sale was an illegal one, which a court of justice will never lend its aid to enforce, and it is there said, that it has long been settled law, that a promise made in consideration of an act which is forbidden by law, is void.  [**8]  

By a statute of Massachusetts, the sale of shingles except of certain quality and size was prohibited under a penalty, and in the case of Wheler vs. Russell, 17 Mass., 258, it was held, that no action would lie upon a promissory note, the consideration whereof, was a sale of shingles not of the size prescribed by the statute, and Chief Justice Parker, delivering the opinion of the court said, that no principle of law is better settled, than that no action will lie upon a contract made in violation of a statute, or of a principle of the common law. In Bayley vs. Taber, 5 Mass., 293, which was the case of the issual of certain promissory notes made void by statute, and the maker of the notes set up the defence against an innocent holder, it was said by the court, that it is no novel doctrine, that a person shall be permitted to avoid his contract by alleging his own criminality, provided it consists in the violation of some positive statute; that contracts, the consideration of which is money won at play, or loaned at unlawful interest, have always been subject to the same rule, not only against those who participated in the offence, but even against innocent endorsers, when they [**9]  have claimed the performance of such contracts.

By statutes of New York, relating to turnpike and plank road companies, it was declared, that no director of the corporation "to which he shall belong, shall be concerned directly or indirectly in any contract, for the making or working of the road, or any part thereof, during the time he shall be a director," and in the case of Barton vs. Port Jackson & Union Falls Plank Road Co., 17 Barb., 397, the company had made a contract for the construction of part of the road, with two of its directors who brought suit thereon against the company, but the court said: "The contract was expressly within the prohibition of the statute, and the question is, whether it is not therefore void? The statute is only prohibitory in its terms. It does not declare, in so many words, that all such contracts shall be void. But this is not necessary. Every act done against a prohibitory statute is not only illegal but absolutely void, and the court cannot assist an illegal transaction in any respect, or permit it to be set up as a protection."

In the case of Mitchell vs. Smith, 1 Binney, 117, a suit was brought upon a sealed bill, the consideration [**10]  of which was the sale of lands in Pennsylvania, under the Connecticut title, contrary to the statute of that State, which prohibited such sales, and imposed a penalty therefor, and the court held the contract void, and say: "All that is contended for is, that the contract is illegal, being founded on a breach of the law, and of consequence a void contract, and cannot be enforced in a court of law. And for this purpose, there cannot be a more express authority than the one in Carthew, 252, where Lord Chief Justice Holt, says, 'that every contract made by or about a matter or thing which is prohibited, and made unlawful by any statute, is a void contract, though the statute itself doth not mention that it shall be so, but only inflicts a penalty on the offender; because a penalty implies a prohibition, though there are no prohibitory words in the statute.' This authority, although perhaps it might not warrant a conclusion, that a penalty implies a prohibition, for the purpose of making the offence punishable by indictment, in case the law had prescribed another and a specific punishment for the offence, yet it certainly is an authority, to prove that a contract about a matter prohibited [**11]  by statute is unlawful, and a void contract, although the act does not expressly say so, and that a penalty implies a prohibition, so as to make the contract void."

In the case of Sharp vs. Teese, 4 Halsted, 352, it was held, that a note given by an insolvent debtor to two of his creditors, in consideration of their withdrawing their opposition to his discharge, under the insolvent laws of New Jersey, was void as being against the policy of those laws, and that an attempt to contravene the policy of a public statute is illegal, though the statute contains no express prohibition of such an attempt.

In Wooten vs. Miller, 7 Smedes. & Mar., 385, it was held, that a note given for the price of a slave introduced into Mississippi, as merchandise, since the statute of that State prohibiting such importation, is void, because contrary to law, and no recovery can be had on it, upon the principle, that a contract in violation of law, or against public policy, cannot be enforced in the courts of the country, and the same principle was sanctioned in Odineal vs. Barry, 24 Miss., 23. The Supreme Court of Tennessee, in Hale vs. Henderson, 4 Humph., 200, held, that no principle of law is [**12]  better settled, than that no action will lie to enforce a contract made in violation of a statute, or of the common law, or which is immoral in its character, and against public policy, and the contract there condemned, was one by which a party agreed not to bid for lands belonging to the State, and exposed to public sale by statute, and to use his influence to prevent others from bidding. Our own Court of Appeals, in Merrick vs. Bank of Metropolis, 8 Gill 72, have said, that "a contract illegal in itself, or that contemplates the violation of some statute, or is against public morals, cannot invoke the aid of a court of justice; for the court will not contribute the means of infringing the law." See, also, on this question, 4 Wash. C. C. Rep., 299, Toler vs. Armstrong; Byles on Bills, 236; 22 Viner's Abr., 292, and 2 Rolle's Rep., 469, Oliver vs. Oliver, (in which last two authorities it was held, that a contract tainted with usury was void at common law,) and also the cases cited in the opinion of Chief Justice Taney, in Dill vs. Ellicott.

These authorities, I think, clearly establish, that the clause of the constitution now under consideration, prohibiting as it does, the [**13]  taking or demanding of more than six per cent. interest, renders the note upon which this suit was brought void, and that the act of 1845 is no longer in existence. The only remaining question then is, can this defence be availed of under the general issue, or must it be specially pleaded? Upon this question there can be no difficulty, for it is clear, that an inhibition of this kind, in a fundamental law, need not be pleaded, and that usury may be given in evidence as a defence under the general issue. 1 Chitty's Pl., 477. 2 H. & G. 134, Osgood vs. Spencer. 1 Strange., 498, Bernard vs. Saul. 3 Cranch., 180, Levy vs. Gadsby.

Thos. G. Pratt and Thos. S. Alexander for the appellee: (An argument of Mr. Alexander, is also inserted in the appendix to this volume.)

The first and second prayers of the defendant, affirm substantially, that the plaintiff cannot recover at all, because of the usury, and the third affirms, that under the issue of non-assumpsit alone, the plaintiff can only recover the principal sum advanced by him on the note, with legal interest thereon.

By the laws of the State, as they stood at the time of the adoption of the present constitution, it is [**14]  clear, that the decision of the court below, rejecting the first and second prayers was right, (act of 1845, ch. 352. 9 Gill 143, 145, Gwynn vs. Lee,) and the only question in this case is, as to the effect of the 29th section of the 3rd article of that constitution, which enacts: "That the rate of interest in this State, shall not exceed six per cent. per annum, and no higher rate shall be takep or demanded, and the Legislature shall provide, by law, all necessary forfeitures and penalties against usury."

On the part of the appellant the proposition is and must be, that this constitutional provision, per se, annuls all contracts or securities made, or originating under an usurious agreement, and repeals all the anterior legislation of the State, since the act of 1704, protecting bona fide holders, without notice of the usury, or imposing upon the borrower the obligation to pay the principal sum really advanced, with legal interest.

On the part of the appellee it is insisted, that the whole purpose of this constitutional provision is, to fix the rate of interest, and determine what shall be usury in this State, by constitutional regulation put beyond the reach of legislation,  [**15]  and to leave to the Legislature the determination of all the consequences of the commission of usury, of all the forfeitures or losses of right, and all the penalties to be incurred thereby, including the annulment of the contract or security, which, if made a consequence of usury, is a forfeiture and penalty also; that it was not intended to abrogate the antecedent and then existing legislation of the State, as to the consequences of, or forfeitures and penalties for usury, but on the contrary, to preserve them, subject to the future power of the Legislature to alter or amend them; and that even if it were conceded, that this constitutional provision operates as an implied repeal of all such anterior and then existing legislation, as to the consequences of usury, yet, as this provision itself declares none of the consequences of the usury, inflicts no forfeitures or penalties, and is merely mandatory to the Legislature, as to all the necessary forfeitures and penalties against usury, and there has been no legislation under that power and mandate, the security is not void.

In construing this constitutional provision, we insist upon the following rules of construction.

1st.  [**16]  That the constitution as an instrument framed for, and adopted by the people, is to be construed according to the understanding of its provisions by the people, and their intent in the adoption of them, so far as these can be ascertained either by the terms used, or by extrinsic aids to the ascertainment of that understanding and intent, and having reference to the proper office of a constitution, which is to declare general rules or principles, and to leave to the Legislature the duty of preserving or enforcing them by appropriate regulations, sanctions and penalties; and that the words used in such an instrument must be taken in their ordinary and common acceptation, because they are presumed to have been so understood, by the framers and by the people who adopted it. 5 Md. 351, State vs. Mace. 7 Md. 147, Manly vs. The State. 15 Pet., 492 to 503, Groves vs. Slaughter.

2nd. That in construing it, it is always to be presumed, that its framers and the people knew the prior and then existing legislation of the State, and its judicial or well understood universally received construction. That, therefore, when, in any of its provisions, it adopts the very same enactments,  [**17]  or substantially the same enactments as are contained in a prior statute or statutes on the same subject, it is presumed also to adopt the decided, or understood and generally received construction of such prior statutes; and that when, in any of its provisions, there is not only a presumed but manifestly an intended reference to a prior statute on the same subject, and an adoption only of a part of the enactment of that statute, coupled with a power to the Legislature broad enough, according to the ordinary acceptation of the terms giving that power, to embrace the objects or subjects of the omitted enactments, the presumption is, that by such adoption of part, and such power to the Legislature as to the residue, it was intended to leave all the objects or subjects covered by the omitted enactments, to the action of the Legislature. 3 Gray, 450, Commonwealth vs. Hartnett. 26 Ala., 32, Durasmus vs. Harrison. 32 Eng. Law & Eq. Rep., 85, Ruckmaboye vs. Mottichund.

3rd. That by the express provisions of the constitution itself, a citizen of the State is declared to be entitled to the benefit of all laws then in force, unless altered by the constitution, or until affected by future [**18]  legislation, (Bill of Rights, art. 3,) and nothing but a clear and manifest intent by the constitution, to alter or abrogate such prior legislation, can deprive the citizen of his constitutional right to the benefit of such laws; that whenever, therefore, it is insisted, that the citizen has lost his constitutional right to the benefit of any such prior and then existing laws, by a mere implied alteration or repeal of them, flowing from other parts of the constitution, the question of such implied alteration or repeal, is a fortiori, to be governed by the well settled rules, as to such implied repeals, which are, that in construction they are never favored, that they are never held to exist, if by any reasonable interpretation, the supposed conflicting enactments can be made to stand together, and that in ascertaining whether any such implied repeal was intended, and especially by a constitutional provision, it is proper to look to the object and policy of the prior legislation, alleged to be thus repealed, and the consequences of its overthrow, and to be satisfied in view of these, that by the adoption of the alleged repealing constitutional provision, as understood by the people [**19]  adopting it, they intended to overthrow such prior legislation and policy. 4 G. & J. 152, Ches. & Ohio Canal Co. vs. Railroad Co. 11 Grattan, 220, Parramore vs. Taylor.

In applying these rules of construction, it is insisted: 1st. That even if it were conceded, that this clause of the constitution did impliedly prohibit or render unlawful, not only the taking of usurious interest, but also the mere contract or agreement to take it, it did not thereby annul the contract; and 2nd, That according to the true construction, it was intended to do no more than fix the rate of interest, define what should be usury, and prohibit the taking or recovery of the excessive interest. These views we shall consider in their order.

The first view proceeds upon the hypothesis, that by the enactment, that "no higher rate than six per cent. shall be taken or demanded," the contract or agreement to take more, or the contract or security on which it is taken, is thereby impliedly prohibited and rendered unlawful, and even under this hypothesis it is insisted:

1st. That even if the contract was thereby prohibited and made unlawful, it was not thereby necessarily annulled or made void, but [**20]  the question, whether it was the purpose of the constitution, by the force of its own prohibition merely, to render the prohibited contract wholly void, or only to subject it to such forfeitures and penalties, (including the total or partial loss of his rights under the contract,) as the Legislature might have declared, or deem it proper to declare, is a question of intention, in the adoption of it by the people, to be collected from the whole scope of the provision itself, considered in connection with the anterior and then existing laws on that subject. 12 How., 80 to 84, Harris vs. Runnels.

2nd. That this provision is the same, or substantially the same, as the enactment of the 1st section of the act of 1704, ch. 69, by the 2nd and 3rd sections of which, the usurious contracts and securities are declared void, and the penalties against usury prescribed; that by the well settled rule of construction applicable to all statutes, the 1st section of this act did not accomplish what was accomplished by the 2nd section, viz.; the avoiding of the contract or security, because the enactments of the 2nd section, are not to be regarded as mere surplussage, but on the contrary, as designed [**21]  to effect what the 1st section had not effected; that the 2nd and 3rd sections of this act are manifestly intended to declare the forfeitures and penalties for the usury, and, as a part of those forfeitures, the loss of all rights under the contract by declaring it void. And that, therefore, under the second rule of interpretation before stated, the constitution by the adoption only of the enactments of the 1st section, and the power to the Legislature to make provision for all necessary forfeitures and penalties, covering all the objects of the 2nd and 3rd sections, did not intend to avoid the contract or security, but to leave that, as well as all other forfeitures and penalties, for legislative regulation.

3rd. That the proposition, that this constitutional provision, per se, avoids the contract or security, is necessarily an affirmance of the additional proposition, that it also operates a repeal of the acts of 1824, ch. 200, 1845, ch. 352, and perhaps, also of that of 1847, ch. 255, as a complete overthrow of the wise and just policy of those acts, as to the consequences of usury, and a restoration of the rigorous provisions of the 2nd section of the old act of 1704, which [**22]  have again and again fallen under the condemnation of our courts as going beyond the mischief, and promotive only of injustice and fraud, and were swept away by the Legislature, in deference to the universal sentiment of society. By these acts of 1824, 1845 and 1847, the forfeiture of the contract or security, is so limited as to protect innocent parties, and to give to the borrower, both at law and in equity, only that relief to which he is honestly entitled. The innocent holder without notice of the usury, is, by them, entirely protected. In every case where the defence of usury is available, the borrower is required to pay what is honestly due from him, the principal and legal interest. The policy established by these acts has been by our courts every where, as well as by our legislation, declared to be one corrective of fraud and injustice, and entitled in the courts, to the construction of highly remedial acts, and it is insisted, that it never was the purpose of the people, by the adoption of this clause of the constitution, to repeal this legislation, to abandon the settled and progressive policy, which the legislation of our people, and the decisions of our courts, down to [**23]  the moment of the adoption of the constitution, had established and sustained, as necessary to correct fraud and injustice, and by a retrogade policy, unheard of in the history of a people, to return to a system here, and it might be added throughout the land, long since repudiated as one productive of fraud and injustice. It is also insisted, that even if this clause, as adopted, contemplated new regulations on that subject, instead of those of the prior acts, its purpose was to leave them for the determination of the legislature.

Our second view is, that this clause of the constitution, according to its true construction, was only intended to fix the rate of interest and define usury, leaving all the consequences of its commission to the regulation of the Legislature; that, in any view, its only prohibition is against the demand or receipt of the excessive interest, and that alone is rendered unlawful by it; and that such prohibition was not intended to, and does not, per se, render the whole contract unlawful and void, and especially not as to the principal and legal interest; and in support of this view it is insisted:

1st. That this is the obvious, ordinary, common sense [**24]  acceptation of this prohibition, against taking or demanding more than six per cent., and a fortiori, when coupled with the further provision, referring the whole subject of the forfeitures and penalties against usury, to the regulation of the Legislature; and that this, therefore, is the sense in which it must be presumed to have been understood and received by the people when they adopted it, according to the first rule of interpretation before stated.

2nd. That this is the proper construction, because by it the whole evil at which the prohibition aims--the excessive interest--is corrected, whilst the contrary construction, going beyond the mischief, injures the innocent, and enables the borrower to practice injustice and fraud, by absolving him from his conceded moral obligation to pay what is justly due from him; because, by it the constitution is thus in consonance with the legislation, and settled policy of the State, on this subject, as it existed at the adoption of the constitution, and had long existed, as one introduced in part by equity, and extended by law, in accordance with the universal sentiment of the people, to prevent fraud and injustice; and by it any implied [**25]  repeal of such legislation, which is never to be favored, but to be avoided if by any reasonable construction it can be, is thus avoided; whilst the contrary construction, not only renders necessary such implied repeal, but also imputes to the people, in their adoption of this clause, an intent at war with the fixed and progressive policy of the State, for nearly half a century, and a return to a system long since repudiated by them, as one productive of fraud and injustice.

3rd. That construing this clause, not merely by the rules applicable to the construction of the constitution, as the act of the people, but also by those which apply to statutes, passed in the ordinary course of legislation, the thing prohibited being the "taking or demanding more than six per cent.," this prohibition does not also, per se, include a prohibition against taking or demanding the principal or the legal interest, or render this also unlawful; that whatever might be the effect of such a prohibition, standing alone, on the whole contract, yet upon the well settled rules in the construction of statutes, which give meaning and effect to every part, and permit none to be rejected as mere surplussage,  [**26]  and which, for this purpose, will even restrict the meaning or effect of general words or regulations, so as not to embrace that which is, in the same statute, specifically mentioned and regulated, wherever such a prohibition as this is coupled with other enactments, which specifically determine and regulate the effect of the usury upon the contract itself, these specific regulations must alone determine that effect; that, therefore, under our act of 1704, ch. 69, as well as under the English statute of Anne, the nullity of the contract itself, wherever it is annulled, under these statutes, is accomplished, not by force of the prohibition against taking or demanding more than the fixed rate of interest, but by the subsequent and distinct enactment, declaring the contract or security void; that, therefore, wherever in the subsequent legislation of the same, or even of another State, there is a manifest reference to, and adoption of, the prohibition of these acts, it is to receive the same construction as in these acts, and if adopted as the prohibition only, omitting that part of their enactments which declares the nullity of the contract, it is to be presumed, that no such consequence [**27]  was intended by the adoption of the prohibition merely; that even if this were not so as to ordinary legislation, yet, that under our constitution adopted by the people, with the knowledge, or presumed knowledge, of the enactments of the act of 1704, and of its modifications by the acts of 1824, ch. 200, 1845, ch. 352, and 1847, ch. 255, its prohibition, which is evidently an adoption of the 1st section of the act of 1704, with a reference to the Legislature, for the determination of all the forfeitures and penalties, to be consequent upon its violation, was manifestly intended to leave, for legislative regulation, all that was regulated by the 2nd and 3rd sections of the act of 1704, including the effect of usury upon the whole contract.

As authorities supporting these positions, in addition to those already cited, we refer to 1 H. & G. 477, 484, Sauerwein vs. Brunner; 9 Gill 307, Baugher vs. Nelson; 6 G. & J. 24, Trunbo vs. Blizzard; 7 Gill 173, Carter & Wife, vs. Dennison; 10 Md. 279, Scaggs vs. Rail Road Co.; and 1 Md. Ch. Dec., 69, Wilson vs. Hardesty, as showing the construction placed by our courts upon these usury laws, and their policy, and in what [**28]  light they have uniformly regarded the defence of usury; and to 1 Annual Rep., 265, Reid vs. Duncan; 2 Annual Rep., 363, Hynes vs. Cobb; 2 Dallas, 92, Wycoff vs. Longhead; 12 Sergt. & Rawle., 46, Turner vs. Calvert; 7 Ohio, 81, Lafayette Society vs. Lewis; 8 Ohio, 271, Bank of Chillicothe vs. Swain; 3 McLean, 604, McLean vs. Lafayette Bank; 8 Wheat., 354, Fleckner vs. United States Bank; 10 Wheat., 392, De Wolf vs. Johnson, and 9 Pet., 398, United States Bank vs. Waggener, as showing that this provision in the constitution does not, per se, render the contract void, and in reference to them it may be remarked, that the case in 9 Pet., is, in our view of it, explanatory of, and expressly overrules the case of Bank of United States vs. Owens, 2 Pet., 527, relied on in the opinion of Chief Justice Taney, in Dill vs. Ellicott, and re-affirms the doctrine announced in the case of Fleckner vs. United States Bank, 8 Wheat., 354, by Justice Story, who there says: "The statutes of usury of the States, as well as of England, contain an express provision, that usurious contracts shall be utterly void; and without such an enactment the contract would be valid, at least in respect of persons who [**29]  were strangers to the usury. The taking of interest by the bank, beyond the sum authorized by the charter, would doubtless be a violation of its charter, for which a remedy might be applied by the government; but as the act of Congress does not declare, that it shall avoid the contract, it is not perceived how the original defendant could avail himself of this ground to defeat a recovery." We also refer to the following authorities, to support these and the other positions of this argument. 2 Taunt., 184, Barnes vs. Hedley. Dwarris on Statutes, 706, 707, 743. Comyn on Usury, in 5 Law Lib., 673. 2 Douglas, 735, Lowe vs. Waller. 1 Pet., 37, Gaither vs. Farmers & Mechanics Bank of Georgetown.

If these positions are sound, then the act of 1845, ch. 352, is in force, and the court below was right in refusing to grant the defendant's third prayer, because the defence could only be availed of by a special plea.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*218]  LE GRAND, C. J., delivered the opinion of this court.
This was an action instituted in the Court of Common Pleas of Baltimore city, by Isaac, the holder, against Bandel,  [**30]  the drawer, of a promissory note, to recover its amount.
At the trial below there was full and unquestioned proof of the making and endorsement of the note. Under the plea of non assumpsit the defence relied upon was that of usury, and none other. To that objection we address ourselves, and, as this is a matter which concerns the daily transactions and dealings of men, we will be as plain and brief as the nature of the inquiry will allow.
If the defence in this case be at all available, it must be because of the language of the Constitution. In the 49th section of the 3rd article of the Constitution is the following:
"The rate of interest in this State shall not exceed six per cent. per annum, and no higher rate shall be taken or demanded, and the Legislature shall provide, by law, all necessary forfeitures and penalties against usury."
Were it not for an opinion pronounced by the judges of the Circuit Court of the United States, for the district of Maryland, in the case of Dill vs. Ellicott, we would experience but little, 

 [*219]  if any difficulty, in determining the true import of the constitutional provision. Our high respect for the judgment of the learned [**31]  judges who gave that opinion, has called upon us to weigh most carefully the reasons given in its support, and to review with the strictest scrutiny our own opinions in regard to the matter. The more we have reflected on the subject, the more thorough has been our conviction, that the rule laid down in Dill vs. Ellicott ought not to be accepted in this State, as the proper interpretation of the Constitution in this particular.
The theory, on which rests the decision to which we have adverted, is simply this: that the taking of more than six per cent. interest, for the use of money, is usury, and therefore prohibited by law, and, as a consequence, any contract which reserves or authorizes the taking of more than six per cent. is wholly void, and, on grounds of public policy, incapable of being enforced by our courts. To this general proposition, to our minds, there are substantial and unanswerable objections. The effect of the decision of that court is, that a contract providing for the payment of more than six per cent. is not simply void as to the excess, but void entirely. The only authority adduced in support of this view is, the case of the Bank of the United States vs. Owens, 2 Peters 527. [**32]  In that case, by a bare majority of the court, it was held, that under the charter of the bank a contract, by which more than six per cent. was to be paid, could not be enforced, and that although such contracts were not, in words, by the charter, pronounced void, yet the policy of the law made them so in fact, and worked a forfeiture of the money loaned. In that case it was also held, that "reserving" was the equivalent to "taking." When the same case again appeared before the same court, this was declared to be error, and the distinction between the two clearly pointed out in the opinion of Justice Story. The "reservation," says he, "of usurious interest makes the contract utterly void; but if usurious interest be not stipulated for, but only taken afterwards, then the contract is not void, but the party is only liable to the penalty for the excess." 9 Peters 399. This decision also established, that the transaction which 

 [*220]  had been formerly declared to be usurious and void was free from all taint; and whilst the court does not, in terms, overrule the doctrines of the decision in 2 Peters, yet, in explanation of them, places it upon the [**33]  ground that the case came before the court on a demurrer which admitted the transaction to have been "unlawfully, usuriously and corruptly entered into." With this notice of it, the court then declare, that they "deliberately adhere" to the doctrine of Fleckner vs. The Bank of the United States, 8 Wheaton 338. In that case it is said: "The statutes of usury of the States, as well as of England, contain an express provision, that usurious contracts shall be utterly void; and without such an enactment the contract would be valid, at least in respect to persons who were strangers to the usury." Now this language was held as applicable to a clause in the charter of the bank, which declared: "That the bank shall not be at liberty to purchase any public debt whatsoever, nor shall it take more than at the rate of six per centum per annum, for, or on its loans or dividends." It is this clause in the charter which the court examined in the case in 2 Peters, and on the interpretation of its import there given, the case of Dill vs. Ellicott was decided by the Circuit Court for the district of Maryland. If the decision of Fleckner vs. The Bank of the United  [**34]   States is, as was said in 9 Peters, to be adhered to, it follows, the interpretation given in 2 Peters cannot be maintained, for it is in direct conflict with it. Whatever, therefore, might have been the force, as authority, of the case in 2 Peters, it has ceased since the decision in 9 Peters, where it is substantially overruled, and its opposite, the doctrine of 8 Wheaton, set up, and which, we think, is conclusive of this case, it being, in our judgment, in conformity with the decisions of most of the different States, and in conformity with good reason. The court say: "The taking of interest by the bank, beyond the sum authorized by the charter, would doubtless be a violation of its charter, for which a remedy might be applied by the government, but as the act of Congress does not declare that it shall avoid the contract, it is not perceived how the original defendant could avail himself of this ground to defeat a recovery."

 [*221]  If this be sound law, and we shall presently proceed to show that it is, why should a different interpretation be given to the 49th section of the 3rd article of the Constitution of Maryland? It "does not declare,  [**35]  " that a contract exacting more than six per cent. shall be void, any more than did the clause in the bank charter. So far from it, it is plain to us from the very words of the section, that its purpose was, first, to fix and establish a certain legal rate of interest; second, to leave it with the Legislature to provide, "by law," what amount and kind of forfeiture and penalty should be suffered by, and imposed upon, those who should take or demand more than six per cent.
The thing forbidden by the Constitution, is the taking or demanding a higher rate of interest than six per cent.; it is not forbidden to take or demand that or a lesser rate. The thing forbidden is the excess and nothing else, and that is what is illegal and void, and it is within the province of the Legislature to punish this illegality by forfeitures and penalties. Whilst the Constitution makes it competent to the Legislature, "by law," to forfeit the whole, or any part, of the money loaned, and, in addition, to impose a penalty, yet, until it does exercise this office, all that is "avoided" by the Constitution is the excess beyond the six per cent. Prior to the present Constitution, the legal rate [**36]  of interest depended upon the legislative pleasure, to be changed whenever it seemed expedient. The framers of the Constitution thought it best to deprive the Legislature of this discretion, and therefore fixed the rate in the Constitution, but continued to the Legislature the power of determining the forfeitures and penalties.
By the act of 1704, ch. 69, sec. 1, it was provided, that no person or persons, whatsoever, should "exact or take, directly, for loan of any moneys," &c., at a higher than a certain rate specified in the section. This language is certainly as strong as that of the Constitution, and yet the Legislature that passed that act did not suppose that if a higher rate was exacted or taken, the contract was therefore avoided because of this declaration, and accordingly, therefore, went on, by the second section of the act, to make all such usurious contracts void, 

 [*222]  and, by the third section, to provide forfeitures and penalties for the making of such contracts. The power exercised by the Legislature, in the passage of the second and third sections of the act of 1704, is the same as that which it is authorized to exercise by the 49th section of the 3rd article [**37]  of the Constitution. If, as is the case, the Legislature has not provided, "by law," forfeitures and penalties, the courts cannot usurp the authority which the Constitution has, in express terms, empowered it to exercise. If the framers of the Constitution understood that the mere fixing in that instrument the legal rate of interest, per se, avoided the contract, they would not have confided to the Legislature the power to provide, by law, "forfeitures," for in that case there would be nothing to forfeit, and they would have simply directed the Legislature to provide a penalty. We must presume, that the convention which framed, and the people who adopted, the Constitution, understood what was the previous state of the law on the given subject, and that they were aware of the fact, that whatever may have been the view entertained in times gone by, in England and elsewhere, as to the sinfulness of taking interest, that here, in Maryland, both the Legislature and courts held it lawful and proper to do so to a certain rate, and beyond that as only malum prohibitum, and not as morally wrong in itself; that they considered it but little, if anything, short of immoral, for a person [**38]  to avoid his solemn promise to refund what he had actually received of another's money. They could not have been uninformed of the existence of the act of 1845, ch. 352, which made it incumbent upon any one claiming to avail himself of the provisions of the act of 1704, specially to plead and set out, both principal and interest actually and fairly due, and that even when this should be done, the party so pleading was made liable for the principal and interest actually due; and if not ignorant of this, it is impossible to believe, they could have intended to repeal this act by indirection, when it was so easy to have done it in plain words. The very fact of not having done so, in such a manner, is conclusive evidence, to our minds, that they never intended to do so, but designed to leave that subject to the Legislature. 

 [*223]  And inasmuch as a repeal of a law is not to be unnecessarily inferred, and as the third section of the Bill of Rights continues in force "all acts of Assembly in force on the first Monday of November, eighteen hundred and fifty, except such as may have expired or may be altered by this Constitution," we conclude, (the Legislature not having done so,) that [**39]  the act of 1845 is still in full force, subject "to the revision of, and amendment or repeal by, the Legislature of this State."
In construing a Constitution, we must take into consideration the circumstances which attended its adoption, and what appears to have been the understanding of those who endorsed it with their approbation, keeping always in view the proper office of a Constitution, which is, to declare general rules and principles, and to leave to the Legislature the duty of preserving or enforcing them by appropriate regulations, penalties, &c.; and, also, that the words in such an instrument ought to be taken in their ordinary and common acceptation, because they are presumed to have been so understood by the framers, and by the people who adopted it. State vs. Mace, 5 Md. 337. Manly vs. The State, 7 Md. 135. Groves vs. Slaughter, 15 Peters 449.
Now if the people of Maryland had been accustomed, and their courts had regarded the statutes on the subject of usury as importing a certain thing, whenever the same or equivalent words are employed in a subsequent Constitution or statute, the presumption of law is,  [**40]  that they are used in the same sense. Duramus vs. Harrison & Whitman, 26 Ala. 326. Ruckmaboye vs. Mottichund, 32 Eng. Law & Eq. Rep. 84. And, as was correctly said by Justice McLean, in McLean, Assignee, vs. The Lafayette Bank, et al., 3 McLean 613, if it be "admitted, that where a contract is made in violation of a statute, or of the policy of the law, it is void. And that a usurious contract in Ohio is not only against the statute, but in violation of the policy of the law. But the law seems to be well settled in this State, that usury constitutes an exception from the general principle; so that the contract is only void for the excess of interest. Other States have construed their laws against usury in the same way. Now, whether 

 [*224]  this construction be right or wrong, is a matter of no importance; it is the law;" so we say, that even were it conceded, (although we deny it in fact,) that the general understanding, in this State, of the meaning and office of the first section of the act of 1704, was erroneous, yet it is the law, and in construing our Constitution, we must construe it as a question of intention in the adoption of it by [**41]  the people, to be collected from the whole scope of the provision itself, considered in connection with the anterior and then existing laws on the particular subject. 12 Howard, S. C. Rep. 80. Here we have a clause in our Constitution forbidding the demanding or taking more than six per cent. as interest, with an authority to the Legislature to provide, "by law," in the way of forfeitures and penalties, what shall be the punishment for demanding or taking more; and in such a case the rule is settled by the case just cited from 12 Howard, that on a whole view of the prohibition, and accompanying provision for regulations in regard to the thing prohibited, that the contract is not avoided by virtue of the prohibition, but by the regulation which expressly declares it to be so. This case, whilst it admits some diversity in the decisions on the subject, is a sufficient answer to most of the cases cited at the bar by the appellant's counsel.
We might, if we deemed the occasion to require it, multiply authorities to almost any extent in affirmation of the views we have stated, but we think we have referred to a sufficient number, and shall, therefore, content ourselves with [**42]  a brief recapitulation of the points of this decision.
1st. We hold, that the 49th section of the 3rd article of the Constitution does not, of itself, make void, in whole, a contract demanding or exacting more than six per cent. interest. It merely fixes the legal rate of interest.
2nd. That it is for the Legislature, by forfeitures and penalties, to make the contract void, either in whole or in part, as to it may seem best, and by penalties, punish the party or parties making such a contract.
3rd. That until the Legislature shall, "by law," provide the necessary forfeitures and penalties, the act of 1845, ch. 352, remains in force.

 [*225]  We hold the act of 1845, with the exception of its 5th & 6th sections, to be nothing more than an act relating to the remedy, that is to say, it prescribes the mode in which the party seeking to avoid any part of a contract, on the ground of usury, shall bring such defence to the notice of the court. Until he does bring such defence to the notice of the court, in legal contemplation, it has no existence. If, however, it should be deemed expedient to adopt any other mode, it is for the Legislature to provide it.
From these it [**43]  follows, that the judgment of the Court of Common Pleas must be affirmed, each and all the prayers offered by the defendant being in conflict with the view we have taken, and were, therefore, properly refused. Until the Legislature shall otherwise order, an action may be maintained on a contract on which was demanded or taken more than six per cent. interest; and if the defendant desires to rid him-self of liability for the excess beyond the six per cent., he must specially plead and set out what is actually and fairly due on the contract; unless he does so, he will be responsible to the extent of the face of his contract.
In further support of this opinion, we refer to the following cases: Groves, and other, vs. Slaughter, 15 Peters 449. Bank of Chillicothe vs. Swayne, and others, 8 Ohio 280, 281. Hynes vs. Cobb, et al., 2 Louisiana Annual Rep., 363. 2 Dallas 92.
Judgment affirmed.
NOTE BY THE REPORTER.--The following is the opinion of the Circuit Court of the United States, for the District of Maryland, in Dill vs. Ellicott, referred to in the above case, delivered by Chief Justice Taney, Judge Giles,  [**44]   who was his associate on the bench fully assenting.
"This action is brought by the endorser of a bill of exchange, drawn upon the defendants and accepted by them for $ 1000.
"The defendants plead that the bill was given to secure the payment of money loaned by the plaintiff to the payee of the bill, upon which an interest exceeding six per cent. was reserved, and that such contract was usurious, and the plaintiff not entitled to maintain an action upon it. To this plea the plaintiff demurred, and the question submitted to the court on these pleadings, is whether, under the Constitution of Maryland, adopted in 1851, an action can be maintained upon a contract for the loan of money, where an interest of more than six per cent. is reserved or received

 [*226]  "The clause of the Constitution is in the following words:
"'That the rate of interest in this State shall not exceed six per cent. per annum, and no higher rate shall be taken or demanded, and the Legislature shall provide by law, all necessary forfeitures and penalties against usury.'
"This provision is contained in art. 3, sec. 49, under the head of 'Legislative Department,' and by the third article of the Declaration [**45]  of Rights, all acts of Assembly in force on the first Monday in November 1850, which had not expired at the adoption of the Constitution, and were not altered by it, were continued in force, subject nevertheless to the revision of and amendment and repeal by the Legislature of the State.
"The acts of Assembly material to this question, which were passed previous to the adoption of the Constitution, were the acts of 1704 and 1845. The first section of the act of 1704, declared, that no person should exact or take above the rate of six per cent. per annum, upon the loan of any monies, goods or merchandise, or other commodities to be paid in money; the 2nd section declared, that all contracts by which a higher rate of interest was received should be void; and the third section inflicted penalties for taking or receiving more than the rate of interest limited by that act. The provisions of this law were materially changed by the act of 1845. By this act, the lender was entitled to recover the amount actually loaned with six per cent. interest upon it, although the contract was usurious and stipulated for a higher interest, and it repealed altogether the 3rd section of the act of 1704.  [**46]  
"The act of 1845, was still in force when the Constitution was adopted, and the point in issue between the parties, upon the demurrer, is, whether the provisions of this act are inconsistent with the clause of the Constitution before recited, and therefore repealed by it. In determining this question, the wisdom or policy of usury laws is not a subject for the consideration of the court. That was a question for the people of Maryland, when they adopted the Constitution; and it is the duty of the court to carry into effect the provisions of that instrument, according to its true intent, to be gathered from its own words, and referring to the previous legislation of the State, only so far as it may contribute to illustrate the meaning of doubtful or ambiguous language, if any such be found in the Constitution, and to ascertain what previous acts of Assembly are still in force. It would be difficult, we think, to raise a doubt as to the meaning of the prohibitory part of the section of which we are speaking. It declares, 'that the rate of interest shall not exceed six per cent. per annum, and no higher rate shall be taken or demanded.' These words are free from all ambiguity. They prohibit [**47]  in plain, positive and direct terms, the taking or demanding of more than six per cent. interest, and on this point it refers nothing to future legislation. The Constitution itself makes the prohibition, and all future legislation must be subordinate and conformable to this provision. And whoever takes or demands more than six per cent., while the Constitution is in force, does an unlawful act, an act forbidden by the Constitution of the State. Nor do the words which follow, qualify or restrain in any degree the meaning of the words above quoted. They declare that 'the Legislature shall provide by law all necessary forfeitures and penalties against usury.' Now usury consists in taking an interest for money above that allowed by law. The taking of more than six per cent. is therefore usury. And the words last quoted treat it as an offence, and directs the Legislature to punish it with penalties and forfeitures. The words do not merely give the power to punish, they are mandatory, and make it the duty of the Legislature to punish disobedience to that provision by forfeitures and penalties.
"Certainly, if the taking or demanding of more than six per cent., was not intended to be absolutely [**48]  prohibited by the preceding part of the section, there would be no propriety in commanding it to be punished.
"The words last quoted, therefore, do not qualify or restrict the meaning of the preceding words. On the contrary, they show that the framers of the Constitution, after fixing the amount of interest which a party might 

 [*227]  lawfully take or demand, proceed to make that provision more effectual by requiring the Legislature to enforce it, and to inflict forfeitures and penalties upon any one who should thereafter take or demand an amount of interest exceeding that prescribed by the Constitution.
"This being the evident meaning of the language of this section, can a contract, by which a higher interest is taken or demanded, be enforced in a court of justice? It is true, the Constitution does not say in express terms that such a contract shall be void. Nor was such a provision necessary to invalidate it. For it is well settled by a multitude of decisions in this country and in England, that a contract to do an act forbidden by law is void, and cannot be enforced in a court of justice.
"We do not stop at present to refer to judicial decisions to support this proposition.  [**49]  Many cases to this effect, are quoted in the opinion delivered by the Supreme Court of the United States, in the case of the Bank of the United States against Owens, reported in 2nd Pet., 527, and we are not aware of any decision in any court in which a contrary doctrine has been held. Indeed, in a State where the Legislative, Executive and Judicial departments are separated, it would render all law uncertain and ineffectual, if the judicial power enforced in whole or in part, the performance of a contract to do an act which is altogether forbidden to be done by the Constitution or laws of the State. And as the Constitution has forbidden the taking or demanding of more than six per cent., no contract made in this State can be enforced, when a higher rate of interest is taken or demanded by the contract.
"This view of the subject is fully supported by the decision of the Supreme Court, in the case of the Bank of the United States vs. Owens, hereinbefore referred to. The charter of the Bank contained a provision in the following words: 'It (the Bank) shall not be at liberty to purchase any public debt whatever, nor shall it take more than at the rate of six per cent. per annum, [**50]  for or upon its loans or discounts.' And in an action brought by the Bank upon a promissory note, the defendant pleaded that it was discounted upon an agreement to pay the Bank a higher rate of interest than six per cent. To this plea the Bank demurred, thus bringing the question before the court, in the same mode of pleading adopted by the counsel in this case. And Mr. Sergeant, who argued the case for the Bank, contended, (as the counsel for the plaintiff have done here,) that a mere prohibition to take more than six per cent., did not avoid a contract to take more; and that where an agreement is avoided, it is always in consequence of an express provision by law to that effect, (2nd Pet., 531.)
"But the court held otherwise, and the language of the Supreme Court, in deciding that question is so appropriate and directly applicable to the case before us, that we give it in the words of the court. They are as follows:
"'Some doubts have been thrown out whether, as the charter speaks only of taking, it can apply to a case in which the interest has been only reserved, not received. But on that point the majority of the court are clearly of opinion, that reserving must be [**51]  implied in the word taking, since it cannot be permitted by law to stipulate for the reservation of that which it is not permitted to receive, 1 Hawk. P. C. 620. In those instances in which courts are called upon to inflict a penalty upon the lender, whether in a civil or criminal form of action, it is necessarily otherwise, for then the actual receipt is generally necessary to consummate the offence. But when the restrictive policy of a law alone is in contemplation, we hold it to be an universal rule, that it is unlawful to contract to do that which it is unlawful to do.' And after deciding this point, and remarking briefly on the manner in which it came before the court, they proceed to say.
"'To understand the gist of the question it is necessary to observe, that although the act of incorporation forbids the taking of greater interest than six per cent., it does not declare void any contract reserving a greater sum than is permitted. Most, if not all, of the acts passed in England, and in the States, on the same subject, declare such contracts usurious and void.

 [*228]  "'The question then is, whether such contracts are void in law upon general principles?  [**52]  
"'The answer would seem to be plain and obvious, that no court of justice can in its nature be made the handmaid of iniquity. Courts are instituted to carry into effect the laws of a country. How can they then become auxiliary to the consummation of a violation of law? To enumerate here all the instances and cases in which this reasoning has been practically applied, would be to incur the imputation of vain parade.
"'There can be no civil right where there is no legal remedy, and there can be no legal remedy for that which is itself illegal.'
"We forbear to quote further from the language of the Supreme Court, and it is sufficient to say, that after having stated the principles of law in the manner set forth in the foregoing extract from the opinion, it proceeds to refer to many adjudged cases in support of the doctrine, showing that it applied to all cases where the act was prohibited by statute, although there was nothing morally wrong in the transaction; and upon this ground decided that the Bank could not maintain an action on the note, as the demurrer admitted, that it had been discounted upon an agreement to take more than six per cent. interest. We do not see how the case [**53]  before us can be distinguished from the one decided by the Supreme Court. They present precisely the same question, and the established principles of law which decided the one in favor of the defendant, must decide the other in like manner.
"It will be observed also, that the opinion we have quoted points out clearly the distinction between a statute merely forbidding an act to be done, and one imposing a forfeiture or penalty for doing it, and is, in effect, an answer to that part of the argument on the part of the plaintiff, which relied on the last words of the section of the Constitution, requiring the Legislature to impose forfeitures and penalties against usury.
"The absence of any provision inflicting a penalty, (say the Supreme Court) does not give the party a right to maintain an action on the contract, if the law forbids the contract to be made. And the reason of the rule thus laid down is, that the contract being forbidden the party can acquire no legal rights under it, and consequently cannot maintain an action in a court of justice to enforce it. His incapacity to maintain an action upon it is no forfeiture or penalty, for he acquires no rights under it, and therefore [**54]  there is nothing to forfeit. The money he loans is not forfeited, for if he chooses to rely upon the promise of the borrower, and the borrower repays him the money, he may lawfully keep it. It is not forfeited to the State or to any one else. But a court of justice cannot lend its aid to recover it, because the contract for the loan is one entire thing, and consequently is altogether valid or void, and it would be contrary to the duty of a court of justice, to assist a party in consummating an act which the law forbids. The absence of any penalty therefore is no argument in support of this action. But in this case there is something more than the absence of penalties and forfeitures. It is made the duty of the Legislature to inflict them, and the prohibitory clause of the Constitution must be construed now, in the same manner and have the same effect as if the Legislature had performed the duty enjoined upon it. It is true, no penalty or forfeiture is incurred until the Legislature shall prescribe it. But when that duty shall have been performed, (be the penalty more or less,) no body, we presume, would contend, that an action could still be maintained on the contract upon payment [**55]  of the penalty. And the act of no future legislation can alter the meaning of the words used in the Constitution. They remain the same, and must always be construed and administered in courts of justice according to their legal import as they stand in that instrument, whether future Legislatures do or do not obey its mandates and pass laws to enforce its provisions. It follows from what we have said, that the first four sections of the act of 1845, are no longer in force. These sections made an usurious contract legal for the amount actually loaned, and authorises the lender to recover the amount with six per cent. interest. It makes it void only so far as the usurious interest is concerned, and as a necessary consequence of this provision, it repealed expressly the 3rd section of the act of 1704.

 [*229]  "The act of 1845 does not therefore prohibit an usurious contract, but sanctions and supports it to the extent above mentioned. The Constitution, on the contrary, by the prohibiting words used in it, makes the whole contract illegal, and thereby incapacitates the party from maintaining a suit upon it, for the money he actually loaned, or any part of it; and moreover treats the [**56]  taking or demanding more than six per cent. as an offence, and commands the Legislature to provide penalties and forfeitures against it. The provisions of this act of Assembly, and those contained in the Constitution, are consequently inconsistent with each other, and the former is repealed. In relation to the act of 1704, the plaintiff claims nothing under it. But inasmuch as the first section of that act, like the Constitution, prohibits the taking of more than six per cent., and the second section contains an express provision, making void the contract where more is taken, the plaintiff contends, that the omission of the second provision in the Constitution, proves that it was not intended to make void the contract, but to leave it as provided for and legalized by the act of 1845.
"But it is evident that the second section in the act of 1704, like similar provisions in the English statutes against usury, was introduced to remove any doubt which might be raised upon the words "exact or take;" and to show that the prohibition was intended to apply to contracts in which usurious interest was reserved to be paid at a future day, as well as to cases in which it was actually exacted [**57]  and taken, or received at the time of the loan. They are introduced for greater cantion and to prevent nice distinctions upon the words used. This is constantly done in acts of legislation, and the omission in the Constitution of a provision of this description, contained in a previous act of Assembly, would hardly justify the court in inferring, that it was intended to authorize an action on a contract which the Constitution itself prohibited. In expounding an instrument so solemn and deliberate as a Constitution containing the fundamental law of the State, we are hardly at liberty to suppose that either those who framed it, or those who adopted it, intended to recognize or sanction the principle, that an action might be maintained upon a contract to do an act which the law forbade. On the contrary, a comparison between the language of the act of 1704 and the Constitution, tends strongly to support the construction we have given to the latter. The prohibition in the act of Assembly, is to "exact or take," and the second section, as we have said, was introduced for greater caution, in order to show more clearly, that while the penalties by that law were confined to the actual receiving,  [**58]  the prohibition extended further, and embraced contracts in which usurious interest was reserved, although payable at a future time.
"But the Constitution does not use the prohibitory words of the 1st section, but provides that no higher rate shall 'be taken or demanded.' Now these words clearly embrace a contract by which usurious interest is to be paid at a future day, as well as contracts in which it is taken and received. It does not mean usurious interest demanded in the negotiation previous to the loan, but demanded by the contract itself when actually made. And if so demanded it is evidently included in the constitutional prohibition, even although the words 'exacted and taken,' should be regarded as confined to actual receipt. In an instrument like this we are bound to presume, that every word was deliberately weighed and considered before it was inserted. And with the act of 1704 before them, and about to establish under a constitutional sanction the principle contained in its first section, it ought not to be supposed that its words were lightly or carelessly changed, or the word 'demanded,' substituted in place of the word 'exact,' without an object. And the natural [**59]  and proper object would be to condense in a few words the substantial provisions spread out in the 1st and 2nd sections of the act of 1704. And we think they have used words sufficient to accomplish their purpose, and that the comparison between the words of this act of Assembly, and the Constitution of 1851, tends to confirm the construction we have placed upon the latter, and which its language naturally and legally imports.
"Upon the whole the court is of opinion that the demurrer of the plaintiff to the plea of usury cannot be maintained, and judgment must be entered accordingly." 

183 of 196 DOCUMENTS 

CHRISTIAN F. MAENNEL and GEO. A. SCHEPETER vs. WM. F. MURDOCK and others, Garnishees of FALCONER & HASKELL.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

13 Md. 163; 1859 Md. LEXIS 20 

March 11, 1859, Decided 

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

Attachment on judgment, issued on the 23rd of October 1854, at the instance of the appellants, by way of execution, against the lands, tenements, goods, chattels and credits of John Falconer and John H. Haskell, the defendants in the judgment, and laid in the hands of William F. Murdock, William H. Norris and George W. Dobbin, as garnishees. The garnishees appeared and plead nulla bona, on which issue was joined.

Exception. It was admitted, that the garnishees, at the time of issuing this attachment, had in their hands moneys of Falconer and Haskell, the defendants in the judgment recited in the writ, to an amount more than sufficient to cover the judgment, with interest and costs; which moneys were received and held by them, as trustees, under the following deed of trust, which was duly executed, acknowledged and recorded, and accepted by the trustees therein named. As the questions in the case depend upon the validity of this deed, it is set out at length, and for convenience of reference the several clauses thereof are designated by numbers:

(No. 1.) "This indenture, made this 16th day of September 1854, between John [**2]  Falconer and John H. Haskell, of the city of Baltimore, of the one part, and William F. Murdock, William Henry Norris and George W. Dobbin, of the same city, of the other part.

(No. 2.) "Whereas the parties of the first part have been carrying on business, in the city of Baltimore, under the firm of Falconer & Haskell, and in company with a certain John Kynock, of the city of Buffalo, in the State of New York, have been carrying on business in the said city of Buffalo, and in Canada under the firm of John Kynock & Company; and also in company with the said Kynock have been carrying on business in the city of New York, under the firm of Haskell & Company.

(No. 3.) "And whereas the said firms of Kynock & Company, and Haskell & Company were dissolved by mutual consent, which dissolution was duly advertised, and thereupon and thereby full power was given to the parties hereto of the first part, to take the assets and wind up the business of said co-partnership, which they proceeded to do.

(No. 4.) "And whereas, in these several relations, and also in their individual capacities, the said parties have contracted debts which they are unable to pay in whole, and now propose [**3]  to assign all their estate and property for the benefit of their said creditors.

(No. 5.) "Now this indenture witnesseth, that in pursuance of said purpose of assignment, and in consideration of the sum of one dollar to them paid, by the said parties of the second part, at or before the sealing and delivery hereof, the receipt whereof is hereby acknowledged, have granted, bargained and sold, assigned, transferred and delivered, and by these presents do grant, bargain and sell, assign, transfer and deliver, (in so far as by law they are entitled so to grant, bargain and sell, as sign, transfer and deliver, looking at their several co-partnership relations aforesaid,)

(No. 6.) "To the said parties of the second part and the survivors and survivor of them, and the heirs, executors, administrators and assigns of such survivor, all and singular, the property, estate, effects and credits, real, personal and mixed, in possession, reversion or remainder, at law and in equity, wherever the same may be, of the said several firms of Falconer & Haskell, and of John Kynock & Company, and of Haskell & Company, and of the said parties of the first part, individually or jointly, with any [**4]  other person or persons.

(No. 7.) "To have and to hold the said real and personal property, estate, effects and credits hereby conveyed and assigned, and every part thereof, unto the said parties of the second part, and the survivors and survivor of them, and the heirs, executors and administrators of such survivor, forever.

(No. 8.) "In trust, however, and to, for and upon the uses and trusts, intents and purposes hereinafter mentioned, expressed and declared, of and concerning the same; and for the better enabling the said parties of the second part, and the survivors and survivor of them, to execute the powers hereby intended to be reposed in them, the said parties of the first part have constituted and appointed, and do hereby constitute and appoint, and in their place and stead put and depute the said parties of the second part, and the survivors and survivor of them, to be the true and lawful attorneys and attorney irrevocable of the said parties of the first part, and in their names or otherwise, as the case may require, to ask, demand, and by all lawful ways and means whatsoever, recover, receive and get into the hands, power and possession of the said parties of [**5]  the second part, and the survivors and survivor of them, all the estate, property, effects and credits hereby conveyed and assigned, and acquittances for the same, or for so much thereof as may be so received, to give, execute and deliver, with full power and authority to the said parties of the second part, and the survivors and survivor of them, to compromise and settle, by taking a part for the whole, where they may deem it expedient, of any debt, claim or demand, owing to the said parties of the first part,

(No. 9.) "And one or more attorney or attorneys, under them, for the purpose of executing the trusts herein contained, to appoint at pleasure, and to remove, and such appointment to revoke and annul.

(No. 10.) "In trust, however, that as well the same estate and property, or the proceeds thereof arising by a sale of the same, (which sale the said trustees, or the survivors or survivor of them, are hereby authorized and empowered to make, whenever they shall think proper and most conducive to the interests of the trust,) as the moneys arising by the collection of the debts and claims hereby assigned and transferred shall,

(No. 11.) "In the first instance, be held [**6]  liable for, and applied to, the payment of all expenses attending the execution of this trust, inclusive of counsel fees contracted and owing by the said parties of the first part, in and about the management of their affairs, since they stopped payment; and also counsel fees for prosecuting claims of, and defending and resisting claims against, the said trust estate and funds; and also a reasonable commission to the said trustees for their care, diligence and attention, of, in and about the execution of the powers, trusts and duties hereby created and conferred.

(No. 12.) "And in the second place, to the payment of all claims which William F. Murdock, individually, and the firm of A. B. Davidson & Harris now, respectively, have against the said parties of the first part, as partners, whether such claims be now due or not, or arise upon endorsements for the accommodation of said parties of the first part, or in any other way.

(No. 13.) "And in the third place, to pay in such order and priority, and out of such part of the trust funds, as by law they may be entitled to be paid, all such of the creditors of the parties of the first part, being creditors in any of the co-partnership [**7]  or individual relations aforesaid, as shall, within sixty days from the date of this deed, signify their assent to the terms hereof, and execute and deliver, to the said parties of the first part, a full and final release and discharge, of and from all claims and demands against them, or either of them, to the time of executing these presents, in full satisfaction and payment of all such claims, with all interest thereon, of such creditors assenting as aforesaid, and executing such release, if the funds applicable to them, respectively, shall be sufficient for that purpose, but ratably and proportionably, according to the amount of the claims of each of the said assenting creditors, if the funds applicable to them, respectively, shall be insufficient to discharge the whole.

(No. 14.) "And in the fourth place, after the application, as is last above directed, of so much of said funds as may be necessary, to apply the residue, if any, to the payment, in such order and priority, and out of such part of the trust funds as they may respectively be entitled to be paid, of all other creditors of the said parties of the first part, co-partnership and individual, as aforesaid, ratably [**8]  and in equal proportions in their several classes, or in the whole, as the said trust funds may suffice.

(No. 15.) "And lastly, after the payment in full of all the debts of the said parties of the first part, out of such trust funds as may be properly applicable thereto, to pay over the balance or surplus, if any, to the said parties of the first part, their executors, administrators or assigns, in the proportion in which each may be entitled thereto.

(No. 16.) "And it is hereby declared to be the express condition upon which the aforegoing trust is accepted by the said parties of the second part, that neither the said trustees, nor their representatives, shall be answerable for, or bound to make good, any deterioration or loss that may happen to the said trust estate, effects and property, unless the same be consequent upon their wilful commission, omission or neglect. In testimony whereof, the said parties of the first and second parts have hereunto subscribed their names and affixed their seals, on the day and year first above written."

The plaintiffs then asked an instruction to the effect, that the above deed was void and inoperative as against them, but the court [**9]  (PRESSTMAN, J.) refused to grant this prayer, and to this ruling the plaintiffs excepted, and the verdict and judgment being in favor of the garnishees, appealed.  

DISPOSITION:
Judgment affirmed by a divided court.  

HEADNOTES:

A deed of trust for the benefit of creditors and exacting releases is not void under the insolvent law of 1854, ch. 193, by reason of preferences contained in it; that act has no application to a case where there has been no petition for the benefit of the insolvent laws of the State.

A deed of trust, for the benefit of creditors, conveying individual and partnership assets of the grantors in several firms, contained a clause directing the trustees "to pay in such order and priority, and out of such part of the trust funds, as, by law, they may be entitled to be paid, all such creditors of the parties of the first part, being creditors in any of the co-partnership or individual relations aforesaid, as shall, within sixty days," assent to the deed and execute releases. HELD:

That this clause is entirely unobjectionable, as it displays an upright intention to submit, as far as the grantors could do so, all legal questions, as to the distribution of the fund, to the adjudication of the tribunals constituted for that purpose.

Such a deed being one of trust, though this circumstance does not necessarily oust the jurisdiction of a court of law, yet it enables equity to take cognizance of the matter, and to marshall and distribute the assets.

A clause in such a deed, authorizing the trustees to sell the property conveyed, "whenever they shall think proper and most conducive to the interests of the trust," is not objectionable.

A clause which provides that neither the trustees, nor their representatives, shall be answerable for, or bound to make good, any deterioration or loss that may happen to the trust estate, "unless the same be consequent upon their wilful commission, omission or neglect," does nothing more than declare what the law ascertains as the extent of their liability, and is unobjectionable.

A clause authorising the trustees, "one or more attorney or attorneys under them, for the purpose of executing the trusts herein contained, to appoint at pleasure, and to remove, and such appointment to revoke and annul," is free from objection.  

COUNSEL:
J. Mason Campbell and Thos. S. Alexander for the appellants, relied upon the following objections as fatal to the validity of the deed.

1st. The deed carries the assets of three firms, viz., Falconer & Haskell, Kynock & Co., and Haskell & Co., one of the partners (Kynock) in the two firms last named being no party to the deed, and its declared purpose is to settle the affairs of those firms with their respective creditors. It is submitted, that the deed is void by reason of the junction of all these separate concerns in one conveyance, for administration, together. In the first place it exposes the creditors of Falconer & Haskell (to which class the appellants belong) to be delayed of their dividends, by proceedings instituted by the creditors of Haskell & Co., and Kynock & Co., for the avoidance of the deed. These last named creditors are strangers, in interest, to the appellants, and yet the rights of the appellants are subject, by the execution of this deed, to disturbance [**10]  and defeat by these strangers. This ground of objection would be available, even if there were apparent upon the face of the deed no flaw in it. The risk of fatal defects, dehors the deed, would be enough. But, in this instance, it is certain the deed could not stand an assault by the creditors of Kynock & Co., or of Haskell & Co., because it stipulates, in effect, for a release of Kynock, (by the release, without reserve, of his partners in these firms,) and yet does not convey Kynock's separate estate. In the next place, if there were no other objection, it suffices that the terms of the deed virtually authorise the trustees to delay the distribution of Falconer & Haskell's assets among their creditors, until all questions arising out of the claims made upon Kynock & Co., or Haskell & Co., or the prosecution of claims due those firms are settled. This consequence grows necessarily out of the power which the trustees have to apply Falconer & Haskell's assets to pay the expenses of resisting claims against, or collecting debts due to, the other partnerships. In the last place, the clause No. 11, which allows the trustees, before any distribution, to apply so much of the fund in their [**11]  hands, made up of all the estates conveyed, as may be necessary "for prosecuting claims of, and defending and resisting claims against, the said trust estate and funds," presents a fatal objection to the union, in a single deed, of several indebted concerns. The fund in the hands of the trustee, so to be applied, is to spring from several sources: 1st, the partnership estate of Falconer & Haskell; 2nd, the individual estate of Falconer; 3rd, the individual estate of Haskell; 4th, the partnership estate of Kynock & Co.; 5th, the partnership estate of Haskell & Co. Coming from all these quarters, it is to be massed together into a single fund, and out of that general fund payments are to be made for prosecuting claims of, and resisting and defending claims against, the said trust estate and funds. Thus Falconer & Haskell's assets may all be swallowed up in suits against the insolvent debtors of Kynock & Co., or in resisting the attempt of one creditor of Haskell & Co., to get a preference over the other creditors of that firm. A man in failing circumstances cannot devote his property to pay another man's debts.

2nd. The 12th clause gives a preference to two specified creditors.  [**12]  A deed of trust, stipulating for releases, must not only convey all the grantor's property, but convey it equally for the benefit of all. 9 Gill 222, Powles, et al., vs. Dilley, et al. The act of 1854, ch. 193, sec. 13, clearly strikes down such a deed as this, because the preference is such as is there condemned.

3rd. The 13th clause directs the trustees "to pay in such order and priority, as by law they may be entitled to be paid, all such of the creditors of the parties of the first part, being creditors in any of the co-partnership or individual relations aforesaid, as shall," &c. This clause assumes there is a distinction between the creditors and the funds applicable to their satisfaction, but it does not declare what that distinction is. It leaves it to be ascertained "by law." The grantors probably meant that Falconer & Haskell's assets ought to pay Falconer & Haskell's debts, Falconer's assets his individual debts, and so on, but they do not say so, and the question is, whether, under the circumstances of the case, "the law" says so, or says anything on the subject? At law, strictly speaking, there is no rule whatever limiting the claims of partnership creditors to [**13]  partnership assets. A partnership creditor suing and recovering judgment against the partners may take in execution separate as well as joint assets. 6 Ves., 126, Ex-parte Ruffin. 1 Story's Eq., sec. 675. Assuming, however, (what is by no means conceded,) that the words "by law" mean law in its largest sense, as including equity, is there any rule in equity which prescribes for that forum the distribution of partnership and separate assets in such a case as this? It will be found, on examination, that the only cases in which equity prescribes any rule, are cases of dissolution by technical bankruptcy, or the death of a partner. Story on Part., secs. 360, 361. Whether, therefore, we look to law or equity, there is no rule laid down for the distribution of partnership and individual assets in a case circumstanced like the present, in which there is neither death nor bankruptcy. The deed then prescribes no rule of distribution, but leaves the distribution to the law governing the case, and there is no law governing such a case. The only law laid down in the books applies to quite other and different cases. If, however, the terms of the deed be disregarded, and a loose construction should [**14]  substitute for the words "by law," the words "by analogy of the law," so as to bring to bear on this case the rule which belongs to other cases in some degree resembling it, it must be conceded, that the only quarter to which resort can be had, will be to the cases of dissolution by technical bankruptcy or death, and to the rule which governs distribution in such cases. But it will be found, that the rule is not the same in both these cases. Where one partner dies, a joint creditor may resort to his individual assets, in the first instance, without resorting to the joint funds in the hands of the surviving partner. 1 Mylne & Keene, 582, Wilkinson vs. Henderson. In bankruptcy the joint creditors cannot go upon the separate estate until he has first exhausted the joint estate. There are other points of difference between the distributions in these classes of cases. Story on Part., secs. 362, 363, and cases in the notes. It is plainly impracticable then, to find, in the only analogies possible, the rule sought for, as those analogies furnish different rules, and there is nothing to indicate which is meant. In addition to all which, it is plain, that the clause in question was framed upon [**15]  an entire misapprehension. It manifestly proceeds upon the assumption, that the creditors, as such, have a lien, the joint creditors upon the joint estate, and the separate creditors upon the individual estates. It is well settled, that the creditors have no such lien as is supposed. 2 Md. 1, Glenn vs. Gill. 7 Md. 403, Guyton vs. Flack. 8 Barb., 595, Greenwood vs. Brodhead. 11 Barb., 240, Van Rossum vs. Walker.

4th. The power of sale given to the trustees, by the 10th clause, is fatal to the deed. The sale is not to be made at once, but is to wait the pleasure of the trustees, and their action is to be determined by what they shall think conducive to the interest, not of the creditors, but of the trust. It might be well enough for creditors appointing assignees, to vest them with such discretion, but not so where the debtor undertakes to guide their action for his own benefit. There is here an ultimate trust, not implied merely, but expressed, for the benefit of the grantors, and the interest confided to, and to be consulted by, the trustees, in selling, is not merely that of creditors, but of the grantors likewise. If, by waiting and keeping the property out of the market,  [**16]  the trustees can realize one hundred cents for the creditors, and a surplus for the debtors, they are not to consult merely what is best for the creditors, but what will benefit the debtors and keep the creditors waiting. 9 Barb., 257, Woodburn vs. Mosher. 7 Md. 391, American Exchange Bank vs. Inloes.

5th. The limitation of the responsibility of the trustees in the 16th clause is also a fatal objection. 3 Selden, 438, Litchfield vs. White. Burrill on Assignments, 209. Their liability is limited to "their wilful commission, omission or neglect," which means wilful commission, wilful omission, and wilful neglect, for otherwise the slightest omission or neglect would render them liable, whereas nothing but wilful commission will do, which was clearly not the intention of the parties to the deed. But the law holds trustees responsible for something less than wilful commission, omission or neglect.

6th. The power of composition with debtors, contained in 8th clause, also vitiates the deed. 7 Md. 391. 9 Barb., 257.

7th. The power given by the 9th clause, to the trustees, to delegate their powers, is a new and wholly indefensible clause in such a conveyance.

8th.  [**17]  By the 11th clause, the trustees were to hold the entire estate liable for, and apply it to the payment of, all expenses attending the execution of the trust, inclusive of counsel fees, contracted and owing by the grantors, in and about the management of their affairs, since they stopped payment. This authorises them to hold the whole of the trust estate until all the litigation, in reference to the trust, is terminated, and such power makes the deed fraudulent and void. 23 Barb., 68, D'Ivernois vs. Leavitt.

Wm. H. Norris and Geo. W. Dobbin for the appellees, argued:

1st. The fact, that the deed conveys several separate estates is no objection to it; for if such an objection could be sustained then it would follow, that a party could not convey his individual and partnership property by the same conveyance, for these are two estates. The error in the argument for the appellants on this point is, that it confounds conveyance with distribution. There is no delay or hindrance of creditors by the conveyance of the estates of the three firms in one deed; their administration is to be separate, and by operation of law it is the same thing, so far as administration is concerned,  [**18]  as if there were separate conveyances of each estate simultaneously executed, and it is an erroneous construction of the deed to say, that the settlement of the estate of one partnership, is to be deferred until the expense of resisting claims against or collecting debts due to the other partnerships is paid. Nor is the objection, that Kynock is no party to the deed, though it stipulates for releases to him, one which can be taken advantage of by these appellants, for they are not creditors of Kynock, and not therefore prejudiced by the deed. The deed is only void by the Stat. of 13th Eliz., as to those who are hindered and delayed by it; as to all others it is valid.

2nd. The preference contained in the 12th clause is legal. The insolvent law of 1854, ch. 193, has no application to such a case, but has exclusive reference to cases of technical insolvency, where there has been a petition for the benefit of the insolvent laws. 11 Md. 452, Triebert vs. Burgess. This law does not declare, that all other deeds than those mentioned in its 13th section shall be void, and that such a preference as the one in question, in a deed not affected by the insolvent laws, is legal, is manifest [**19]  from the case of Powles vs. Dilley, cited by the appellants. See, also, 22 Barb., 550, Bank of Silver Creek vs. Tallcott.

3rd. By the true construction of the deed, looking to its recitals, which fully set out the co-partnership and individual relations of the grantors, the purpose of the deed, and the clauses providing for the distribution of the trust funds, there is no provision therein, which either expressly directs or would permit, the application of any part of the funds in a way contrary to the provisions of the law, as they would be declared by a court administering the trust.

The intention of the parties is to prevail in the construction of deeds, as well as all other instruments, unless it violates some established principle of law. (9 G. & J. 77, Hope vs. Hutchins.) Such a deed as this is not to be construed as to what it may mean, (Burrill on Assignments, 347,) but it must be construed by reference to all its clauses and parts, and the recitals contained in it are to be looked to as the language of the grantors, for the purpose of ascertaining their intention. 3 Adol. & Ellis, 513, Rogers vs. Brooks. 69 Eng. C. L. Rep., 750, Walsh vs. Trevanion. 76 Eng. C.  [**20]  L. Rep., 652, Boyes vs. Bluck. 8 Md. 426, Malcolm vs. Hodges. 23 Pick., 444, Wiggin vs. Tudor. Looking, therefore, to the recitals in this deed, and all its clauses, it is obvious the grantors intended to distribute these funds among the creditors of the several partnerships in such order and priority as the law directs. Now the principle upon which the argument for the appellants proceeds is, that though the partners have an equity to have the partnership effects applied to partnership debts, and have a lien on them to have them so applied, yet the creditors have something approaching to a lien, but not a lien, and, therefore, there is no law of distribution in such a case. The answer to this is, that the fact that the creditors have no lien, does not authorise the inference that there is no law of distribution. There is a law of distribution in such a case, the law, that all the property is to be distributed among all the creditors equally, both joint and several, where they have no lien--the law of equality. If the partners have an equity or lien, there is nothing to prevent their conveying that right and lien, and to impress it upon the proceeds of sale in the hands of the [**21]  grantees. But if they have no such right to convey, the property is then left to be distributed equally among all their creditors, and this deed was framed with both aspects--to suit either alternative. The deed is in fact very similar to that in Andress vs. Miller, 15 Penn. State Rep., 316, where the court held, that the intention of the parties was to preserve the distinction between joint and separate creditors, but as we have said, it was framed to suit either alternative. The only objection then is, that the grantors have not pointed out all the modes of distribution. But it is because the law of distribution is not clear, that the courts say, the trustees may go into equity and ask the advice of that court as to the distribution and management of the trust, and this protects the deed from all cavil, as to the uncertainty of the distribution pointed out in it. 11 Md. 184, Inloes vs. American Exchange Bank.

4th. The clause exempting the trustees from liability for a loss to the trust estate, except the same shall arise from their wilful commission, omission or neglect, creates no exemption which the law does not create irrespective of such clause, and of consequence the [**22]  validity of the deed is not affected thereby. Story on Agency, sec. 183. 8 Gill 430, Gray vs. Lynch & McDonald. 6 Watts & Sergt., 304, 313, Helmsley vs. Western Bank.

5th. The power of sale given to the trustees, to be exercised "whenever they shall think proper and most conducive to the interests of the trust," is a reasonable power like the power of sale on credit, and cannot vitiate the deed. Burrill on Assignments, 347. 11 Md. 184, Inloes vs. American Exchange Bank. By it the trustees are left to a sound discretion. The intention of the parties comes in aid of the deed, and the words "most conducive to the interests of the trust," construed by that intent, mean, "most conducive to the interests of creditors." The power of composition is also for the benefit of creditors, and is left to the sound discretion of the trustees. The power contained in the 9th clause, by the true construction of the instrument, only gives the necessary power of sub-agencies. Story on Agency, sec. 201.

We insist, therefore, that the deed is unobjectionable in every particular. It was prepared with great care, and on the basis of that in McCall vs. Hinkley, 4 Gill 128. The judges who [**23]  sustained that deed were bound to, and doubtless did, consider all its clauses, and by sustaining that they have sustained all the provisions incorporated into this deed.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*176]  LE GRAND, C. J., (with BARTOL, J., concurring.)
The appellants in this case had recovered a judgment in the Superior court of Baltimore city, against Falconer and Haskell, upon which they issued an attachment, by way of execution, and laid it in the hands of the appellees, who were trustees under a deed from John Falconer and John H. Haskell. The garnishees pleaded nulla bona, and, on issue joined, the plaintiff offered in evidence the writ of attachment, and the admission of the garnishees, that at the time of its issual and service on them, they had in their hands moneys of Falconer and Haskell, more than sufficient to cover the amount of the judgment against the defendants.
Upon this state of case, the plaintiffs offered a prayer, (which was rejected by the court,) in effect denying the efficacy of the deed of the defendants, so far as their claim to judgment, in this case, is concerned. The only [**24]  questions, therefore, which are now before us, are those which involve the validity and sufficiency of the deed set out in the record.
We shall examine the objections urged to the deed, in the order they have been presented to us on the part of the appellants, who were the plaintiffs below. The deed, as it appears in the report of this case, is separated into sections, and as such numbered, and, for the purposes of perspicuity, we shall, in what we say, notice the particular parts referred to, by the designation of the number affixed to it.
The second and third sections of the deed recites, that the defendants, under the firm of Falconer and Haskell, carried on business in the city of Baltimore; that in company with John Kynock, of the city of Buffalo, they carried on business in the city of Buffalo and in Canada, under the firm of John Kynock & Company; and also carried on business in company with the said Kynock, in New York, under the firm of Haskell & Company. It is also recited, that the said firms of Kynock & Company, and Haskell & Company, were dissolved by mutual consent, which dissolution was duly advertised, and that thereupon, and thereby, full power was given [**25]  to the defendants, to take the assets and wind up the business of said co-partnerships, which they proceeded to do.

 [*177]  To these clauses of the deed are interposed two objections. 1st. That the deed is executed by Falconer and Haskell only. 2nd. That by uniting in the same trustees, the power to settle the affairs of three distinct firms, the separate creditors of each will be delayed in the acquisition of what belongs to them, until the assets of all be accurately ascertained, and ready for final distribution. In reply to the first of these objections, it is only necessary to observe, that the failure of Kynock to unite in the deed, can in no sense give the appellants cause of complaint, whatever right, in this regard, it might afford to the individual creditors of Kynock, or to those of the firms of which he was a member. The appellants have no claim against either Kynock or the firms, as such, of which he was a member. All the appellants have a right to ask is, that the assets of Falconer and Haskell, individual and partnership, shall be made liable for the payment of their debts, and this is done by the deed. The second objection, in our view of it, is founded [**26]  in a misapprehension of the true character of the deed. It contemplates separate distributions; that is to say, the funds belonging to the several firms and to the individuals composing each, are to go, in their proper order, to the creditors of each. The accounts of each can just as readily be kept distinct, the one from the other, as though separate deeds had been made in each case. Each fund is only to be subjected to the expenses and delays incident, and properly belonging, to it. We are unable to perceive the force of the objection. If the trustees fail to discharge their duty in this particular, a court of equity will be always ready to compel them.
It is said, that the 12th clause of the deed is objectionable for two reasons; first, because it gives a preference to two specified creditors; and second, because a deed of trust stipulating for releases, must not only convey all the grantor's property, but, convey it equally for the benefit of all; and, in support of these propositions, the case of Powles, et al., vs. Dilley, et al., 9 Gill 222, and the act of 1854, ch. 193, sec. 13, are cited. Neither the case in 9th Gill nor the act of Assembly,  [**27]  is sufficient to invalidate this part of the deed. When 

 [*178]  speaking of the avoidance of a deed because of a preference, the court refer to the operation of the insolvent laws. They say, to render a transfer to a favored creditor void under the insolvent system, the debtor must intend both to apply for the benefit of the insolvent laws, and intend to prefer the particular creditor or creditors; the guilty intent must concur in both particulars. Moreover, that it is incumbent on the complaining party to establish this motive. In the case before us, there is no question touching the insolvent laws; it arises under a deed of trust, and there is no proof of an application for, or intention to apply for the benefit of the insolvent laws. So far from the case cited being an authority against the validity of this clause in the deed, it is an express one in favor of it, declaring, as it does, that the common law has always, in the absence of every badge of fraud, sanctioned the right of one creditor to obtain the payment of his debt from the debtor, to the exclusion of other creditors. The act of 1854, ch. 193, is, as its title declares, "An act for the relief of  [**28]   insolvent debtors;" and in Triebert vs. Burgess, and others, 11 Md. 452, it was declared to have no application to a case in which there has been no petition for the benefit of the insolvent laws of the State. In support of this view of the clause in question, several authorities were cited at the bar, but inasmuch as the decisions of our own appellate tribunal are pointed and conclusive, we deem it unnecessary to indulge in any comment upon them.
The 13th clause of the deed is assailed on the ground, that it directs the trustees "to pay in such order and priority, and out of such part of the trust funds, as by law they may be entitled to be paid, all such creditors of the parties of the first part, being creditors in any of the co-partnership or individual relations aforesaid, as shall, within sixty days," &c. It is rather difficult to comprehend an argument which rests, for its support, on the ground, that it is unlawful to do that which the law approves. So far from this provision of the deed being obnoxious to censure, we think it evinces, very clearly, a disposition not to do anything forbidden by the law, and the grantors, in the use of these [**29]  broad and comprehensive terms, display 

 [*179]  a becoming and upright intention to submit, as far as they could do so, all legal questions for the adjudication of the tribunals constituted for that purpose. As to the order of distribution, there ought to be no difficulty. Where priorities have been secured, they will, of course, be respected and enforced, and, for the rest, the law of distribution is pointed out in the cases of McCulloh vs. Dashiell, 1 Harris & Gill 96, and Glenn vs. Gill 2 Md. 1. The deed being one of trust, (although this circumstance does not necessarily oust the jurisdiction of a court of law, 7 Md. 387,) yet, it enables equity to take cognizance of the matter, and to marshall and distribute the assets.
The 10th clause is claimed to be fatal to the deed, because, by it, the sale is not to be made at once, but the trustees are empowered to make it "whenever they shall think proper and most conducive to the interests of the trust." In support of this objection, the case of the American Exchange Bank vs. Inloes, Garn. of Turnbull & Co., is relied upon. That case was before the court on two occasions,  [**30]  and will be found reported in the 7th and 11th volumes of Maryland Reports. The clause which was there held to be fatal to the deed, was one which expressly empowered the trustee, at his discretion, to sell, "gradually, in the manner and on the terms in which, in the course of their business Turnbull & Co. had sold and disposed of their merchandize." This the court held to be an indefinite postponement of the execution of the trust, and not a mere discretion, which, to some extent, must be confided to the trustee. A reference to the case, as reported in 7 Md. 390, and 391, will show, that the court did not intend to go any farther than to declare, that the law will not tolerate any hindrance in assignments for the benefit of creditors, "beyond what may be necessary for the purposes of the trust;" and also, that it was not its purpose to overrule the case of Beatty vs. Davis, 9 Gill 211, or, to deny, on this point, the force of the case of Macham vs. Stearns, 9 Paige. 398. When the case came again before the court, (11 Md. 184,) the following language is employed: "It does not follow, from the views [**31]  we have expressed, in reference to provisions of this kind, that sales 

 [*180]  must be always made immediately and for cash, whether the interests of creditors will be affected or not. The trustee may be left to the exercise of a sound discretion, but the assignment must not confine him by unreasonable provisions. *** If these assignments are fairly and bona fide made, the creditors, if consulted by the trustee, will know best how the trust should be conducted, and if sales, in any particular manner, will yield larger results, they will have the best reason for assenting to that mode. Thus the creditors can prescribe a law for the guidance of the trustee, which will fully protect him, and may accomplish for them what, under the terms of the deed, he may not be able to effect. And, where the trustee is apprehensive of difficulty, or, for any reason, desires protection in the performance of his duties, he may invoke the jurisdiction of a court of equity, and proceed under its direction." These observations relieve this clause of the deed from the objection urged against it.
Clause No. 16, which provides, that neither the trustees, nor their representatives, shall be [**32]  answerable for, or bound to make good any deterioration or loss that may happen to the said trust estate, effects and property, unless the same be consequent upon their wilful commission, omission or neglect, does nothing more than declare what the law ascertains, as the extent of their liability: 6 Watts & Sergt. 313, and the case of Gray, et al., vs. Lynch & McDonald, 8 Gill 403.
The next, and only question remaining to be considered, relates to the 9th section of the deed, which authorises the trustees "one or more attorney or attorneys under them, for the purpose of executing the trusts herein contained, to appoint at pleasure and to remove, and such appointment to revoke and annul." This, it is said on behalf of appellants, is a new and wholly indefensible clause in such a conveyance. We do not concur in this opinion. This is not a case to which the maxim potestas delegata non potest delegari, will apply. Here, the authority to make such appointments is expressly given, and the only inquiry therefore is, whether the grantors had the right to confer it? And we answer it in the words of the Supreme Court of Pennsylvania, in the case of Hennessy 

 [*181]    [**33]  vs. The Western Bank, 6 Watts & Sergt. 312: "We see nothing wrong in that part of the deed which, in order to facilitate and hasten the object and purposes of the assignment, gives full power to assignees to appoint and employ, according to their discretion, one or more agents or attorneys under them, with full or limited powers, and the same at pleasure to dismiss and revoke. There is nothing more in this clause, than what is usually contained in every letter of attorney."
From what we have said, it follows, we are of opinion the court below properly rejected the prayer of the plaintiffs.  

CONCURBY:
ECCLESTON; TUCK 

CONCUR:

ECCLESTON, J.--I am of opinion that the deed is void on its face, because it exacts unconditional releases from the creditors of Falconer and Haskell, of all claims against them as individuals and as partners, they being interested in firms of which Kynock was a partner; and the deed not including Kynock's property. This objection is conclusive, and the plaintiffs in this case have a right to make it. This relieves me from passing on the other clauses of the deed, in regard to which I pronounce no opinion.
TUCK, J.--I concur with Judge Eccleston, as to the effect [**34]  of the clause of the deed exacting releases, and with the other judges in the opinion filed as to its other provisions.
Judgment affirmed by a divided court. 

184 of 196 DOCUMENTS 

STATE OF MARYLAND vs. THE BALTIMORE & SUSQUEHANNA STEAM COMPANY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

13 Md. 181; 1859 Md. LEXIS 21 

March 11, 1859, Decided 

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

Debt, brought on the 13th of September 1855, by the State against the appellee, to recover the penalty imposed by the first section of the act of 1838, ch. 375, for the illegal transportation of a slave. Plea, nil debet.

Exception. It was agreed, that the defendants were, in August 1855, the owners of the steamer Lancaster mentioned in the declaration, and have been, since that time, up to the bringing of this suit, except so far as that ownership is modified by a charter-party to be given in evidence. The plaintiff then proved by a competent witness, that Henry Miles, a citizen of Somerset county, Maryland, was, in August 1855, the owner of a negro boy, "Sam," and that at a camp-meeting which took place in that county, on the Annamessix river, the steamer Lancaster was there for bringing passengers to the camp-meeting from Baltimore, and carrying them in return; that, on Sunday, witness went on board the said steamer to go to Baltimore, where the boat arrived the next morning, and that after the steamer left the camp-meeting, witness saw said negro "Sam" on board the boat, in the public passage from bow to stern, talked with him, and [**2]  has not seen him since that time.

The defendants then proved, that before the camp-meeting above mentioned, the Lancaster was chartered by her owners to Charles Marshall, John T. Adams and Francis Mitchell, to carry passengers from Baltimore to the camp-meeting and back to Baltimore; that the captain and crew of the owners were to navigate the steamer, and the charterers were to have the exclusive control and pay for the passengers, going and coming, and regulate the terms of passage; and that under this contract of charter, the charterers had the right to determine what passengers should or should not go in said vessel, and exercised that control during the continuance of the contract, and were to pay a compensation to the owner of $ 112.50; that the steamer left Baltimore on Saturday night before the camp-meeting, reached the Annamessix river on Sunday morning about 9 o'clock, remained there until Sunday evening at 6 o'clock, and reached Baltimore next morning; that whilst in the river, at the camp-meeting, Marshall, one of the charterers, sold some tickets for the trip back, but only one to a negro man, he having gone down without a ticket; that about one hour before the boat [**3]  left, they ordered all negroes and other persons, on board, to leave, and after the decks were cleared, the charterers took their stations at the three gangways, (the fourth being shut up;) that one black woman, a slave, was on board, who did not go down, and there were from fifteen to twenty negroes on board, and that Mitchell knew the negro "Sam," but Adams and Marshall did not; that the charterers remained at the gangways to receive tickets, until the boat left, and after she left Mitchell went into every hole and corner of the boat, except the fireman's room, to collect tickets and to see if improper person or persons without tickets, were on board; that he knew "Sam," and upon making such search did not see him at that time or after. They further proved, that no negro was in the fireman's room at any time during the trip to Baltimore, and that the captain of the Lancaster made a search after the boat had left the camp-ground, on her return to Baltimore, and looked in all parts of the boat to see if slaves were on board, and that he found no negro on board, except such as went down in the boat.

The plaintiff then asked an instruction to the jury, that if they believe, from [**4]  the evidence, that the negro "Sam," spoken of by the witnesses, was the slave of Henry Miles, and was, in August 1855, transported from Somerset county to Baltimore, on board the steamboat Lancaster, without the permission in writing of said Miles, and did so escape from his said master, and that the defendant was then the owner of said steamboat, then the plaintiff is entitled to recover.

This prayer the court (MARSHALL, J.) refused to grant, as well also as several asked by the defendants, but gave the jury the following instruction:

"If the jury believe from the evidence in the cause, that the steamboat spoken of in the pleadings and evidence was, at the time referred to in the same, the property of the defendant, and that she made the trip from Baltimore to the Eastern Shore of Maryland and back, as stated in the evidence, under the command and management of officers and men in the employment, and under the control, of said defendant; and if they shall find, that the colored man spoken of in the pleadings and evidence, was, at the time of said trip, a slave, and the property of a citizen of this State, and that being such slave he was transported, on the occasion of the [**5]  trip referred to, on board said boat, from the Eastern Shore of Maryland to Baltimore, or any other place, without a written permission from his master, then they will find a verdict for the plaintiff, unless they shall find, that at the time of said trip, the said boat was officered and manned with competent men to prevent the transportation of slaves on board of said boat, and that on the occasion of said trip, the officers and others, having the control and management of said boat, used all proper precaution to guard against the transportation of any slaves, and that such transportation took place, if at all, notwithstanding all reasonable and due diligence, on the part of said officers and other persons, to prevent the same."

To the refusal of its prayer, and to the granting of the instruction given by the court, the plaintiff excepted, and the verdict and judgment being in favor of the defendants, appealed.  

DISPOSITION:
Judgment reversed and procedendo.  

HEADNOTES:

The act of 1838, ch. 375, "to prevent the transportation of people of color upon railroads or in steamboats," enacts, "that it shall not be lawful for any slave to be transported on any railroad, or any steamboat, &c., without a permission in writing from the owner of such slave, under the penalty of $ 500 for every violation of this act, to be recovered by an action of debt, in the name of the State, from such railroad companies, or the owners or captains of such steamboats," &c. HELD:

That the owners of a steamboat cannot escape from this penalty by showing that neither they, nor their agents, had any knowledge the slave was on board the boat, and had no intention to violate the law, and had used reasonable diligence to prevent such persons from coming aboard.

This act was passed to remedy the evil of the great loss suffered by slave-owners, by the facilities of escape afforded to slaves, by means of railroads and steamboats, and the Legislature having used words, which, by their plain meaning, are adequate to the end proposed, the law must be interpreted by its letter.

Where one of two innocent parties must suffer, the loss ought to fall on him who could most easily have prevented it.

A steamboat was chartered by certain parties, to carry passengers on an excursion to a certain place and back, and the charterers had exclusive control over, and the pay for, the passengers, with the power to regulate the terms of passage, and what passengers should, and should not, go on the boat, but the steamer was navigated by the captain and crew of her owners. HELD:

That the latter, and not the charterers, were to be regarded as owners of the boat for the trip, and chargeable and responsible as such.

A charterer who, by his contract, hires, and has exclusive possession, command and navigation of the ship for the voyage, is the owner for the voyage, but if the general owner retains such possession, command and navigation, or contracts to carry a cargo on freight for the voyage, he is the owner and responsible as such.

Where the freighter is owner for the voyage, he is responsible for the conduct of the master and crew, during the voyage; where he is not such owner, the liability attaches to the general owner. 

COUNSEL:
William S. Waters and I. Nevitt Steele for the appellant.

The proper construction of the first section of the act of 1838, ch. 375, is the question presented in this case, and it is submitted, that by the true construction [**6]  of this law, no question of diligence or proper caution should have been submitted to the jury, and that the only facts necessary to a recovery were those set out in the appellant's prayer, because:--

1st. This is the clear and plain meaning of the words of the act. The thing declared unlawful is, "for any slave to be transported without the written permission of his master, mistress or owner." It refers to no active agency by any one, and as a consequence of "every violation of this act" the penalty is given.

2nd. The ordinary meaning of a statute is to prevail, if such meaning is clear and free from doubt. The court cannot look outside of a statute in order to find its intent, when that intent is plainly expressed. 2 Paine's C. C. Rep., 584, Coleman vs. Strong.

3rd. The object of the statute was to meet an extraordinary emergency described in its preamble, and no other construction can make it available to that end, except that contended for by the appellant. If such is not the construction, the statute is ineffective, for nothing would be added to the security given by the common law in such cases. 6 G. & J. 297, Steam Nav. Co. vs. Hungerford. 15 Mees. & Wels.  [**7]  , 404, Regina vs. Woodrow.

Nor is there any force in the position assumed by the appellees, that they were not the owners of the boat at the time, and therefore not the parties liable. Within the purview of this act, a charterer cannot be considered as the owner. But apart from this consideration, Adams, Marshall and Mitchell were not owners within the meaning of that term as used in commercial law. They chartered the boat for this particular trip, but she was navigated by the captain and crew of the defendants, and this constitutes them owners, no matter who may have chartered the boat for the particular trip. 3 Kent, 135. Abbott on Shipping, 67 to 69.

Cornelius McLean for the appellees.

This case arises under the first section of the act of 1838, ch. 375, which prohibits, under the penalty of $ 500, the transportation of slaves on railroads or in steamboats, and the suit is for that penalty; and it is insisted on the part of the appellees:--

1st. That the instruction granted by the court puts the true construction upon this act. It is a penal statute, and therefore to be strictly construed; and if it appears, as this instruction assumes, that the defendants acted [**8]  in good faith, diligently and with proper precaution, with the proper means in their possession, they are not guilty in the eye of the law. Dwarris on Statutes, 662. 5 Esp., 203, Wright vs. Smith. There was no secreting or intention, on the part of the defendants, to bring away the slave.

2nd. It appears from the testimony, that the steamer belonging to the appellees, on which it was alleged the slave was transported, was, in fact, chartered for the voyage to other parties, who, by the terms of the contract, were to have exclusive control over the passengers, to say who should and who should not go on the boat, and that they exercised this control. These charterers were the parties responsible, and the defendants cannot be made answerable criminally for the conduct of others. These defendants were not the owners of the boat at the time, for they had, in fact, parted with the control of the steamer, and therefore could not be held responsible under this law. Ware's Rep., 149, 153, Drinkwater vs. The Spartan. Conkling's Admiralty, 175.  

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

OPINIONBY:
TUCK 

OPINION:

 [*187]  TUCK, J., delivered the opinion of this court.  [**9]  
This is an action of debt to recover the penalty imposed by the first section of the act of 1838, ch. 375, "To prevent the transportation of people of color upon railroads or in steamboats." The questions for consideration relate to the construction of the act of Assembly, and to the ownership of the steamboat at the time the negro in question escaped.
At the trial below the State offered a prayer affirming its right to recover, on the facts given in evidence; and the defendant offered four, but the court rejected all the prayers, and gave an instruction to the jury, to which, as well as to the refusal of its own prayer, the State excepted.
As to the position on the part of the appellee, that the company, or its agents, had no knowledge that the negro was on board, and had no intention to violate the law, we think that the liability may be enforced without reference to such circumstances. The act must be interpreted by the language employed, which cannot be construed so as to aid that defence, without ascribing to the Legislature an intention not apparent from the letter. The transportation of slaves, without written permission, was the act against which this legislation was directed.  [**10]  The reasons for passing the law are set out in the preamble. If the Legislature deemed it expedient, in view of the grievance complained of, to hold persons responsible for transporting negroes, whether they were instigated by a criminal intent or not, they had the power to do so. Such acts may produce mischief in individual cases, but the inconvenience and injury would be much more general if, in every case of this kind, the party charged could defend himself by offering evidence that he did not know the negro was on board of the boat, and that reasonable diligence had been used to prevent such persons from coming on board. The law would scarcely afford any protection to slave-owners. There is no hardship in this view of the case, if we consider the condition of the parties. A master cannot always keep his servants at 

 [*188]  home, he allows them reasonable indulgence in this respect, but the captain of a boat or the conductor of a railroad car can keep them out of the boats and cars. If one or the other must suffer, ought not the loss to fall on him who could most conveniently have prevented it? 4 Metcalf 49. Pettigrew vs. Barnum, 11 Md. 434.
A negro [**11]  is presumed to be a slave, and if persons in charge of these conveyances will prevent them from entering, unless they show themselves to be free, or have written permissions, the risk would be avoided.
We suppose, that if the Legislature had designed that the liability should depend on the want of care and diligence on the part of the owners of the boat, proper words would have been employed. It is true, that statutes are not always to be interpreted by their letter. Sometimes cases not within the words are held to be within the act; and other cases are, by construction, taken without the operation of the law, though covered by the language, according to the intent and design of the Legislature, to be collected from the whole act, with reference, also, to the mischief, or cause of making the law. Scaggs vs. Rail Road Co., 10 Md. 268. The Legislature intended "to prevent the transportation of people of color upon railroads or in steamboats," as shown by the title of the act, because, as recited in the preamble, it had been represented to the Assembly, that the owners of slaves had suffered great loss by the facilities of escape afforded to slaves, by means of railroads [**12]  and steamboats; and "for remedy of said evil," the act was passed. Now, if the Legislature used words, which, by their plain meaning, are adequate to the end proposed, would it not be going in the face of the law, to give them a different construction, by allowing the party charged to excuse himself, in the manner proposed in this case, when the law, in terms, declares, that the transportation of slaves, without permission in writing, shall be unlawful under the penalty sought to be recovered here? The case of Wright vs. Smith, 5 Esp. 202, bears no analogy to the present, because the very gist of the action was the fraudulent holding over of the tenant, under the Stat. 4 Geo., II, ch. 28, for "preventing 

 [*189]  of frauds committed by tenants," and the court held, that the penalty could not be recovered where there was no fraud on the part of the tenant. The very defence relied upon was implied in the terms of the statute. Nor is this act to be construed as that of the same session, ch. 244, "to repair injuries by railroad-carriages and engines," because such companies, by the terms of the law, are not made responsible if they can prove, to the satisfaction [**13]  of the tribunal before which the case may be tried, that the injury complained of was committed without negligence on the part of the company or its agents.
We think, therefore, that the instruction given by the court was erroneous in so far as the right to recover was made to depend on the want of proper precautions to guard against transportation of slaves. Upon the other facts stated in the instruction, if found by the jury, the verdict should have been for the State, and this involves the question of ownership at the time.
According to the principles of mercantile law, the charterer of a vessel may become owner for the voyage, and this doctrine is sought to be applied to the present case. But we think we need not decide whether such an owner would be responsible under this act of Assembly, because, even according to the mercantile law, Marshall, Adams and Mitchell were not the owners. Although these persons had "exclusive control over, and the pay for, the passengers, and power to regulate the terms of passage, and what passengers should and should not go on the steamer, and did exercise such control during the contract," yet the steamer was navigated by the captain and crew [**14]  of the defendant, and this circumstance has generally been held as determining the ownership to be in the general owner. Of course, the determination of this question must depend on the terms of the contract, or its purpose and object, for sometimes the nature of the employment will give the ownership to the charterer, as necessary to enable him to perform the service. Smith's Merc. Law, 375, (Am. Ed., 1858.) We take the principle established by the Supreme Court, in the case of Marcardier vs. The Chesapeake Ins. Co., 8 Cranch 39, to be well established on authority: "A 

 [*190]  person may be owner for the voyage, who, by contract with the general owner, hires the ship for the voyage, and has exclusive possession, command and navigation of the ship. But where the general owner retains the possession, command and navigation of the ship, and contracts to carry a cargo on freight for the voyage, the charter-party is considered as a mere affreightment, sounding in covenant, and the freighter is not clothed with the character or legal responsibility of ownership." See also Hooe vs. Groverman, 1 Cranch 214, and notes in 1 Peter's  [**15]   Cond. Rep., 301. 3 Kent Com., 137. This was not a contract to carry freight, but to carry passengers, which, we think, makes no difference in determining who was the owner on that occasion. Where the freighter is owner for the voyage he is responsible for the conduct of the master and crew during the voyage; where he is not such owner that liability attaches to the general owner. Applying these rules, we presume there can be no doubt on the question, for the defendant, having retained the management of the boat by its own captain and crew, remained, and is chargeable, as owner of the boat. The defendant was, therefore, not entitled to have its first prayer granted, even conceding, which we do not decide, that under any state of proof, the penalty may be enforced against one who is merely owner for the particular voyage or trip.
We are of opinion that the plaintiff's exception was well taken, as well to the court's refusal of its prayer as to the instruction given.
Judgment reversed and procedendo. 

185 of 196 DOCUMENTS 

JOHN R. GILES vs. BRUCE FAUNTLEROY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

13 Md. 126; 1859 Md. LEXIS 17 

March 10, 1859, Decided 

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

This was an action on the case, brought on the 12th of June 1855, by the appellee against the appellant, as an innkeeper, to recover the value of a trunk and its contents, alleged to have been lost whilst the plaintiff was a guest at the defendant's inn. Plea, non cul.

In the course of the trial, two exceptions were taken by the defendant to the rulings of the court below, (MARSHALL, J.,) which, with all the facts of the case, are fully stated in the opinion of this court. The verdict and judgment were in favor of the plaintiff, and the defendant appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

A guest at a hotel paid his bill at 12 o'clock, which payment entitled him to the use of his room for the entire day; he then informed the clerk he intended leaving, and requested the latter to send his trunk, at 4 o'clock, on the same day, to a particular steamer, and left with him money for the porterage fee; the clerk undertook to do this, and delivered the trunk to the porter usually employed for such purpose, with directions to carry it to the steamer named by the guest, and paid the porter his fee. HELD:

That the proprietor of the hotel was responsible for the loss which resulted, from the fact, that through the negligence or mistake of the clerk or porter, the trunk was taken to the office of the wrong steamer, and there broken open and its contents stolen.

Where a prayer neither points nor refers to the pleadings, the correctness of its being rejected or granted, depends, not upon the state of the pleadings, but upon the evidence to which alone it refers.

An inn-keeper is responsible for the baggage of his guest, but a Colt's revolver and silver tea spoons are not embraced in the term "baggage," nor are surgical instruments, unless the guest is a physician, or a surgeon, or a student of medicine.  

COUNSEL:
Edw. Holloway and T. Yates Walsh for the appellant, argued:

1st. That in order to charge the defendant as the keeper of a common inn, the plaintiff must aver and show, that the goods were lost or stolen whilst he was a guest at the inn, and there is no proof in this case to support such an averment. 6 H. & J. 47, Towson vs. Havre-de-Grace Bank.

2nd. That the plaintiff having declared specially against the defendant as an inn-keeper, it was not competent for the court to instruct the jury, under the pleadings, that if they [**2]  found a collateral undertaking on the part of the defendant, whereby he undertook to deliver the plaintiff's goods at a place without the inn, that the defendant was liable in this action upon such undertaking. 6 H. & J. 47. 3 Hill, 485, Grinnell vs. Cook. 5 Term Rep., 389, Hyde vs. Mersey & Trent Nav. Co. 8 Coke's Rep., 32, Calye's Case. 3 Cro. Jac., 188, Gelley vs. Clerk. Bac. Abr., title Inn, Letter C, 5. Story on Bailments, secs. 479, 483, 487, 535.

3rd. That there is no evidence that the defendant undertook to carry and deliver the plaintiff's goods at any place without the inn. The clerk of the inn-keeper must act within the scope of his authority, and he had no power to make such a contract to bind his principal.

4th. That if the defendant be liable in this action, upon such an undertaking, then he is liable only as a mere mandatory or private carrier, and the onus probandi is on the plaintiff to show that the loss has been by the negligence of the defendant or his servants. 8 Carr & Payne, 212, Brind vs. Dale. 11 Wend., 25, Beardslee vs. Richardson. Story on Bailments, secs. 457, 479, 483, 487. The proof shows that the plaintiff was as much negligent as the defendant,  [**3]  and negligence on his part will prevent a recovery. 24 Barb., 384, Fowler vs. Dorlon.

5th. That the plaintiff having, on the morning of the 17th of March 1855, given notice to the agent of the defendant of his intention to quit the inn, and, also, at the time of such notice, having paid his bill, his relation as a guest was destroyed, and the defendant is not liable in this action for any loss that may have subsequently occurred. 5 Sandf., 242, 247, Wintermute vs. Clark. The relation of landlord and guest was dissolved when the latter paid his bill, and the latter's liability from that time was that of a mere bailee only. Story on Bailments, secs. 457, 487. 26 Verm., 316, McDaniels vs. Robinson.

6th. That if liable to any extent, the defendant is not liable for goods not designed for use or personal convenience on the journey; such articles do not come within the meaning of "baggage," for which alone the inn-keeper is responsible. 11 Md. 434, Pettigrew vs. Barnum. Even a common carrier is not liable for valuable articles not considered as baggage, unless he is informed of their being in the trunk.

Chas. Marshall for the appellee.

1st. No exception was taken [**4]  by the defendant to the proof of the contents of the trunk, or to the proof of their loss, and since the act of 1854, ch. 323, it is contended that as to a part of the property proved to have been lost, for which an innkeeper, as such, would not have been responsible at common law, he is now responsible by the provisions of that act. Moreover, there is no question raised by either exception as to the pleadings; on the contrary, the defendant's prayer concedes a liability on his part, other than the law would impose, if this be regarded as an action against him as inn-keeper simply: for not only did the defendant fail to except to the proof of the value and loss of the articles for which, as innkeeper only, he would not have been responsible, but, by his prayer, he concedes that he would have been responsible for the loss of these same articles, and that, too, after they had been carried away from the inn, and after the plaintiff had ceased to be a guest thereat, provided the loss occurred by collusion or fraud of the defendant. Under these circumstances, no issue with regard to the pleadings is raised by the exceptions, and the correctness of the instructions given, and of the refusal [**5]  to grant the defendant's prayer, is to be determined by a consideration of the law applicable to the cases assumed in these prayers, and without reference to the sufficiency of the pleadings to meet these cases. The point as to the pleadings cannot now be made. Act of 1825, ch. 117. 1 Gill 227, Leopard vs. Ches. & Ohio Canal Co. 4 Gill 421, Stockton vs. Frey. 7 Gill 5, Brooke vs. Waring. 1 Md. 207, Dorsey vs. Dashiell. 9 Md. 116, Owings vs. Jones. And even if the court should be of opinion that the exceptions raise any question as to the sufficiency of the declaration, it is contended that the evidence is pertinent to the second count, which is a special count for negligence in performing a duty assumed by the defendant, and that the ruling of the court below correctly declares the law applicable to the case made in the second count, and sustained by the evidence. Coggs vs. Bernard, 1 Ld. Ray., 909, and 1 Smith's Lead. Cases, 244, and notes. 5 Blackf., 323, Hill vs. Owen. 25 Wend., 642, Hawley vs. Smith. 26 Verm., 340, McDaniels vs. Robinson. His undertaking was upon a sufficient consideration, for the hypothesis of the plaintiff's prayer and the allegation of the [**6]  second count both assume that the property was lost by the negligence of the defendant, in the performance of what he had undertaken to perform, and the trust and confidence induced by this undertaking is a sufficient consideration to create a duty to act without negligence; (Coggs vs. Bernard. 2 Bing., 468, Whitehead vs. Greetham. 1 Esp., 64, Wilkinson vs. Coverdale. 1 M. & Rob., 38, Beauchamp vs. Powley. 2 Adol. & Ellis, 256, Doorman vs. Jenkins;) and he may be sued in assumpsit or case for the breach of that duty. 4 Cush., 120, Dickinson vs. Winchester.

2nd. But even if the correctness of the instruction is to be determined with reference to the pleadings, it is right. The ground of an inn-keeper's liability is the profit he received from keeping the goods or entertaining the guest, if the keeping of the goods yield no profit. 5 H. & J. 52, Towson vs. Havre-de-Grace Bank. 9 Pick., 285, Mason vs. Thompson. 2 Ld. Ray., 866, Yorke vs. Grenaugh. 25 Wend., 653, Peet vs. McGraw. In this case the defendant received pay from the plaintiff for the entire day of the plaintiff's departure, and the act by the plaintiff, in calling to pay his bill, was in strict accordance with the [**7]  rules of the inn. The inn-keeper ought not, on grounds of public policy, to be discharged from liability by the fact of a guest leaving, under the circumstances described in this case, for a guest could not otherwise be safe. He could not get his property without paying his bill, and he could not pay his bill without discharging the liability of the inn-keeper, if the doctrine contended for be correct. Although it is conceded, that to charge a defendant, as inn-keeper, for the loss of goods, the loss must occur while the goods are in his custody as inn-keeper, and, as a general rule, while they are in the curtilage, yet it is insisted, that the inn-keeper could always extend his liability by his own act, and that the custody required by the rule is to be understood according to the custom of the inn and the duties assumed by the inn-keeper, which, it is submitted, are more extensive now than when guests alighted at or departed from the door of the inn. 8 Coke, 32, Calye's Case, in 1 Smith's Lead. Cases, 171, and notes. Edwards on Bailments, 405. 1 Parson's on Cont., 623, 627, 631. 14 Johns., 175, Clute vs. Wiggins. 4 Cush., 119, Dickinson vs. Winchester. 26 Verm., 316, 341, McDaniels [**8]  vs. Robinson. 2 Kent, 758. 21 Wend., 283, Piper vs. Manny.

3rd. The defendant's prayer was properly rejected, because it was erroneous in view of other facts in evidence which it does not bring before the court. 3 G. & J. 450, 462, Bosley vs. Chesapeake Ins. Co. It requires the jury to find that the defendant was licensed, which the law presumed, and which also was not necessary to make him responsible. 1 Gill 503, Casey's lessee vs. Inloes. It also submits the legal question of the regularity of the license to the jury. It is erroneous in excusing the defendant for loss while the property was in the custody of his servant, provided there was no fraud or collusion of the defendant; negligence would have made him liable.

4th. The objection that the property lost was, in part, plate, and something other than baggage, cannot be sustained. It is respectfully submitted, that the cases cited by this court, to sustain the dictum in the case of Pettigrew vs. Barnum, 11 Md. 434, do not establish the doctrine embraced in the dictum, and that the doctrine is opposed by a large number of cases. It is also respectfully submitted, that this court was not called upon in that [**9]  case to decide directly upon the question of the kind of property, for the loss of which an inn-keeper is responsible. To sustain this view, the following authorities are relied on: 5 H. & J. 47, Towson vs. Havre-de-Grace Bank. Story on Bailments, secs. 470, 479. 1 Par. son's on Cont., 623, 628. 1 Starkie's Rep., 249, Farnworth vs. Packwood. 5 Term Rep., 273, Bennet vs. Mellor. 2 Barn. & Adol., 803, Kent vs. Shuckard. 25 Wend., 642, Hawley vs. Smith. Calye's Case in 1 Smith's Lead. Cases, 172. 26 Verm., 333, McDaniels vs. Robinson. 5 Barb., 560, McDonald vs. Edgerton. 14 Johns., 175, Clute vs. Wiggins. 2 Kent, 758.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*132]  ECCLESTON, J., delivered the opinion of this court.
This is an action on the case, instituted in the Court of Common Pleas for Baltimore city, by the appellee against the appellant, to recover the value of a trunk and its contents, alleged to have been lost whilst the plaintiff was a guest at the defendant's inn.
The declaration contains two counts, each charging the defendant as an inn-keeper.
The plea is not guilty.
At the trial it was admitted that the [**10]  plaintiff lodged, as a guest, at the hotel of the defendant; that the articles enumerated in the list annexed to the agreement were in the plaintiff's trunk at the time the same was alleged to have been broken open, and that the value of said articles is the value set opposite to them, respectively, in said list.
The list alluded to contained--

________________________________________________________________________________

1 Prime case surg. instruments,	$ 30.00	
1 Tonsil cutter,	5.00	
1 Large sized Colt's pistol,	30.00	
1 Dozen silver tea spoons,	15.00	
1 Pocket bible, gold clasp,	2.50	
1 Travelling trunk,	5.00	
________________________________________________________________________________

And sundry articles of clothing. The amount of the whole list being $ 102.55.
A witness named Gwinn testifies, that on or about the 17th of April 1855, as the agent of the plaintiff, he called upon the defendant in relation to the loss of the plaintiff's trunk, when he stated that it had been delivered to Barnum's porter, according to the usage of the house. And that if there was any loss, he, defendant, would hold Barnum's porter answerable for it. This conversation was about a month after the trunk had been lost. Some weeks afterwards, whilst passing the hotel, the defendant's clerk called the witness in and showed him a black [**11]  leather trunk, and asked him if it belonged to the plaintiff. He could not identify it.
The plaintiff also proved by Harback, that during the month of March 1855, the witness was the clerk in the office of the hotel kept by the defendant, on Baltimore street, and that 

 [*133]  from the 14th day of said month, until the morning of the 17th, the plaintiff was a guest in said house.
Upon cross-examination this witness states, that on the morning of the 17th day of March 1855, before 12 o'clock, M., the plaintiff called at the office, and told witness that he intended to leave, and then paid his bill up to that time, and that what he paid for the room entitled him to its use for the entire day. When the bill was thus paid, the plaintiff requested witness to keep his trunk for him "until 4 o'clock, P. M., in the afternoon of said day, and then have it sent to the steamer Virginia, or Gladiator," witness does not remember which, but that they both belonged to the same line. The plaintiff left with the witness twenty-five cents to pay the porter, and then left the said hotel and did not return again. Sometime after the plaintiff had left, witness sent word to Barnum's porter to call [**12]  at 4 o'clock for said trunk, there being no regular porter connected with said hotel, and it being the custom of the house to employ said porter when baggage was to be taken away. At 4 o'clock the porter called and witness had the trunk brought down by servants and delivered to him, and told him to take it to the steamer which the plaintiff had named; witness cannot now recollect whether it was to be taken to the steamer Virginia or Gladiator, but is certain, that at the time he directed the porter to carry it to the right boat, and gave the porter twenty-five cents, the sum which the plaintiff had left with him to pay the porter. This witness further states, that when he caused the trunk to be delivered to the porter, he believes that it contained all the articles mentioned in the schedule filed by the plaintiff in this cause, and that none of them were lost while the trunk was in the hotel. He did not particularly examine the trunk when brought down, but saw it and was near it, and thinks it was in order. He saw no marks of its having been opened. That when the witness Gwinn called about the loss of the trunk, the defendant, on being informed of its loss, sent for the said porter [**13]  and told him that it must be found; that after some time the trunk was found in the office of the Norfolk boats, in this city, broken open and the contents stolen, and was, in that condition, brought by said porter to the defendant's house.

 [*134]  The plaintiff also proved by Mr. Cassin, that before the present action was brought, he, as attorney for the plaintiff, called upon the defendant in relation to the loss of the trunk, when the defendant said to witness, that there was the trunk, pointing at a trunk lying there; the defendant made no further offer to deliver it, nor did witness demand its delivery.
The defendant then gave in evidence the following as the rules of his hotel, at the time when the plaintiff was a guest:
"Rules of Giles' Hotel.
"1st. Lock and bolt your door on retiring, and on leaving your room lock your door and leave the key at the office. This course the proprietor has adopted for safety, and hopes it will be strictly observed, as he will not be responsible for any loss, except when given to him or his clerk for safe keeping.
"Terms of lodging 50 cts. per day.
"2nd. Parties or families can be furnished with private parlours at an extra charge.  [**14]  
"3rd. Any person taking a room will be charged by the day, until notice shall be given at the office of vacating the same.
"4th. All meals served in chambers will be charged extra, except in cases of sickness.
"5th. Persons wishing to have clothes washed will give notice of the same at the office, the number of pieces, and at what time they will be wanted.
"6th. Persons intending to leave by the steamboats, cars, or other conveyances, will be pleased to give notice at the office in time for their bills to be ready, and the porter in attendance to convey their baggage.
"7th. Permanent boarders will be expected to settle their bills weekly.
"8th. Gaming of every kind prohibited.
"9th. A regular watch will be maintained during the night to admit travellers, furnish them with beds, and protect the establishment.
"The proprietor, ever anxious to promote and add to the comfort of his guests, will take it as a great favor to be informed of any inattention or neglect in any department of the establishment."

 [*135]  The plaintiff then prayed the court to instruct the jury, "that if they shall find from the evidence, that the defendant kept a house in the city of Baltimore, where [**15]  persons were provided with food and lodging, for money, and that the plaintiff was a guest in said house, and that he had with him, at the time, in the house, the trunk and articles of value claimed by him, and that the defendant did not deliver said trunk and its contents to the plaintiff, but that the same was lost or stolen by the negligence or mistake of the defendant, or his agent or servant, whether in said house or while being conveyed by the defendant, or his servant or agent, to any other place where the defendant had undertaken to deliver them, that then the plaintiff is entitled to recover."
Which prayer being granted by the court, the defendant excepted, and this constitutes his first bill of exceptions.
The defendant then prayed the court to grant the following instruction: "That if the jury shall find from the evidence, that the defendant was a regularly licensed hotel keeper, in the city of Baltimore, and that on the 14th day of March 1855, the said plaintiff became the guest of the said defendant, and continued his guest until the 17th day of said month; and shall further find, that on the morning of said last mentioned day, the said plaintiff gave notice to the agent [**16]  of the defendant, that he intended to leave said hotel, and paid his bill to said agent, and at said time requested the said agent to have his trunk sent to the steamer Virginia, or Gladiator, and left with him twenty-five cents, the fee to be paid for the porterage of said trunk, and that the said agent, in accordance with said request, did deliver to a porter the said trunk, with direction to carry the same to said steamer, and gave the porter the said fee therefor; and shall also find, that at the time when said trunk was delivered as aforesaid, to said porter, it had not been broken open, but that the contents mentioned in the schedule were in the same trunk, at the time it left the hotel, the said plaintiff is not entitled to recover, even although they may find, that the said trunk was subsequently broken open and the contents stolen, provided they further find, that said loss was not occasioned by any collusion or fraud on the part of the said defendant or his agents."

 [*136]  This instruction the court refused to give, to which refusal the defendant excepted, and this is the ground of his second bill of exceptions.
The jury gave a verdict in favor of the plaintiff for [**17]  $ 102.55, on which judgment was rendered, and the defendant appealed.
The defendant contends: "That the plaintiff having, on the morning of the 17th March 1855, given notice to the agent of the defendant of his intention to quit the inn, and also at the time of said notice, having paid his bill, his relation as a guest was destroyed; and that the defendant is not liable in this action for any loss that may have subsequently occurred."
It is also contended by the defendant: "That the plaintiff having declared specially against the defendant as an innkeeper, it was not competent for the court to instruct the jury, under the pleadings, that if they found a collateral undertaking on the part of the defendant, whereby he undertook to deliver the plaintiff's goods at a place without the inn, that the defendant was liable in this action upon such undertaking."
It will be seen, however, that, by this appeal, we are only called upon to revise the decisions of the court below, in granting the plaintiff's prayer and refusing that of the defendant. And neither of these prayers points or refers to the pleadings. Whether they were decided correctly or not, must, therefore, depend, not upon the [**18]  state of the pleadings, but upon the evidence to which they alone make reference. Dorsey vs. Dashiell, 1 Md. 198, and the cases therein referred to on the same subject.
From the testimony of the clerk, in connection with the rules of the house, it appears to have been the usage of the hotel to send the baggage of guests to steamboats or railroad cars by a particular porter, when there was such baggage to be sent. It is also in proof, that on the 17th of March, before 12 o'clock, M., the plaintiff paid his bill, which payment entitled him to the use of the room for the entire day; that he then informed the clerk he intended leaving, and requested the clerk to send his baggage, at 4 o'clock in the afternoon of the same day, to a particular steamer; and at the time of making this request, the plaintiff left twenty-five cents to pay 

 [*137]  for the porterage of the trunk. The further testimony of the clerk is, that at 4 o'clock on the 17th of March, the trunk was delivered to the porter usually employed for such purpose, with instructions to carry it to the steamer directed by the plaintiff, and 25 cents were paid to the porter. Some weeks afterwards the trunk [**19]  was found broken open and the contents stolen. When found it was at the office of the Norfolk boats in Baltimore, and there is no proof that it ever was at the steamer directed by the plaintiff.
With such proof before us, we cannot assent to the position that the defendant is not liable for any loss which occurred subsequently to the morning of the 17th of March, when the plaintiff gave notice of his intention to leave the inn, and paid his bill. For he was, in fact, entitled to the use of the room for the entire day, and his baggage was left behind, in the care of the clerk, he undertaking to send it to the steamer, at 4 o'clock in the afternoon.
In Dickinson vs. Winchester and another, 4 Cush. Rep. 114, it appears that the keeper of a public house, in the neighborhood of a railroad station, gave public notice that he would furnish a free conveyance, to and from the cars, to all passengers, with their baggage, traveling thereby, who should come to his house as guests, and for which purpose he employed the proprietors of certain carriages, to take all such passengers, free of charge to them, and to convey them and their baggage to his house. A traveller by the cars, to whom [**20]  this arrangement was known, having employed one of the carriages, thus provided, to take him and his baggage to such public house, it was held, that if his baggage was lost or stolen through a want of due care or skill on the part of the proprietor of the carriage, or his driver, the keeper of the house would be liable therefor in assumpsit or case.
The court thought it immaterial whether the defendants were to be charged as inn-keepers, who assumed the care of the guest and his baggage at the station, instead of waiting until he came to their own door or stable, or whether they were to be considered as common carriers of persons, and therefore responsible for passengers' baggage. In either case, 

 [*138]  the profit to be derived, by the inn-keeper, from the entertainment of the traveller, as a guest, was held to be the consideration for the undertaking, and that such consideration formed the basis of an implied promise.
It was argued in defence, that the proprietor of the carriage, whose driver lost the trunk, was carrying on a separate employment, and therefore he, and not the defendants, were responsible for the loss. But notwithstanding this argument, the defendants were [**21]  considered to be liable for the baggage lost or stolen through a want of due care or skill on the part of the proprietor of the carriage or his driver.
Under the peculiar circumstances of this case, we do not think that the liability of the defendant, for the baggage, as innkeeper, ceased when the trunk was delivered to the porter, but that the defendant continued to be responsible for any loss which resulted from the negligence or mistake of the clerk or porter.
The baggage was that of a guest, who, after paying his bill was entitled to the use of his room for the whole day. The agent of the landlord undertook to keep the trunk until 4 o'clock, and then send it to a particular steamer. And such an undertaking, it seems, was consistent with what a traveling guest had a perfect right to expect, in accordance with the rules and usage of the house
The conveniences and facilities held out to travellers, are matters which influence them in selecting hotels for their accommodation. And the profits which innkeepers derive from the entertainment of their guests, afford considerations for such undertakings as the one here alleged.
There was evidence tending to show, that instead of the [**22]  trunk having been taken to the steamer directed by the plaintiff, it was carried to the office of the Norfolk boats, and there broken open and its contents stolen; and if the jury believed it to be so, they might have inferred, that the loss was occasioned by the negligence or mistake of the clerk of the hotel, or of the porter. And for each of them, as his agent, the defendant is responsible.
Notwithstanding the views which have been expressed, we 

 [*139]  think the plaintiff's prayer should not have been granted. It fully authorized the jury to understand, that if they believed the matters presented for their consideration, to be true, the plaintiff was entitled to recover for the trunk, and the whole contents thereof. And that they did so understand, is shown by the amount of the verdict. The articles contained in the trunk, however, are not, all of them, such as can be properly considered the baggage of a traveller; and for those which are not such baggage, the defendant is not responsible.
In Pettigrew vs. Barnum, et al., 11 Md. 434, 449, 450, the liability of an innkeeper for a traveller's baggage, was under consideration. And the court then said:  [**23]  "We do not think the term embraces merchandize or other valuables not designed for use, or personal convenience on the journey. It is not within the implied contract of the landlord, that he will be responsible for all goods which may be brought to his house, merely because they happen to be in a trunk." It is also said: "In the present case, we find that the trunk contained silver knives, forks and spoons. For them the appellees were not responsible. If a party may recover for these, why may he not for many dozens of the same articles, or for any description and amount of plate."
According to the ruling in that case, there were articles in the trunk of the plaintiff, for which the defendant cannot be held responsible, the same not properly constituting parts of a traveller's baggage. These are the Colt's pistol and the silver tea spoons. And inasmuch as there is no proof that the plaintiff was either a physician, a surgeon, or a student of medicine, we do not think he could recover for the case of surgical instruments or the tonsil cutter.
The defendant's prayer was properly refused. If it had been granted, the plaintiff would have been excluded from any right to recover, if the [**24]  jury believed the matters therein set forth, unless they also believed, that the loss was occasioned by collusion or fraud, on the part of the defendant or his agent.
Conceding the matters stated in the prayer to be all true; and even conceding that the relation of guest ceased, when the plaintiff left the hotel, still it would have been erroneous 

 [*140]  to instruct the jury, that the plaintiff was not entitled to recover, unless they believed the loss was occasioned by collusion or fraud, on the part of the defendant or his agent.
It follows from what has been said, that the judgment must be reversed and a procedendo ordered.
Judgment reversed and procedendo awarded. 

186 of 196 DOCUMENTS 

CUMBERLAND DUGAN vs. CUMBERLAND DUGAN HOLLINS, AND OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

13 Md. 149; 1859 Md. LEXIS 19 

March 10, 1859, Decided 

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

The bill, in this case, was filed by the appellant against the appellees, on the 7th of July 1855.

The property in controversy in the case, is a certain house and lot in the city of Baltimore, and it is claimed by the appellant, under the twenty-fifth clause of the will of Cumberland Dugan, executed on the 5th of October 1832, and admitted to probate on the 4th of November 1836, and by the appellees under the twenty-eighth clause of the same will. The particular sections of this will having reference to this controversy, are the following:

"V. Item.--I give, devise and bequeath to my said wife, Margaret Dugan, for and during her natural life, all those four three story houses, adjoining each other, situate at and on the south-west corner of Market Space, often called Cumberland Row, and Water Street; the one on the corner fronting about twenty-five feet on the space or row, and the other three fronting on the south side of Water street.

"XVI. Item.--I give, devise and bequeath to my son, Hammond Dugan, his heirs and assigns, the three-story brick house and lot, situate on Market Space, commonly called Cumberland Row,  [**2]  it being the second house in said row, that is, the reversion of the same after the death of his mother.

"XXIV. Item.--I also devise to my said son, Frederick James Dugan, the reversion in fee-simple, after the death of my wife, who is to enjoy the rents, issues and profits of the same during her natural life, the house and lot designated by the number four, (No. 4,) situate on Market Space, on the west side thereof, and on the north side, and adjoining the property of the late Robert Stewart, the same being about twenty-five feet front by about sixty-five feet deep, and which is now occupied by Samuel Bickley, which said several pieces of property I devise to my said son, with my blessings and best wishes for his prosperity and happiness.

"XXV. Item.--I give, devise and bequeath to my said son, Frederick James Dugan, his heirs and assigns, in trust for the uses hereinafter mentioned, the following property, that is to say, my three-story brick house and the lot, situate on Market Space, or Cumberland Row, after the death of his mother, the same being the third house in said row, from the corner south of Water street, and on the south side of the house devised to his brother [**3]  Hammond, the same lot being about twenty-five feet front and sixty-five feet deep; in trust for the use of Cumberland Dugan, the eldest son of the said Frederick James Dugan, to be conveyed to the said Cumberland Dugan, in fee-simple, on his attaining the age of twenty-one years. But during the period that shall elapse between the decease of my wife, and the arrival at said age of the said Cumberland Dugan, it is my will that my said son, Frederick James Dugan, his executors, administrators or assigns, shall take and receive, all and singular, the rents, issues and profits of the said house, and lot, to his own absolute use, and if my said grandson should die before he attains the age of twenty-one years, I then devise the said house and lot, with all the intervening profits, if any, to my said son Frederick James Dugan, forever.

"X XVIII. Item.--I give, devise and bequeath to my friend Isaac McKim, his heirs and assigns, the following property, in trust for my grand-children hereafter named, as follows, that is to say, my three-story brick house and the lot on the west side of Market Space, or Cumberland Row, in the city of Baltimore, situate about thirty feet north of Pratt [**4]  street, and between Baltzer Scheffer's and George Kaylor's lots, it being a front of about twenty-seven feet on the said row, and extending westwardly for depth about sixty-five feet. And also the lot of ground in the rear of said lot, purchased by me from the late John O'Donnell. And also one other three-story brick house and the lot, on the said row or space, adjoining the property hereinbefore devised to my son Frederick, the said lot being about twenty-five feet front and sixty-five feet deep; which several three pieces of property, I hereby devise to the use of my two grandsons, namely, Cumberland Dugan Hollins, son of my daughter Cordelia Margaret, and Cumberland Dugan Hollins, the son of my daughter Rebecca, their heirs and assigns, as tenants in common; to be conveyed to them by my said trustee when they respectively attain the age of twenty-one years; and in the mean time, in trust, to pay over the rents, issues and profits of the same, to my wife, during the term of her natural life, if she should live so long, and on the event of her death, before my said grand-children attain to the age of twenty-one years, respectively, then to pay over the rents, issues and profits thereof [**5]  to my daughters Rebecca Hollins and Cordelia Margaret Hollins, equally. And in further trust to convey the same in fee-simple, should my said grandsons or either of them die before the said age of twenty-one, that is, one moiety to the use of my daughter Cordelia Margaret, in fee, if her said son should die before he attains to the said age, and the other moiety to the use of my daughter Rebecca, if her said son should die before he attains to the said age."

The last and residuary clause is as follows:

"XXXII. Lastly.--All my lands in Baltimore county, or elsewhere, all my bank, road, insurance or other stocks, (except my Baltimore and Ohio Rail Road stock,) all my notes, bonds, mortgages, accounts or other evidences of debts or claims, belonging to me, also my wharf, commonly called 'Dugan's wharf,' extending from the south side of Dugan's street, and running north to Pratt street, also one-half of my said wharf at the head of Pratt street, with all and singular my claims, rights and demands, for damages appertaining to the same; also the reversion of the ten annual ground rents on Dugan's wharf, of about nine hundred dollars per annum, after the death of my wife; also all [**6]  the grounds out of which the said rents issue; also all the rest, residue and remainder, of my estate, real, personal and mixed, I give, devise and bequeath to my four children, namely, Rebecca Hollins, Cordelia Margaret Hollins, Hammond Dugan and Frederick James Dugan, in the manner following, that is to say: one fourth of the said residue I devise to my said trustee, Isaac McKim, his heirs and assigns, in trust, for the sole and separate use of my daughter Rebecca Hollins; one-fourth to my said trustee, in fee, for the use of my daughter Cordelia Margaret Hollins, the said two parts to be subject to the same limitations, uses and trusts, as are heretofore declared in respect to the other property devised to my said trustee, in trust, for my said daughters; and the remaining half of the said residue of my estate I devise to my sons Hammond Dugan and Frederick James Dugan, to them forever, to be equally divided, share and share alike. And finally, I declare this to be my last will and testament, fully expressing my wishes, without respect to any promises I may at any time have made, and without regard to any expectations that I may in any manner have created. And I do hereby constitute [**7]  and appoint my beloved wife Margaret Dugan, executrix, my sons Hammond Dugan and Frederick James Dugan, and William McKim, who intermarried with my grand-daughter Margaret Hollins, executors of this my last will and testament."

The complainant is the son of Frederick James Dugan, mentioned in the 25th clause of this will, and was born on the 27th of January 1830, and by his bill claims a conveyance of the property under that clause. The testator's widow, Margaret Dugan, died on the 18th of June 1852.

The defendants, Cumberland Dugan Hollins of Rebecca, and Cumberland Dugan Hollins of Cordelia, mentioned in the 28th clause of the will, oppose the relief prayed, and in their answers aver, that, in 1844, Daniel Coonan was in possession of the house and lot in dispute, as tenant, and a claim thereto having been set up for the complainant, under the said 25th clause, by Frederick James Dugan, his father and trustee, these defendants, in that year, brought an action of assumpsit in Baltimore county court, against Coonan, for a quarter's rent, which suit was docketed by consent, and was defended for the purpose of trying the title to said house and lot, by said Frederick James Dugan,  [**8]  trustee as aforesaid, through his counsel; that the case was, by appeal, brought to the Court of Appeals, and that court, after argument and full consideration, decided, that the said two clauses of this will operated upon the same property, and that the 28th clause abrogated the 25th clause, under which the complainant claims, and the defendants rely upon that suit and judgment as a conclusive bar to the complainant's claim.

The case of Hollins vs. Coonan, referred to in the answers, is reported in 9 Gill 62, and in that case there was an admission, by which "it was admitted by the parties, that this suit was instituted for the purpose of trying the title to the house and lot in the possession of the defendant, as tenant of the testator," which house and lot are then described, and are the same as those claimed by the complainant in the present suit.

Coonan testified, that he has occupied the property in question, as tenant, ever since the year 1839 or 1840, that he is the person against whom said suit was brought for a quarter's rent thereof; that he was always in the habit of paying his rent punctually, but this rent was not paid because he got notice not to pay it--he [**9]  thinks from Mr. Scott--but witness did not employ Mr. Scott to defend the suit, and did not pay him any fees to do so; that the rent during the pendency of the suit was paid to Messrs. Campbell and Scott, counsel for the respective parties, in the above mentioned case of Hollins vs. Coonan.

By an agreement of counsel it was admitted, that the rent which accrued during the pendency of said suit, was paid to the respective counsel of the parties in that case, to await the decision of the case, and, after its termination, the whole amount was paid over to the plaintiffs in the action.

The case having been submitted for a decree, without argument, the court (KREBS, J.) passed a decree dismissing the bill, stating, that "it appears that the question in dispute has already been decided by the Court of Appeals, whereby the clause of the will, under which the complainant claims, was held to be abrogated by a subsequent clause therein." From this decree the complainant appealed.  

DISPOSITION:
Decree affirmed.  

HEADNOTES:

Where the Court of Appeals in a former decision has construed a will, in reference to the title to certain property, and the same will in reference to the same property, is brought up for construction upon the same questions, in another suit, the former decision will be adhered to, whether the judgment be technically an estoppel or not, unless there is manifest error therein.  

COUNSEL:
A. W. Machen and John Nelson for the appellant:

1st. The judgment in Hollins vs. Coonan, is clearly not an estoppel. Frederick James Dugan was not the trustee for this complainant,  [**10]  for the purpose of protecting the property, but the mere conduit through which the title was to pass, provided the complainant attained the age of twenty-one, and, under this 25th clause of the will, he had himself an interest in the rents and profits of the property. The former suit was an action of assumpsit for rent, while this is a suit for the inheritance. There is, therefore, neither identity of subject matter nor of parties. Estoppels are construed strictly, and there is no ground of authority or reason for saying, that the appellant is bound by a decision of a question not in issue on the record, in an action to which he was not a party, and involving a subject matter in which he had no manner of interest. The rents for which the former suit was brought, belonged to Mrs. Dugan, and by a further express provision of the will, no part of them were, in any event, to enure to the complainant's own benefit, until he had attained the age of twenty-one years. The former suit then cannot be regarded as an estoppel. 4 G. & J. 345, Shafer vs. Stonebraker. 15 New Hamp., 9, King vs. Chase. 3 East., 366, Outram vs. Morewood. 12 Md. 550, Beall vs. Pearre, Adm'r of Brown.

2nd.  [**11]  As a judicial construction of the will, the opinion of the court in the former suit, though entitled to great respect, cannot be conclusive as against the appellant; for that would be to make an estoppel by indirection, when in law there is no estoppel. The circumstances under which the opinion in Hollins vs. Coonan was delivered, especially as it was the opinion of but three judges out of the five who decided the case, and the other judge who decided the case below, differed in opinion with the three who pronounced that opinion, take away much from its authority. It is always a matter of discretion for the court to say, whether they will or will not abide by a former decision. The former Court of Appeals, in Kettlewell vs. Stewart, 8 Gill 472, reversed their own previous decision in Albert & wife, vs. Winn & Ross, 7 Gill 446, upon the important subject, of the validity of assignments for the benefit of creditors exacting releases. The fact, that in this case an important principle of law is involved, and the expediency of reconsidering an arbitrary rule of construction, which, as long as it is suffered to stand, must defeat intention in a vast majority of cases, affords sufficient [**12]  ground, it is submitted, for regarding the question as still open. 3 How., 464, Lane vs. Vick.

3rd. As to the merits of the case. It is now well settled. 1st. That technical words are prima facie to be understood in their strict technical sense. 1 Phillip's Ch. Rep., 533, Morrall vs. Sutton. 2nd. That the whole will is to be reconciled if possible; for an intention in the testator to be consistent with himself, is always to be assumed as a cardinal point in construction. 1 Phillip's Ch. Rep., 537. 1 Jarman on Wills, 415. 3rd. Although where two provisions in a will are totally irreconcilable, so that they cannot possibly stand together, and there is nothing in the context or general scope of the will to lead to a different conclusion, the last shall prevail; yet if the same property is devised in separate parts of the will, to two different persons, this is not to be considered as a case of irreconcilable repugnancy, but the devisees shall take concurrently. Co. Litt., 21, a. note 4. 23 a. note 1. 112 b., note by Mr. Hargrave. 1 Jarman on Wills, 417, and authorities there cited. 2 Plowd., 541, note. Preston's Shep. Touch., 451, in 31 Law Lib., 318. 4 Greenlf. Cruise Tit., 32,  [**13]  ch. 12, sec. 26, note. Jenkins, 96, Case 86. 3 Atk., 493, Ridout vs. Pain. 23 Amer. Jurist, 277, 278, article by judge Metcalf. 13 Mass., 535, Shove vs. Dow. 7 Iredell's Eq. Rep., 265, 269, Baird vs. Baird. 1 Phillip's Ch. Rep., 537, 545, 546.

Applying these rules to the present case, it is insisted; first, that the devise in the 25th clause is not interfered with by the 28th clause, because 1st, the description in the 28th clause taken literally, does not cover the same property devised in the 25th clause, but expressly goes outside of it; 2nd. Falsa demonstratio non nocet; and if we simply reject from the descriptive part of the 28th clause, the words which refer to the property before devised, a good and sufficient description is left, and the devise can take effect without conflicting with any of the other provisions of the will. 2 De Gex, McNa. & Gor., 300, 313, Hart vs. Tulk, and same case in 19 Eng. Law & Eq. Rep., 438; 2 Hare, 355 to 372, Hilldersdon vs. Lowe; 7 G. & J. 227, 252, Creswell vs. Lawson; and secondly, that at all events the two trustees, Frederick James Dugan and Isaac McKim, took jointly, and that by consequence, the appellant is beneficially entitled [**14]  to one moiety of the property in question. The publication of a will gives effect uno flatu to the whole instrument, and the devise of property to A, and a subsequent devise in the same will of the same property to B, is not a case of repugnancy; the estate given in these two clauses is the same, and the parties have one and the same interest therein.

J. M. Campbell and Geo. Wm. Brown for the appellees:

1st. The suit of Hollins vs. Coonan, was brought by an agreement between the parties in interest, to wit, Cumberland D. Hollins of Cordelia, and Cumberland D. Hollins of Rebecca, and Frederick James Dugan, father and trustee of this complainant, and is conclusive, and an estoppel on all the parties to this suit, though for convenience, and by agreement, it was brought against Coonan, the tenant of the premises. The two suits are substantially between the same parties and those claiming under them. The former suit was defended by Mr. Scott, as counsel for the trustee, Frederick James Dugan, as his argument in the case clearly shows, and as the testimony of Coonan in the present case demonstrates. The trustee claimed the property, and it was an action to try the title thereto.  [**15]  The trustee was the only party who could come in and defend the title, and it was his duty to do so, and having done so, the judgment is binding upon those who are interested as cestuis que trust. 2 Story's Eq., sec. 1275. 2 Smith's Lead. Cases, 581 to 589. 4 G. & J. 414, Charlotte Hall School vs. Greenwell. 10 G. & J. 443, Matthews vs. Ward. 11 G. & J. 323, Moale vs. Buchanan. 12 Md. 550, Beall vs. Pearre, Adm'r of Brown.

2nd. But even if that suit is not technically an estoppel, it is still conclusive on all the parties in this case, being a decision after full argument and careful consideration, with all the facts before them, of the Court of Appeals, upon the same will and the same point now brought into question, upon the same facts. Even in a suit between entirely different parties on a different will, that decision would be entirely conclusive on the point presented, because it settles an important question of testamentary law, which has become the law not only for this case but for all similar cases subsequently arising. 4 Md. 138, 166, Hammond's Lessee vs. Inloes. 6 Md. 234, Mitchell vs. Mitchell's Lessee. 5 Md. 487, 489, Alexander vs. Worthington.  [**16]  5 H. & J. 278, Hammond vs. Ridgely. 1 Md. 13, Milburn vs. The State. 1 East., 541, Schumann vs. Weatherhead. 6 East., 512, Liverpool Water Works Co. vs. Atkinson.

3rd. But even if that case is not an estoppel, nor conclusive on the parties or on this court, and if its correctness should be still an open question, then the appellees insist, it should be reaffirmed by this court, as being in itself correct, and well founded on established principles of law applicable to the construction of wills. The rule as laid down by Lord Coke, in Co. Litt., 112, b., is, "that in one will, where there be divers devises of one thing, the last devise taketh place: cum duo inter se pugnantia reperiuntur in testamento, ultimum ratum est." See on this point also the following authorities: Plowd, 541. Lovelass on Wills, 293. 2 Bl. Com., 381. 4 Kent, 535, note. Cruise's Dig. Title Devise, ch. 9, secs. 3, 7. 1 Powell on Devises, in 21 Law Lib., 212. Parson's on The Law of Wills, 32. Dwarris on Statutes, 675. 2 Taunt., 109, Doe vs. Biggs. 1 Swanst., 163, Galland vs. Leonard. 2 Atk., 374, Ulrich vs. Litchfield. 5 Ves., 247, Sims vs. Doughty. 6 Ves., 100, Constantine vs. Constantine. 18 Ves., 421,  [**17]  Wykham vs. Wykham. 2 Mylne & Keene, 149, Sherrat vs. Bentley. 6 Pet., 84, Smith vs. Bell. 22 Maine, 430, Pickering vs. Langdon. 4 Mass., 215, Dawes vs. Swan. 2 Metcalf, 202, Homer vs. Shelton. 2 Paige, 122, Covenhoven vs. Shuler. 9 Paige, 107, Parks vs. Parks. 12 Wend., 602, 665, Bradstreet vs. Clarke. 2 Yeates, 525, Robinson vs. Martin. 3 Whart., 162, Lewis's Estate. 4 McCord, 151, Pullen vs. Pullen. 1 Hill Ch. Rep., 367, Fraser vs. Boone. 2 Stewart, 170, Moore vs. Dudley. 5 Ala., 143, Stallsworth vs. Stallsworth. 3 Monroe, 279, Adie vs. Cornwell.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*158]  ECCLESTON, J., delivered the opinion of this court.
This bill was filed by Cumberland Dugan, on the 7th of July 1855, claiming a conveyance of a house and lot alleged to have been devised to him by his grand-father, Cumberland Dugan, senior, subject to a life-estate therein for Margaret Dugan the widow of the testator; she having died in June 1852. The property claimed is described, in the bill, as a lot of ground of about twenty-five feet front by sixty-five feet deep, situate on the west side of Market Space, in the city of Baltimore, with the [**18]  house thereon, the same being the third house and lot in Cumberland Row, counting southwardly from Water street, now Lombard street; and which by the twenty-fifth section or item of the will of the testator, was devised to 

 [*159]  be conveyed to the complainant, when he should attain the age of twenty-one years. The bill alleging him then to be of that age.
It is denied, that the complainant has any right to insist upon a conveyance of the property, or has any claim or title whatever to the house and lot. For it is contended that they were, by the 28th section of said will, (and subsequent to the 25th,) devised in trust for the use of the defendants, Cumberland Dugan Hollins, son of Cordelia, and Cumberland Dugan Hollins, son of Rebecca, to be conveyed to them when they should respectively attain the age of twenty-one years, by Isaac McKim, the trustee named in the will. But the said trustee having declined to act, the chancellor appointed in his place John Spear Smith, who, after the cestui que trusts became of age, executed to each of them a deed, for one undivided moiety of the said house and lot, in fee-simple.
The present defendants, Cumberland Dugan Hollins, son of [**19]  Cordelia, and Cumberland Dugan Hollins, son of Rebecca, were the plaintiffs in the suit against Coonan, reported in 9 Gill 62. That case, in form, was an action of assumpsit, to recover rent for the house now in dispute, but in reality was designed to obtain a decision upon the title to the property, under the will of Cumberland Dugan, senior. This is evident from the admission stated on page 66.
The case was decided upon the grounds, that the 25th and 28th sections of the will should be construed as operating upon the same property; that the 28th clause operated as an abrogation of the 25th clause, and therefore, the property in dispute was devised to the plaintiffs by the 28th clause or section.
It has been contended by the appellees' counsel, that the decision in 9 Gill must operate as an estoppel upon the claim of the complainant in this suit. It is said, that although the complainant was a minor pending that suit, yet, in point of fact, he was represented in the contest, through his trustee; that T. P. Scott, Esq., who, on the record appeared as counsel for Coonan, never was employed by him, but was employed by the said trustee. And, for the [**20]  purpose of showing this to 

 [*160]  be so, a printed argument of Mr. Scott, in that case, has been read, which commences thus: "In the argument which I had the honor to present orally to the court in this case, on behalf of Cumberland Dugan, of Frederick, (under the name of Daniel Coonan, the tenant of the property.")
As regards the effect or influence of the former decision upon the present case, it will be seen to be quite immaterial, whether it shall be considered as an estoppel, or as a decision by the court of last resort, giving an interpretation to the clauses in the will of Cumberland Dugan, Sen., in relation to the same property now in dispute, and where the same question arises, which was before decided.
The former judges all concurred in the opinion, that the 25th and 28th clauses of the will were to be considered as operating upon the same property. And in this conclusion we fully coincide.
Upon the question, whether the 28th clause should be regarded as abrogating the 25th, or whether the devisees mentioned in the two clauses should take concurrently, the members of the court were divided. Three of them held, that the 25th clause was abrogated by the 28th, and, therefore,  [**21]  the property in contest, was devised by the latter clause to the plaintiffs below. The two other judges decided, that the trustees named in the two clauses took concurrently, "each trustee taking a moiety of the property in dispute for his cestui que use."
The counsel for the present appellees insist, that the decision of the three judges was correct. But this is denied by the counsel for the appellant. They say:
"Although where two provisions of a will are totally irreconcilable, so that they cannot possibly stand together, and there is nothing in the context or general scope of the will to lead to a different conclusion, the last shall prevail; yet, if the same property is devised, in separate parts of the will, to two different persons, this is not to be considered as a case of irreconcilable repugnancy, but the devisees shall take concurrently."
In Co. Litt., 112, b., it is said by Littleton: "If a man at 

 [*161]  divers times, makes divers testaments, and divers devises, &c., yet the last devise and will made by him shall stand and the others are void." Commenting upon this Lord Coke says: "Here, by, &c., is to be understood as well devises of chattels real or [**22]  personal, as of freehold and inheritance; also, that in one will, where there be divers devises of one thing, the last devise taketh place. Cum duo inter se pugnantia reperiuntur in testamento, ultimum ratum est." In note 1, on this subject, upon the same folio, appear the following remarks: "There is a great contrariety in the books, on the effect of two inconsistent devises in the same will. Some hold with Lord Coke, that the second devise revokes the first. Plowd, 541.  3 Atk. 374. Others think, that both devises are void on account of the repugnancy. Ow., 84. But the opinion supported by the greatest number of authorities is, that the two devisees shall take in moieties. The authorities for and against Lord Coke's opinion, are well collected and arranged, in a note in the English edition of Plowden, 541."
It is undoubtedly true, that the correctness of the doctrine of Lord Coke, has been advocated by those, whose legal learning entitles them to great respect. It is equally true, however, that the opinion, stated in the above note, as having been sup ported by the greatest number of authorities, has been adopted by very distinguished names.
The [**23]  construction of wills is often attended with much difficulty, and perhaps there has rarely been more controversy or more conflict of authority, upon any subject, in relation to wills, or indeed in regard to any branch of the law, than that of which we have just been speaking.
The majority of the court decided, that the latter clause in the will abrogated the former. But the opinion does not state whether the decision was so made, simply because the two clauses gave the same property to different devisees, or, whether the court considered that the provisions in the will, rendered the two clauses so irreconcilably inconsistent as to prohibit the different devisees from taking concurrently, and, therefore, the last was a revocation of the first. The opinion merely 

 [*162]  announced, that the 25th clause was abrogated by the 28th, and thereby the property in dispute was devised to the plaintiffs.
On the part of the appellant it has been said, the former decision was not given under such circumstances as can make it an estoppel upon him. As evidence of what the law is in such a case, the decision is conceded to be entitled to great respect. It is contended, however, that we are [**24]  not prohibited from revising it, and if upon due consideration it is found to be erroneous, we not only may but ought to correct the error, by making a different decision in the present case.
In Hammond's Lessee, vs. Inloes, 4 Md. 138, the counsel for the appellants urged the propriety of revising and overruling the opinions of our predecessors, upon titles similar to those which were then under examination; but, after the most mature consideration, the former decisions were adhered to. And there it is said: "If, as a general rule, upon principles of judicial propriety, and in view of the importance of having the law fixed and certain, a court respects its own decisions even in analogous cases, there would seem to be more reason for adhering to them where the facts are the same, though between different parties." There, it is true, the court concede, that cases have occurred, and may again occur, in which they would feel themselves bound to withhold their assent to adjudged cases. But it is evident, from the whole scope of the opinion, that the assent should only be withheld where the former decisions were clearly erroneous.
Now, if in the case in 9 Gill [**25]  the majority of the court erred at all, it was certainly upon a very doubtful question, to say the least of it. And we are not prepared to say, we are fully convinced there was such manifest error in the decision as should require us to overrule it. The same property, the same will, and the same questions, arising upon similar facts, which were presented in the former case, are also before us in this. We therefore think the following quotation, from Hammond's Lessee vs. Inloes, will constitute a very appropriate conclusion for us: "We have not been able to discover a sufficient reason for making this an exception to the almost uninterrupted 

 [*163]  practice of all courts, of receiving their own decisions as of binding force."
The decree below will be affirmed without costs in this court.
Decree affirmed. 

187 of 196 DOCUMENTS 

J. S. GRIFFITH, and others, vs. JOHN BUCK.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

13 Md. 102; 1859 Md. LEXIS 15 

March 8, 1859, Decided 

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

This appeal is taken by the appellants, defendants below, from a decree passed upon a bill filed against them and Felix V. Durst, by the appellee. The allegations of the bill and answer, and the proceedings and testimony in the case, are sufficiently stated in the opinion of this court.

The decree appealed from, which was passed by the court below, (KREBS, J.,) on the 1st of September 1855, directs the property named in the proceedings, after paying the expenses and receiver's commissions, and costs of these proceedings, to be applied in the first place to or towards the payment of the sum of $ 500, advanced by the said Griffith, Michael & Brother, at the time of the execution of the bill of sale named in these proceedings, with interest from the time such advance was made, and then, that the surplus, if any, be applied to or towards the payment of the creditors of the firm of Durst and Buck. It is further ordered, that notice be given by the receiver to the creditors of said firm of Durst and Buck, to file their claims properly authenticated with the clerk of this court, on or before the first day of November next, preparatory [**2]  to a distribution of assets, by publication in some one of the daily papers of the city of Baltimore, once a week for four successive weeks.  

DISPOSITION:
Reversed in part, and a decree accordingly.  

HEADNOTES:

An agreement between a retiring and a continuing partner, made upon dissolution, that the former should be released from the concern, is equivalent to a promise by the latter to pay the debts of the firm.

In case of a voluntary dissolution, the partnership effects may be legally transferred bona fide for a valuable consideration, either to one or more of the partners or to strangers, and though the consideration, in whole or in part, of such transfer, may be that the partners taking the property shall pay all or a particular part of the debts of the firm, this will not aid the creditors.

Where, upon a voluntary dissolution, one partner bona fide assigns the partnership property for a valuable consideration, which includes a covenant or promise by the partner taking the assignment to pay the debts of the firm, or that the retiring partner shall be released from his liabilities for the partnership, he has not, by virtue of such covenant or agreement, any lien on the assigned property for the discharge of those debts.  

COUNSEL:
Thomas S. Alexander for the appellants:

1st. The assignment by Durst to the appellants, being made with full notice to Buck, and for satisfaction of a debt due them by Durst and Buck, was valid as against Buck, especially as the transaction was free from all imputation of fraud, and the consideration paid is not shown or averred to be inadequate. The appellants, therefore, are bona fide purchasers for a valuable consideration, paid before or at the time the bill of sale to them was executed, of all the interest which Durst could sell in this property.

2nd. Durst, as settling partner, under an agreement for dissolution, simply at the risk and for account of both partners, had the right to sell the whole or any part of the joint stock, in satisfaction of any debt or debts due by the partnership.

3rd. There is no proof of notice to the appellants, of the alleged terms of dissolution, that Durst was to indemnify Buck against the debts of the firm, or of the existence of any such debts.  [**3]  But if it is assumed that the agreement for dissolution was, as is represented, and that the appellants had notice thereof, and of the existence of other partnership debts, it is still insisted, that under such agreement, Durst became absolute owner of the goods as against Buck, and could rightfully sell, and the appellants, as creditors of Durst and Buck, could rightfully purchase the stock or any part of the stock, in satisfaction of the debts due from the partnership to the appellants. It is well settled, that one partner may assign his interest in the partnership effects, either to a third party or to his co-partner, provided he does it in good faith, and where, upon dissolution, he makes such an assignment to a settling partner, with the agreement, that such partner shall pay the debts of the firm or release him from the concern, such agreement cannot have the effect of continuing his lien upon the assigned partnership funds for the payment of partnership debts. Story on Part., secs. 358, 359. 2 Md. 16, Glenn vs. Gill. The cases cited by the learned Judge of the court below, in his opinion, of Robb vs. Stevens, 1 Clarke, 192, and Deveau vs. Fowler, 2 Paige, 400, do not bear [**4]  out the position which they were cited to sustain.

4th. It is not shown there were any other debts due by Durst and Buck, nor is it shown or alleged that the appellants are insolvent, or in doubtful circumstances. It is conceded the appellants were entitled to an assignment, if not absolute, at the least as a security for payment of their note for $ 500, and any other debt due them from Durst and Buck. No injury could have resulted to the appellee if the bill had not been filed. The appellants were partnership creditors to the amount of $ 2000. The partnership funds have been applied to the partnership debts, and it matters not to Buck whether he is left in debt to the appellants or to other partnership creditors, if any such there are.

The appellee had, therefore, no equity to an injunction or receiver, or in any manner to disturb the appellants in the enjoyment or disposition of the property assigned to them. If he had any remedy whatever, it was to an account or order to enforce the application of any surplus proceeds or assets, which might remain in hand after satisfaction of the claims of the appellants against the same.

Orville Horwitz for the appellee, argued:  [**5]  

1st. That the bill of sale is defective and invalid, for want of a sufficient affidavit, under the act of 1846, ch. 271.

2nd. That the consideration named in the bill of sale has never been paid, as thereby agreed, and that until such payment, the grantees had no right to interfere with the effects transferred by that instrument.

3rd. That the appellants perpetrated a fraud on Buck, by concealing from him, at the time of the formation of the partnership between him and Durst, facts within their knowledge which they should have disclosed, and the concealment of which facts extinguishes all their claims against the effects of Durst and Buck. The contract of partnership was drawn by Michael, one of the appellants, and attested by him. It provides that Buck shall be a co-partner, four or five months before he went into the concern. At this time the indebtedness of Durst and Appler to the appellants existed, and not one word was said about this debt, and Buck is made to pay one-half of the entire value of the stock, upon which there was this heavy lien, which would have swamped the whole concern, but about which nothing whatever was said.

4th. That the effects in the [**6]  hands of Durst, were not responsible for the debts of Durst and Appler.

5th. That the debts of Durst and Buck, are a lien on the effects of that firm, by virtue of the agreement of dissolution, and that this agreement was known to the appellants; (Story on Part., secs. 372, 373; 1 Clarke, 195, Robb, et al., vs. Stevens; 2 Paige, 400, Deveau vs. Fowler;) and that the appellee had a right, therefore, to interfere, by a bill for an injunction. 10 Md. 466, Rose vs. Bevan.

6th. That Durst had no power to assign these effects for the payment of a debt of Durst and Appler, or to apply the same to the payment of any debt due by Durst and Appler or Durst, until after the payment of the debts of Durst and Buck.

7th. That it is shown by the proof and admissions in the case, that other debts are due by Durst and Buck, and that the only effect of the decree is, to apply the proceeds of the funds to the payment of other debts, after satisfaction of the appellants' claim.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*106]  ECCLESTON, J., delivered the opinion of this court.
From the bill and other proceedings in this cause,  [**7]  it appears that the defendant, Felix V. Durst, was at one time a member of the firm of Durst & Appler, carrying on the business of paper hangers in Baltimore. That firm was dissolved, by mutual consent, on the 13th of May 1854, Appler retiring from, and Durst retaining, the concern, he being solely and only authorized to settle the affairs of the firm. On the same day, Durst and John Edward Buck, the complainant, entered into articles of co-partnership; the business to be carried on in the same warehouse or store, which had been occupied by the preceding firm. Among other things it was agreed, that this second co-partnership should commence and continue from the previous 28th of January 1854. The stock, good will and fixtures, being valued at the sum of $ 2607.09, the said Buck agreed to pay Durst $ 1303.54 1/2, for one-half interest in the said concern; $ 1000 of said sum to be paid in cash, and a note for the balance, payable in four weeks, to be given. The bill alleges, that Buck paid $ 818, in part of the $ 1000, and Durst admits the same.
On the 30th of August 1854, Durst and Buck each, signed a written agreement, dissolving their co-partnership by mutual consent.
On the 1st [**8]  day of September, in the same year, Buck executed the following instrument, to wit:
"For and in consideration of five hundred dollars paid me, 

 [*107]  I have on this first day of September, eighteen hundred and fifty-four, sold to Felix V. Durst, all my interest and claim in the concern of Durst & Buck, doing business at the store No. 110, West Baltimore street.
(Seal.)   J. E. BUCK."
"Witness--J. H. Vogt."
Upon the same first day of September, Durst executed a bill of sale in favor of G. S. Griffith, Michael & Bro., which firm consists of the defendants, Goldsborough S. Griffith, Henry Michael and Alexander Michael. The consideration stated is $ 2579.25, and the instrument on its face is an absolute bill of sale for all F. V. Durst's "right, claim and interest, in and to the stock of paper hangings, upholstering goods, window shades, venetian and various other kinds of blinds, and every article manufactured, or materials for manufacturing, all books of accounts, debts and notes due him, or the firm of Durst & Buck, also including all fixtures, tools, &c., contained in store, cellar and brick shop, of warehouse No. 110, Baltimore street."
Upon the dissolution, Buck [**9]  withdrew and Durst remained. The day after the date of the bill of sale, the grantees named therein, took possession of the store and goods, &c. On the fourteenth of the same month, the complainant filed this bill, in which it is alleged, that the terms of the dissolution between Durst and Buck, provided that the former was to pay the latter or secure to him the sum of $ 818, brought by him into the concern, and the further sum of $ 200, for his profits, and that Durst should pay all the debts which had been contracted by said firm, out of the stock of goods on hand and debts due to the firm, and take the said stock and debts for said purpose, and for his part of the partnership effects. That for the purpose of carrying out this agreement of dissolution, Durst obtained the note of G. S. Griffith, Michael & Bro., for $ 500; and passed the same to Buck, payable six months after date, which note was obtained on the 1st of September 1854, in addition to which Buck also received from Durst his two promissory notes, one for $ 150, and the other for $ 250, payable at 30 days and four months respectively, he agreeing to pay Buck the further sum of one hundred dollars in cash. The bill also [**10]  

 [*108]  alleges, that immediately after passing the note for $ 500, G. S. Griffith proposed that Durst should secure him against loss by reason of giving the note, by executing a mortgage upon the said stock of goods. But desiring to carry out his contract of dissolution with Buck, (with the terms of which contract Griffith was fully acquainted at the time of making the same,) Durst represented to Griffith, that the said stock of goods was responsible for the debts of the firm, and that he could not therefore encumber the same; that Griffith thereupon stated to Durst, that he should go ahead with the business, and that he, Griffith, would see that the said debts were paid, and thereupon Durst agreed to execute a mortgage; that he procured a mortgage bill of sale to be prepared, and presented it to Griffith, who objected to it because there was an error in the names, and he then undertook to have an instrument properly prepared; which when written was presented to Durst, to be executed by him, and without reading it he did execute the same, supposing it to be a mortgage, and did not know to the contrary until the next day, when he discovered it to be an absolute bill of sale.  [**11]  
The bill alleges, that this instrument was fraudulent as well against Durst as against Buck.
The prayer of the bill is, that J. S. Griffith, H. Michael and A. Michael, shall be restrained by injunction from selling, disposing of, or in any way interfering with the said stock of goods, or from collecting the debts due the firm of Durst & Buck; that a receiver should be appointed to take charge of the same; that a decree should be passed setting aside the said bill of sale; and that such further and other relief might be granted as the court might deem proper.
An injunction was issued and a receiver appointed, the same day on which the bill was filed.
After the answers came in, a commission issued, and considerable testimony was taken under it.
The proof admits of no doubt, that the promissory note for $ 500, given by G. S. Griffith, Michael & Bro., and passed by Durst to Buck, constituted part of the consideration mentioned in the bill of sale. There is also strong evidence on 

 [*109]  the part of the grantees in said instrument, that the remaining portion of the consideration, consisted of an account due to them which Durst examined and said was correct, much the larger part [**12]  thereof being due by Durst and Buck. We believe from the evidence, that Durst knew the contents of the bill of sale before it was executed; that Buck was acquainted with the whole arrangement; that after its completion he was satisfied with it, and that whilst it was in progress, both Durst and Buck were anxious to have it carried into effect.
We do not consider it necessary to make a more minute examination of the evidence, in reference to the bona fides or the validity of the bill of sale. There is no appeal on the part of the complainant, and we agree to the correctness of that portion of the opinion of the judge below, in which he says: "The bill filed in this case, seeks relief upon the ground, that this bill of sale was not intended or understood by the said Durst to be an absolute bill of sale, but only an assignment by way of mortgage. I do not think that the evidence sustains this position, and cannot therefore grant any relief on this ground." After this the judge says, "relief is also sought upon the ground, that the complainant Buck, is entitled to have the debts due by the firm of Durst & Buck, paid out of the partnership effects of that firm, transferred as aforesaid [**13]  to said Griffith, Michael & Brother. I have no doubt, from what this case discloses, that it was the intention and agreement of the parties, that the note for $ 500, loaned by Griffith, Michael & Brother to Durst, to enable him to pay in part, to Buck, the consideration that he Durst had promised to pay Buck, upon the dissolution of their partnership, for his interest in the effects of the firm, should be secured by a transfer, of some kind, of the partnership property of that firm, taken by Durst under the terms of the dissolution, and I am of opinion that these effects should be applied to that purpose." And the balance of these effects, the judge holds, are to be applied to the payment of the debts due from the firm of Durst & Buck. And a decree was passed in accordance with these views.
It will be seen, that neither the opinion nor the decree impugns 

 [*110]  the bona fides of the transfer of Buck's interest in the effects of the firm to his partner Durst. On the contrary, the validity of the transfer is conceded, when those effects are made applicable, in the first place, to the payment of the note of $ 500, with interest. Which application is likewise a recognition of [**14]  the validity of the bill of sale, qualified, however, as to the extent of its operation as a transfer or conveyance of the property included therein, by what the court considered to be a lien of Buck upon the same, for the payment of the debts of Durst & Buck, under and by virtue of the terms of dissolution and sale by Buck to Durst.
No part of this decree can be objected to by the complainant, he not having appealed. The defendants, G. S. Griffith, Henry and Alexander Michael, are the only appellants; and they, of course, do not object to any portion of the ruling of the court, which is consistent with their own views. They do, however, object to the granting of an injunction, the appointment of a receiver, and to that portion of the decree which directs any part of the proceeds of the property mentioned in the proceedings, shall be distributed among or applied toward the payment of the creditors of the firm of Durst & Buck.
In this state of the case, it becomes necessary to ascertain whether, according to the terms of the dissolution between Durst and Buck, and the sale or transfer of the interest of the latter, in the joint effects, to the former, the latter retained a lien, or [**15]  quasi lien, upon the partnership property or effects, for the payment of the joint debts of the firm.
The judge thought that such a lien was retained by Buck; that G. S. Griffith, Michael & Brother knew it; that they also knew the debts of Durst & Buck were not paid; and that Durst took the effects of the concern, under an arrangement to pay the debts of the firm; and the grantees in the bill of sale having taken these effects, with such knowledge, they were, with regard to them, in no better condition than Durst was before he gave the bill of sale. And after considering the debts of Durst & Buck, as liens upon these effects, in the hands of Durst, prior to the execution of the bill of sale, the 

 [*111]  judge then says, these debts "are equally, under the circumstances of this case, a lien upon them in the hands of Griffith, Michael & Brother."
After stating what, according to the terms of the dissolution, was to be paid to Buck by Durst, the bill says, that he agreed "to pay all the debts which had been contracted by the firm of Durst & Buck, out of the stock of goods on hand, and debts due the firm, and take the said stock and debts for said purpose, and for his part of [**16]  the partnership effects."
G. S. Griffith, H. Michael and A. Michael, in their answer, "deny that it was ever intimated to them, that the stock proposed to be sold, was responsible for the debts of said Durst & Buck, and that said Durst could not encumber it." They also aver that they solemnly repudiated all responsibility for the debts and engagements of said firm; that Buck presented to them a paper, to be executed by them, purporting to bind them for said debts, but they utterly and wholly declined to have any thing to do with it.
Durst filed his answer as a defendant. He was likewise examined as a witness, under an order of the court allowing his examination.
The only evidence which professes to state the particular terms of the agreement, by which Durst became bound to discharge or pay the debts of Durst & Buck, is derived from Durst and J. H. Vogt. Seeing, however, that the statements made by Durst, in regard to several matters relating to this case, have been so flatly contradicted by other witnesses, and in some respects, are so unreasonable and improbable, we cannot place confidence in his evidence or statement on the present subject. We must therefore rely, mainly, [**17]  upon the evidence given by Vogt.
This witness wrote the bill of sale which was executed. His testimony is, that after preparing the instrument, he read it to Durst, who was anxious to have it executed, and he examined it himself, in his own hands. Witness exhibited to Durst an account of his indebtedness, which is the same amount as mentioned in the bill of sale. Durst also looked over the books. Buck was not present. "Witness was present 

 [*112]  upon one occasion, when Mr. Griffith, Mr. Buck, the Messrs. Michael and Mr. Durst, were present, when it was stated, that Mr. Griffith was to give Durst a note for $ 500, in order to purchase Buck's interest, and that Buck was to be released from the concern by Durst. Don't remember whether any thing was said about bill of sale at this time. The bill of sale was prepared half an hour after this conversation. At another interview Mr. Buck came in with a paper in his hand. The contents of the paper, as stated by Buck, were, that Mr. Griffith was to assume the debts of the firm; Mr. Griffith refused to agree to this, and said that he had enough to do to pay his own debts, without paying those of other people. Mr. Buck wished to withdraw [**18]  from the firm, wanted Mr. Griffith or the firm to buy him out. Mr. Buck frequently came up, but don't recollect what happened at the interviews."
Upon cross-examination, Vogt says: "At the conversation above alluded to, as having taken place half an hour before the execution of the bill of sale, and at which Messrs. Griffith, Buck, Durst and Michael, were present, it was understood that Mr. Buck was to receive Griffith's note for $ 500, from Durst, and he (Durst,) was to get it from Griffith. Buck was to be released out of the concern by Griffith, Michael and Brother. He was to be released of his share, was to withdraw out of the concern entirely, and Durst was to have the concern altogether. Buck by the paper before mentioned, wanted Griffith to assume the liabilities of the firm, which Griffith refused to do."
Whilst considering the question as to the continuance of Buck's lien after the dissolution, the judge below does not once refer to the evidence of Durst, but relies upon that of Vogt; which he holds quite sufficient to establish, not only the continued existence of the lien upon the effects of the firm, but that G. S. Griffith, Michael & Brother, knew of its existence when [**19]  they took the bill of sale.
We do not understand the judge as holding that the evidence proves an agreement, which, in express terms, provided that Durst should pay the debts out of the effects of the firm, or that there should be a lien upon those effects for the payment 

 [*113]  of those debts; but that the proof shows an agreement, that Durst should pay the debts, or that Buck should be released from the concern by Durst; and that such an agreement created or rather continued Buck's lien upon the former partnership effects.
The opinion of the judge states, that "an assignment from one partner of all his interest in the partnership property, is valid and takes effect, provided it is made bona fide, and the consideration on which it is made is performed." After this it is said: "When the partner, upon a dissolution of the firm, taking such assignment, agrees to pay as a consideration therefor, the debts of the firm, the assigning partner has a lien on the effects until they are paid." And in support of this latter position, reference is made to Robb & others, vs. Stevens & others, 1 Clarke 195, and Deveau vs. Fowler, 2 Paige 400. [**20]  Immediately following the statement of this principle, the opinion proceeds thus, "Buck then, notwithstanding the assignment, retained an equitable lien upon these partnership effects, to secure the payment of the debts due by Durst & Buck. This lien, of course, would not avail against a bona fide purchaser without notice of such an agreement, or who did not purchase under circumstances that should have put him on the inquiry." The grantees in the bill of sale are held to have notice, and that they therefore took the effects subject to the lien of Buck.
Although, according to the legal principle as above stated, a promise to pay the debts, by the partner taking the assignment, will preserve or continue the lien of the retiring partner, still the judge lays much stress upon the evidence, which he thinks proves that Buck was to be released out of the concern.
Admitting the agreement was, that Buck should be released out of or from the concern, can such an agreement have the effect to preserve a lien in favor of the retiring partner?
In Dorsey vs. Dashiell, 1 Md. 198, this court had occasion to construe a covenant, in which, Dorsey covenanted and agreed that [**21]  he would release Dashiell, his heirs and assigns, of and from all, and all manner of debts, liabilities and responsibilities, of the partnership concern. And this was a 

 [*114]  covenant between a remaining and a retiring partner. There the court say: "In truth, an engagement to release, in such a case as this, is in effect a promise to pay; for it is only by paying, or what is equivalent to it, by satisfying the creditors for their claims, that the covenantor could release according to his contract." So in the present case Durst could not, nor could any one else except the creditors, release Buck in any other way than by paying the debts of the firm. Giving him a lien upon the partnership effects would not release him; for he would still be responsible. We therefore do not perceive, why an agreement, that Buck should be released from or out of the concern, should have more effect in retaining his lien upon the partnership effects, than a promise or agreement by Durst to pay the debts, would have.
Believing that, in relation to continuing the lien of a retiring partner, after the assignment of the partnership effects, there is no material difference between the effect of a [**22]  promise to release him, and that of a promise to pay the debts of the firm, we will now inquire, what is the effect of the latter promise.
According to the decision below, it secures to the retiring partner a lien upon the effects of the firm, until its debts are paid. If, when critically examined, the two New York cases can be considered as fully sustaining the doctrine for which they have been cited, we respectfully decline yielding our assent to their correctness.
In our opinion, it has been held, by good authority, that in cases of voluntary dissolution the partnership effects may be legally transferred, bona fide, for a valuable consideration, either to one or more of the partners, or to strangers. Glenn vs. Gill 2 Md. 1. And although the whole, or part of the consideration of the transfer, may be, that the partners, taking the property, shall pay the whole, or a particular part of the debts of the partnership, that will not aid the creditors. And the reason assigned why it will not, is, that in such a case, the retiring partner, who so transfers his share, has no lien on the property for the discharge of those debts; for by his voluntary transfer of [**23]  the same, he has parted with it, and 

 [*115]  trusted to the personal security and personal contract of the other partners. Story on Part., secs. 358 359, the notes and authorities there cited. Ex-parte Ruffin, 6 Ves. 119, 126, 127. Ex-parte Fell, 10 Ves. 347. Ex-parte Williams, 11 Ves. 3, 5 to 8. Gow on Part., ch. 5, sec. 2. Collyer on Part., B. 4, ch. 2, particularly sections 894, 895, pages 790 to 792, (Ed. of 1853.) See, also, as to the bona fides of an assignment, Collyer on Part., Book 4, ch. 2, secs. 902 and 903, page 798.
In Ex-parte Ruffin, Ex-parte Fell, and Ex-parte Williams, partnership effects were transferred by a retiring to a remaining partner; the latter having covenanted or contracted, in two of the cases, to pay the partnership debts, and to indemnify the retiring partner against them; and in the third case, the contract was, that the debts should be paid and discharged by the remaining partner. It was held in each case, that the property became the separate property of the partner taking the transfer, and that there was no lien upon the same,  [**24]  for the payment of the debts in favor of the retiring partner.
In Ex-parte Ruffin, Lord Eldon said: "The assignment was not made subject to the payment of the debts, but in consideration of a covenant, leaving no duty upon the property, but attaching a personal obligation upon the assignee to pay the debts.
In Ex-parte Fell, the retiring partner petitioned to have the specific stock and debts of the old partnership applied in satisfaction of the creditors of that partnership, in preference to the creditors of the new firm. Expressly, upon the authority of Ex-parte Ruffin and Ex-parte Snow, the petition was dismissed. The decision, therefore, was, that the property passed by the transfer, without being subject to any lien of the assigning partner, for the payment of the old firm's debts. In conclusion, the Lord Chancellor says: "It will be very easy to avoid this, upon the retirement of a partner, by assigning all the effects upon trust to pay the debts."
After a patient examination of the authorities, we think, that when, upon a voluntary dissolution, one partner makes a bona fide transfer of partnership property, for a valuable consideration, 

 [*116]  which [**25]  includes a covenant or promise by the partner taking the assignment, to pay the debts of the firm, or that the retiring partner shall be released from his liabilities for the partnership, he has not by virtue of such a covenant or agreement, any lien on the assigned property, for the discharge of those debts. In saying this, however, we are not to be understood as intimating, that a retiring partner may not assign partnership effects, upon such terms as to secure for him a lien upon those effects for the debts of the firm.
It has been intimated already, that this appeal does not present any question as to the bona fides of the assignment from Buck to Durst, but submits the inquiry, whether, by the terms of the assignment, Buck was entitled to a lien upon the effects of the firm?
The written agreement of dissolution makes no mention of how the partnership effects were disposed of, or in what manner the debts of the firm were to be paid. This agreement is dated the 30th of August 1854. On the 1st day of the following month, Buck executed a written instrument, under seal, by which, for the consideration of $ 500, paid him, he sold "all his interest and claim in the concern of [**26]  Durst & Buck" to Durst. This instrument contains no provision whatever, in relation to the payment of the liabilities of the firm.
There is no regular exception to any part of the evidence.
In the state of the record, and from the character and nature of the evidence before us, we must look to the testimony given by Vogt, to ascertain what was the nature of the agreement, as to how the debts of Durst & Buck should be discharged, and whether that agreement reserved to Buck a lien on account of those debts, upon the effects assigned by him to Durst.
Vogt's testimony shows that Buck was to be released from the debts of the concern. An agreement to release, in such a case as this, can have no greater effect than a contract to pay the debts. And from our view of the authorities, neither one nor the other could, per se, secure a lien in favor of Buck, upon the effects assigned by him to Durst.
The injunction will be dissolved, the appointment of the receiver 

 [*117]  reversed, and so much of the decree reversed as directs a portion of the proceeds of the property and effects therein mentioned, to be paid over to the creditors of the firm of Durst & Buck, which proceeds must [**27]  be paid over by the receiver to the appellants.
Reversed in part, and a decree accordingly. 

188 of 196 DOCUMENTS 

THE BALTIMORE CEMETERY COMPANY vs. THE FIRST INDEPENDENT CHURCH OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

13 Md. 117; 1859 Md. LEXIS 16 

March 8, 1859, Decided 

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

This was an action of debt, brought by the appellee against the appellant, on the 7th of January 1856. The contract on which the suit was brought, the pleadings, and the reasons for the motion in arrest of judgment, are fully stated in the opinion of this court. At the trial an exception was taken, to the refusal of the court (MARSHALL, J.) to grant two instructions asked for by the defendant, but as the case was decided in this court, entirely upon the motion in arrest, these prayers need not be stated.

The verdict and judgment were in favor of the plaintiff, and the court below having overruled the motion in arrest, the defendant appealed.  

DISPOSITION:
Reversed and judgment arrested.  

HEADNOTES:

In an action of debt on a sealed instrument, brought by "The First Independent Church of Baltimore," as plaintiff, the nar. averred, that the promises and obligations of the agreement were made to and with the plaintiff, but, upon oyer, it appeared they were made to and with "the trustees" of the plaintiff. HELD:

That as there is no averment in the nar. that the contract was made with the plaintiff, in the name of its trustees, nor any explanatory averment, why it was not made with the plaintiff in its true name, the variance is fatal, and may be taken advantage of by demurrer, or on motion in arrest.

In an action of debt, a variance appearing on the record, in regard to the name of the plaintiff, may be taken advantage of by demurrer, or on motion in arrest, as well as a variance in relation to the name of a defendant. 

COUNSEL:
Jos. P. Atkinson and Wm. S. Bryan for the appellant:

1st. The instrument set out on oyer, shows, that the obligation, (if it ever became fixed,) was to pay to the plaintiff's trustees; consequently the action should have been brought in the name of the trustees. The variance in this particular, and other variances between the oyer and the description, are fatal to the plaintiff's recovery. Chitty's Pl., 3, 4, 64, 305, 317, 434, (Ed. of 1844.) 1 Greenlf.  [**2]  on Ev., secs. 66, 68, 69, and note. 11 Eng. C. L. Rep., 251, Berkeley vs. Hardy. 42 Eng. C. L. Rep., 817, Cooch vs. Goodman. 7 Cranch., 208, Sheehy vs. Mandeville. Pennington, 84, Inhabitants of Woolwich vs. Forrest. 5 Halsted, 323, Inhabitants of Upper Alloways vs. String.

2nd. This objection is well taken by motion in arrest of judgment. When the deed is set out on oyer, it becomes part of the declaration. Chitty's Pl., 434, (Ed. of 1844.) 3 Cranch., 234, Cooke vs. Graham. 11 Md. 322, Tucker vs. The State. 8 Gill 465, Dorsey vs. Whipps. 2 H. & G. 495, Agnew vs. Bank of Gettysburg.

The objection, therefore, appears on the record, and that too by the plaintiff's own pleading. There is no question that it would have been fatal on demurrer. It must, therefore, be equally fatal in arrest of judgment, unless the defect is cured by verdict: for the judgment of the court is only the conclusion from the facts ascertained on the record. A demurrer admits the facts, and a verdict finds them by the oaths of the jury. Now it is well settled, that a verdict supplies those facts only, which, by fair and reasonable intendment, may be inferred from those stated. This is the [**3]  doctrine of Rushton vs. Aspinall, in 1 Smith's Lead. Cases, 334, the leading case. But the objection here is, not that there is an omission which may be supplied, but that there are facts pleaded by the plaintiff, repugnant to its right of recovery. A verdict cannot supply the want of a right of action. Gould's Pl., ch. 10, secs. 3, 13, 14, 20, 21, 22. 3 H. & J. 216, Noland vs. Ringgold. 24 Eng. C. L. Rep., 96, Price vs. Easton. 7 H. & J. 372, Neale vs. Clautice. Ibid., 113, Howard vs. Ramsay.

John D. Lipscomb and Geo. Wm. Brown, for the appellee:

1st. The court properly overruled the motion in arrest. The first and principal point in the motion is, the variance alleged between the contract as stated in the declaration and as stated in oyer. But there is in fact no variance. The name of the plaintiff is correctly set forth in the contract, and it is clear, that the contract is with the plaintiff; the promise is to the plaintiff, to pay to its trustees merely as the acting officers of the church. Even in a declaration it is sufficient, if the corporate name be stated correctly in the beginning, the full name need not be repeated at every recurrence, (Angel & Ames on [**4]  Corp., 510,) and in a contract, if the corporate name be not stated at every recurrence, the contract is a good one; (2 Kent, 293,) and it will be considered as a contract with the corporation. It is not even necessary, that the corporate name should be stated correctly, provided it sufficiently appears from the evidence, that the corporation is really intended. The contract is substantially with the First Independent Church, the plaintiff. There is no principle of law that requires the exact language of a contract to be used in the declaration; it is sufficient if the subject matter of the contract be substantially and correctly given, in other words, that the contract be stated according to its legal effect. 1 Chitty's Pl., 305. Cases are numerous where mistakes having been made in the names of corporations, in contracts with them, the corporations suing in their true corporate names have been allowed to recover. 5 H. & J. 122, Hagerstown Turnpike Road Co., vs. Creeger. 13 Johns., 38, N. Y. African Society, &c., vs. Varick. 6 Sergt. & Rawle, 12, President, Managers & Co., vs. Myers. 10 New Hamp., 123, Newport Mechanics Manf. Co., vs. Starbird. 10 Mass., 360, Medway Cotton Manf.  [**5]  , vs. Adams. 3 Pick., 232, First Parish in Sutton vs. Cole. 21 Pick., 486, Commercial Bank vs. French. 10 Ohio, 111, Milford & Chillicothe Turnpike Co., vs. Brush.

2nd. But even supposing there was a variance, as alleged, advantage cannot be taken of it by motion in arrest. It is one of those defects which are cured by verdict. The jury could not have given a verdict for the plaintiff, without first finding that the contract sued upon was a contract with the plaintiff; indeed this is conceded by the defendant, and having so found, the defect, if one existed, is cured, and it is now too late to take advantage of it. Evan's Pr., 330. Stephen's Pl., 147, 245, 233. 11 G. & J. 472, Ragan vs. Gaither. 8 Gill 64, Merrick vs. Bank of Metropolis. Angel & Ames on Corp., 582. 4 H. & J. 338, Marine Bank vs. Biays. But the proper remedy in this case, if there be a variance, was a plea in abatement or a demurrer, and it would be unjust to allow the defendant to withhold the objection until after verdict, when it is too late for the plaintiff to correct the error. Evan's Pr., 202, 158, 330. Gould's Pl., 270, 271. 1 Chitty's Pl., 434.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*120]  ECCLESTON, J., delivered the opinion of this court.
This is an action of debt instituted by "The First Independent Church of Baltimore," against "The Baltimore Cemetery Company," upon a sealed instrument of writing.
The declaration states: "And whereupon the said church, plaintiff in this action, by Brown & Brune, its attorneys, complains, that whereas, by a certain agreement, made on the twelfth day of August, in the year eighteen hundred and fifty, to wit, at the city aforesaid, which said agreement, sealed with the seal of the said defendant, the said plaintiff now brings into court here, the date whereof is the day and year aforesaid, it is witnessed, that whereas, a petition to the city commissioners was in circulation to pave Bel-Air avenue from Point Lane to North Avenue; and whereas, to secure a good highway to the Baltimore Cemetery, the defendant had agreed 

 [*121]  to contribute a certain sum, and divide it, at its discretion, among petitioners; and in consideration of the secretary of the plaintiff, in behalf of the plaintiff, signing said petition, the said defendant bound itself to pay to said plaintiff, one-half [**7]  of the whole cost of paving said avenue, which might be chargeable to the burial ground of said plaintiff, situate on said road, whenever the said plaintiff should be called upon by the proper party."
And the declaration then avers, that subsequently, to wit, on the first day of September, eighteen hundred and fifty, at the city aforesaid, in pursuance of said agreement, the secretary of the plaintiff, did, in behalf of the plaintiff, sign the said petition; that the whole cost of paving said avenue, chargeable to the burial ground of the plaintiff, situate on said road, amounted to the sum of $ 571.69, which said sum, on the 1st day of May 1854, at the city aforesaid, became due and payable by the plaintiff to the Mayor and City Council of Baltimore, and the plaintiff was called on for payment thereof, by the proper party, to wit, by the collector of said Mayor and City Council; and thereupon one-half of said sum, to wit, two hundred and eighty-five dollars and eighty-four cents, became, and was then and there, due and payable to the said plaintiff, and ought then and there to have been fully paid by the said defendant to the said plaintiff, according to the tenor and effect of the [**8]  said agreement.
The defendant having craved oyer of the agreement under seal, it appears in these words, to wit:
"Whereas, a petition to the city commissioners is in circulation to pave Bel-Air avenue from Point lane to North avenue; and whereas, to secure a good highway to the Baltimore Cemetery, the Baltimore Cemetery Company have agreed to contribute a certain sum, and divide it, at their discretion, among the petitioners.
"And in consideration of the secretary of the First Independent Church of Baltimore, in behalf of the trustees, signing said petition, the said Company hereby bind themselves to pay to said trustees, one-half of the whole cost of paving said avenue, which may be chargeable to the burial ground of said 

 [*122]  trustees, situate on said road, whenever the said trustees shall be called on for payment by the proper party. In testimony whereof, the said Company have caused their seal to be affixed hereto, and their president to sign the same, this 12th day of August 1850.
(Seal.)   BEN. A. LAVENDER, President."
The pleas are--
1st. That the agreement had not been broken by the defendant in the manner and form complained of.
2nd. That the secretary of [**9]  the plaintiff did not, in behalf of the plaintiff, sign the petition mentioned in the declaration.
3rd. That the whole cost of paving said avenue, chargeable to the burial ground of the plaintiff, situate on said road, did not amount to $ 571.69.
4th. That the portion of the avenue mentioned in the declaration could not be lawfully paved, unless an application for that purpose was made to the city commissioner, signed by the proprietors of a majority of the feet of ground binding and fronting on said portion of the avenue; that the petition mentioned in the declaration was not signed by such majority, and was abandoned, and not prosecuted to the city commissioner; and that afterwards another application was presented to the city commissioner, signed by the proper majority of proprietors, but not signed by the secretary of the plaintiff, or by any other person for it; and that thereupon such proceedings were had that the said portion of said avenue was paved by the authority of the Mayor and City Council of Baltimore.
The plaintiff joined issue upon the first, second and third pleas. To the fourth the replication is, "that said petition never was abandoned."
At the trial of [**10]  the cause, the charter of the plaintiff was read in evidence, and is to be considered in this court as if inserted in the record. And the charter shows the true corporate name to be, "The First Independent Church of Baltimore."
The jury gave a verdict in favor of the plaintiff for $ 300.12, and the defendant filed a motion in arrest of judgment, assigning the following reasons:
First. Because the contract set out in the declaration varies 

 [*123]  from that in the oyer, in this: That it is alleged in the declaration, that the Baltimore Cemetery Company, in consideration of the secretary of the plaintiff, in behalf of the plaintiff, signing the petition mentioned in the declaration, the said Cemetery Company bound itself to pay to plaintiff, one-half of whole cost of paving Bel-Air Avenue, which might be chargeable to the burial ground of plaintiff, situate on said road, whenever the said plaintiff should be called upon by the proper party; whereas, by the contract set out in oyer, it appears that the secretary of the plaintiff was to sign the said petition in behalf of the trustees; and that the payment by the company was to be made to the trustees, and the amount to be paid [**11]  was one-half the cost of paving, chargeable to the burial ground of said trustees; and the time of payment was when said trustees should be called upon by the proper party.
Second. Because there is no averment in the declaration showing that the paving of Bel-Air Avenue was done in consequence of the signing of the said petition by the secretary of the plaintiff, or that the said petition was, in any way, effectual in bringing about said paving.
The third reason is abandoned.
Fourth. Because the action should have been covenant instead of debt.
The first of the reasons, thus assigned, presents the question on which the case will be decided.
In an action of debt upon a bond, in Williams vs. Bryant, 5 Mees. & Welsby 447, the declaration complained against William Francis Bryant, who had been sued by the name of William Bryant. The defendant pleaded non est factum. It appeared in evidence that the defendant did, in fact, execute a bond agreeing with that described in the declaration, by the name of William Bryant, and that at the time of the execution he was known by that name. It was objected that the issue was not maintained, and that there ought [**12]  to be a non-suit. The judge directed a verdict for the plaintiff, reserving to the defendant's counsel liberty to move to enter a non-suit. After argument, upon a rule to show cause, the rule was discharged. In delivering the opinion of the court, 

 [*124]  Parke, B., notices the case of Gould vs. Barnes, 3 Taunt. 504, and others therein referred to. And from these, he says: "It appears to be a settled point, that if a declaration against a defendant by one christian name, as, for instance, Joseph, state that he executed a bond by the name of Thomas, and there be no averment to explain the difference, such as that he was known by the latter name at the time of execution, such a declaration would be bad on demurrer, or in arrest of judgment, even after issue joined on a plea of non est factum." Subsequently, in the same opinion, the learned Baron holds it to be certain, that a person might then sue or be sued, not merely by his true name of baptism, but by any first name which he has acquired by usage or reputation. And that if so, it must be a sufficient designation of him, if he enters into a bond by that name. It is then said: "It by no means follows,  [**13]  therefore, that the decisions in the case of Gould vs. Barnes, and others before referred to, in which the question arose on the record would have been the same, if there had been an averment on the face of the declaration, that the party was known by the proper name in which the bond was made at the time of making it. We find no authorities for saying that the declaration would have been bad with such an averment, even if there had been a total variance of the first names; still less where a man having two proper names, or names of baptism, has bound himself by the name of one. And on a plea of non est factum, where the difference of names does not appear on the record, and there is evidence of the party having been known, at the time of the execution, by the name on the instrument, there is no case cited on the argument, and none that we aware of, which decides that the instrument is void." Under the pleadings and proof in that case, the court held, that the bond, which was executed in the name by which the party was commonly called or known, was not void, and consequently the plaintiff was entitled to recover.
And the opinion concludes thus: "We wish to add, that it appears [**14]  to us, that if the objection were valid, it was not available under this plea of non est factum, since the new rules."
The rule of Hilary Term, 4 Will. 4th, on this subject, 

 [*125]  declares that: "In debt on specialty, the plea of non est factum shall operate as a denial of the deed in point of fact only, and all other defences shall be specially pleaded, including matters which make the deed absolutely void, as well as those which make it voidable."
The refusal to enter a non-suit, in Williams vs. Bryant, was based upon the particular circumstances of that case. But, nevertheless, the opinion of the court is a clear and explicit recognition of the point or principle stated as settled by Gould vs. Barnes, and other cases therein referred to. It is conceded throughout, that where the variance appears on the record, it is necessary to explain the difference by a proper averment in the nar. Such we therefore understand to have been the law in England, in a suit upon a sealed instrument set out upon oyer, prior to the adoption of the new rules. And if so, the same law is applicable to the case before us.
As to the effect of setting out a [**15]  deed on oyer, see 1 Greenlf. on Ev., sec. 69, and notes.
Seeing that a variance appearing on the record, in regard to the name of the defendant, in the absence of a proper averment in the nar., may be taken advantage of by demurrer, or upon a motion in arrest of judgment, it is difficult to perceive why the same law should not apply to a variance in relation to the name of a plaintiff.
Instead of this contract having been made with the plaintiff, in its true corporate name, the promises and obligations of the same all appear to be to the "trustees." And yet there is no averment in the nar., that the contract was made with the plaintiff in the name of its trustees; nor is there any averment explanatory why the contract was not made with the plaintiff in its true name.
But the nar. simply states all the promises and obligations of the agreement to have been made with the "plaintiff;" the nar. showing the plaintiff to be, "The First Independent Church of Baltimore."
It is true, as stated by the plaintiff's counsel, that there are cases where mistakes have been made in the names of corporations, in contracts with them, upon which the corporations, 

 [*126]   [**16]  suing in their true names, have been allowed to recover. We have examined the cases which have been referred to on this point, and in not one of them has the doctrine announced by Baron Parke, above stated and relied upon, been overruled or denied to be sound law, where the suit was upon a sealed instrument, and upon oyer a variance has appeared on the record, in the name of the plaintiff or the defendant.
It is contended by the plaintiff's counsel, that supposing there is a variance, as the defendant has alleged, still, advantage cannot be taken of it by motion in arrest of judgment, because it is such a defect as is cured by verdict.
This cannot be so, if we are correct in supposing--as we think we are--that the true English doctrine, before the introduction of the new rules, in such a case as the present, was that which, in Williams vs. Bryant, Baron Parke spoke of as appearing, from the cases he referred to, "to be a settled point."
Entertaining these views, we need not notice any questions presented by the record, other than the first reason assigned for arresting the judgment. And upon this, the decision below, overruling the motion in arrest, will be reversed, and the [**17]  judgment upon the verdict will also be reversed and arrested.
Reversed and judgment arrested. 

189 of 196 DOCUMENTS 

MARY JANE WILSON vs. JOHN HINSLEY.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

13 Md. 64; 1859 Md. LEXIS 10 

February 16, 1859, Decided 

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

Trespass on the Case, brought on the 10th of May 1855, by the appellant against the appellee, to recover damages for alleged injuries to the plaintiff's reversionary interest in a certain dwelling-house in the city of Baltimore, by the improper construction of a stable erected by the defendant upon the adjoining lot.

The declaration contains three counts, the second of which complains that the defendant wrongfully erected and caused to be built near to and upon the plaintiff's said messuage and premises, a certain stable for horses, the said defendant then and there omitting and utterly neglecting, in the said erection of said stable, to build a proper southern wall for the support of the same, and the separation thereof from the said messuage of the plaintiff, but making use of the northernmost wall of the said messuage, in the place of and as a substitute for a proper and sufficient wall of the said stable, and the said defendant, in the execution of this wrongful purpose, then and there greatly injured the said wall of the said messuage, by driving into the same divers spikes and nails, and placing against and upon the same [**2]  divers pieces of timber, joists, boards and planks; and also the said defendant, in and by the building and erection of the stable aforesaid, and in the manner aforesaid, and also by wrongfully using the said stable, and placing and keeping horses therein, against and near the said wall of the said messuage, hath greatly injured the said messuage and lessened the value thereof. By means of which said several premises, the said plaintiff hath been and is greatly prejudiced and aggrieved in her reversionary estate in the said messuage and premises, so in the possession and occupation of her tenant. Plea, non cul.

1st Exception. Proof was offered that one Mrs. Hyland, was in possession of the house, as the tenant of, and paid rent therefor to, the plaintiff; and also evidence of the manner in which the defendant had constructed his stable on the adjoining lot, tending to sustain the allegations in the nar. The plaintiff then proved by Henry Myers, that he was a property agent, his business being the buying and selling real estate for others, that the house in question had been in his hands for some months for sale for the plaintiff, and that he was well acquainted with the premises,  [**3]  and had seen the defendant's stable and examined particularly how it was constructed. The plaintiff then asked this witness: "Has any effect been produced upon the marketable value of the plaintiff's house in Calvert street," (mentioned in the declaration,) "by the erection adjoining thereto of the defendant's stable mentioned in the declaration?" To this question the defendant objected, as tending to draw forth matter of opinion, which objection the court (LEE, J.,) sustained, and refused to permit the question to be asked. To this ruling the plaintiff excepted.

2nd Exception. Other evidence was then offered by the plaintiff, of a similar character to that contained in the first exception, including the additional fact, that the house was insured in the plaintiff's name, and that the liability to fire was increased by the manner in which the defendant's stable was constructed. The defendant then offered in evidence a deed, dated the 25th of June 1844, from James P. Wilson, the plaintiff's father, to John S. Hollins and Benjamin H. Wilson, conveying the unexpired term of ninety-nine years, with benefit of renewal forever, in a certain lot of ground on Calvert street, in Baltimore,  [**4]  to the grantees, in trust for the use of the grantor for life, with power to him to sell the same and invest the proceeds in other property, and after his death in trust for the proper use, benefit and behoof of Mary Jane Hollins Wilson, his daughter, her executors, administrators and assigns. It further appeared that the grantor, James P. Wilson, died about the time of the Mexican war; that the plaintiff has been of age for some time; and that the defendant had been in treaty for the purchase of the house from the plaintiff, the latter being represented by Mr. John S. Hollins, who acted in the matter as her agent, and in that character only, disclaiming all right of sale in himself. The defendant then asked an instruction to the jury:

That if they find from the evidence that the property on north Calvert street, adjoining on the south the stable of the defendant, was, and now is, the same property mentioned in the deed offered in evidence by the defendant, then the plaintiff cannot recover in this form of action.

The plaintiff then asked the court to instruct the jury, that if they believe from the evidence that, at the time of committing the grievances complained of in [**5]  the declaration, Mrs. Hyland was in occupation of the house and lot mentioned in the declaration, as tenant to the plaintiff, and was let into possession by the plaintiff, and paid rent to her, then the plaintiff is not precluded from maintaining this action, by any thing in the defendant's prayer contained, though they should find all the facts hypothetically set forth in said prayer to be true.

The court refused the plaintiff's prayer and granted that of the defendant, with this addition, "and the trustees in said deed who hold the legal estate are the proper parties to bring the suit." To this ruling the plaintiff excepted, and the verdict and judgment being in favor of the defendant, appealed.  

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

In an action for damages done to the plaintiff's house by the manner in which the defendant built a stable adjoining it, evidence that the marketable value of the house had been diminished by the injury complained of is admissible, but not that such value had been diminished by the fact of the erection of a stable adjoining thereto.

A party in possession of real estate can maintain an action for a trespass against any one save the legal owner; the fact that his tenant was in possession of the property and paid rent therefor to the plaintiff, gives him a right to bring an action of trespass against a wrong-doer, for an injury to the reversion.  

COUNSEL:
A. W. Machen for the appellant.

The testimony of Myers in the first exception, as to the diminished value of the premises was erroneously excluded, because in a case like this, where property is injured not only by a nuisance erected near it, but by a direct injury to the property itself, and a wrongful use of it, the proper measure of damage is, by how much less the premises would sell in consequence of the wrongful acts of the defendant,  [**6]  (3 Wels. Hurls. & Gor., 168, 182, Hosking vs. Phillips,) and it is difficult to see how this diminished value can be proved, except by the testimony of an expert, like Mr. Myers.

After the plaintiff had shown a prima facie title to the injured premises, by proof of payment of rent to her by the tenant in occupation, the court below, by granting the defendant's prayer, ruled that the deed from the plaintiff's father to Hollins and Wilson, as trustees, entirely rebutted her case, upon the ground, that her action was grounded on an equitable and not a legal right. This, it is submitted, is a mistake, for--

1st. The receipt of rent from the tenant in possession, gave the plaintiff a good legal title to the reversion against every body, who could not show a legal title in himself; and the defendant, a mere wrong doer, not claiming under one who had the legal estate, could not set up any outstanding estate against the prima facie title of the plaintiff. In Daintry vs. Brocklehurst, 3 Wels., Hurls. & Gor., 207, this point was directly decided, and the reasons by which it is supported are clearly stated in the judgment of the court, as delivered upon consideration by Baron Parke.  [**7]  (See, also, what Baron Parke says, of the previous case of Day vs. Williams, in the same court, which was the very case of cestui que trust and trustees, and what would and ought to have been the decision there, if the point had been put before the court. Ibid., 210.) The same principle appears also, though not so distinctly, in the case of Page vs. Hachett, 10 Jur., 634, where it was held, that a plaintiff might maintain an action for a nuisance to a wharf, which he alleged himself to be possessed of, by evidence of general user, although the defendant gave in evidence a lease to the plaintiff from the owner, granting him an easement in the wharf merely and not an estate. So in respect of personal chattels, it has been held in this State, that a defendant in trover, who has meddled with negroes in the possession of the plaintiff, cannot be permitted to show that the title at the time of the conversion was not in the plaintiff, and was outstanding in a third party. Harker vs. Dement, 9 Gill 12, where Archer C. J. and Le Grand A. J., held at the trial, that the jus tertii could not be set up by the defendant, and this ruling was affirmed in the Court of Appeals. And this doctrine [**8]  stands on the same principle, on which a person in possession is held to have a good title against every body except the legal owner of the estate. In an action against a wrong doer, a plaintiff who is in possession, whether directly or mediately through his tenant, stands like a defendant in ejectment. The plaintiff in ejectment is put to proof of title, because his action admits the possession of the defendant, and possession is prima facie evidence of title; and a plaintiff in an action against a wrong doer, is entitled to the same presumption when he has once brought proof of his possession. Gardner vs. Heartt, 2 Barb., 169, 170. The possession of a tenant is the possession of his landlord. Angell on Lim., 418, sec. 13. Other analogies of the law may be instanced. Thus an action for use and occupation, may be maintained against one who has paid rent to the plaintiff, although the latter, in proving his own case at the trial, disclose the fact that he has but an equitable estate. 11 Adol. & Ellis, 335, Dolby vs. Iles. And that an action for use and occupation may be supported on an equitable title, where such determination is agreeable to the obvious justice of the case, appears [**9]  also from Hall vs. Vaughan, 6 Price, 157, 167.

2nd. The instruction was erroneous in assuming many facts, which ought at all events to have been passed upon by the jury. It assumes 1st, that James P. Wilson was possessed of the premises at the time of executing the deed, of which there is not any evidence, and the plaintiff did not profess to claim under him, (1 H. & J. 153, Lowes vs. Holbrook;) 2nd, that the plaintiff derived title under the deed and not adversely to it; 3rd, that the plaintiff is the daughter of James P. Wilson, a fact constituting the only ground the defendant pretended to advance for the inference, that the plaintiff claimed under him; and 4th, the facts of the existence, execution and delivery of the deed. The deed was produced by the defendant, and John S. Hollins' conduct is some evidence that there was no delivery. 1 H. & J. 323, Clarke vs. Ray. 6 Md. 86, 88, Barry vs. Hoffman. 3 Md. 67, 73, Stewart vs. Redditt.

3rd. The jury ought not to have been debarred from presuming a conveyance from the trustees to the plaintiff, the more especially as it was their duty to make such conveyance if required by her, and that it had been required,  [**10]  might legitimately have been inferred from her absolute and exclusive use and enjoyment of the property, and dealing with it in all respects as owner. Best on Presumptions, sec. 112.

4th. The trust may be regarded as expiring at the death of Mr. Wilson; it is not the case of a trust for the sole and separate use of a married woman. 3 Md. 505, Ware vs. Richardson.

5th. Even supposing the deed to have been admissible in evidence, the plaintiff's prima facie title was not rebutted by it. Her perception of rent from the person in possession was prima facie evidence of a seisin in fee. Best on Presumptions, sec. 76. Hence an outstanding leasehold interest in another did not necessarily divest her of the reversion which she had proven, but, on the contrary, was quite consistent with some reversion in her.

Wm. Pinkney Whyte for the appellee:

The question asked the witness, Myers, in the first exception, was simply, whether the erection of the stable as a stable had not produced an effect upon the marketable value of the house in question? In this form it was clearly inadmissible because of irrelevancy. The matter in issue under the pleadings, was not whether the property [**11]  had depreciated by reason of the erection of a stable next to it, but whether in the construction of that stable any acts had been done by the defendant or his servants, which had damaged the reversionary interest of the owner thereof, and the evidence was to be confined to the amount of damages occasioned by the special acts complained of in the declaration, in the construction of the stable, and in the use of the wall of the dwelling-house in question. This view is so clear upon the general principles which govern the admissibility of evidence, that no authority need be cited to sustain it.

The defendant's prayer in the second exception was properly granted, because the plaintiff was merely a cestui que trust, and had only an equitable interest in the house and lot, and, therefore, no right to sue in a court of common law, any person for any wrong done to her equitable interest, unless she was in actual possession of the house. 1 Chitty's Pl., 360. The trustee should bring all actions respecting the trust estate in a court of law, the cestui que trust, though the absolute owner in equity being at law regarded, as a general rule, in the light of a stranger. Lewin on Trusts, 248.  [**12]  Sanders on uses & Trusts, 252. This general principle of the law of pleading, has been frequently recognised in this court, and even in relation to actions at law, which are quasi equitable in their nature. 3 G. & J. 393, Green vs Johnson. 3 Gill 163, Dugan vs. Gittings. In actions of ejectment the principle is well settled. Lewin on Trusts, 591. 7 Term Rep., 47, Goodtitle vs. Jones. In order therefore to relieve himself from the effect of these decisions, the appellant's counsel contends, that the receipt of rent gave to the plaintiff a prima facie title to the reversion, and to sustain the principle, cites the authorities in 3 Wels., Hurls. & Gor., 207, and others. These cases have no analogy to the case at bar, for here the prima facie title is rebutted, not by an outstanding title in a stranger but by actual proof of the plaintiff's own title being an equitable one only, which she confirmed by her own testimony, showing the death of her father prior to the bringing of this suit. The receipt of rents, therefor, when explained by proof of her equitable title, is entirely consistent with that title, and is no fact from which an adverse legal title could be inferred. Although [**13]  in some cases a surrender of a legal estate may be presumed, yet there must be reasonable ground. 7 Term Rep., 47. The principle is fully stated in Best on Presumptions, in 47 Law Lib., 159.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*71]  LE GRAND, C. J., delivered the opinion of this court.
This is an action of trespass on the case, brought by the appellant against the appellee, to recover damages alleged to have been inflicted on her reversionary interest in a certain house, in the city of Baltimore, by the manner in which he built a stable adjoining it; the particular damage complained of being, the driving into the northern wall of her house certain spikes, by which the southern side of his stable was upheld and supported, and in the over-lapping of a portion of her northern wall, and the placing upon its top and adjoining roof, tin, &c.
The plaintiff to prove her case, gave evidence that at the 

 [*72]  time, and before the happening of the acts complained of, her tenant was in the possession of the house, for which, the latter as tenant, paid rent. She also gave testimony, that spikes had been inserted into her wall, and [**14]  tin placed upon a portion of her wall and roof by the defendant. The plaintiff then asked the witness, Myers, the following question: "Has any effect been produced upon the marketable value of the plaintiff's house in Calvert street, by the erection adjoining thereto of the defendant's stable mentioned in the declaration?" The court refused to allow the question to be put, and this constitutes the plaintiff's first bill of exceptions. Perhaps it would have been the more advisable course to have withheld the objection to the admissibility of the evidence, or taken it subject to exception, until all the testimony in the cause had been received; but, as it was the right of the counsel of the defendant to object at the time of the offer, it was the obligation of the court to decide it at that time, and we concur with it in the propriety of its rejection. It was competent to the plaintiff to show by evidence, that the marketable value of the house had been diminished by the injury complained of, to wit, the driving of the spikes and the over-lapping of her wall, but not by the erection of a stable adjoining her property. The erection of a stable in a particular place, may, or may not, affect [**15]  the marketable value in the neighborhood. But this is not the injury complained of in this case; it is the manner of its erection in the use and injury of the house of the plaintiff. Had the question been so confined, it would have been proper.
In addition to the evidence contained in the first bill of exceptions of the plaintiff, testimony of a similar character to it was offered by the plaintiff, with the additional fact, that the plaintiff had effected, in her own name, an insurance on the house. The defendant to support the issue joined on his part, offered in evidence a paper purporting to be a deed of trust, dated the 25th June 1844, from James P. Wilson to John Smith Hollins and Benjamin H. Wilson, by which the grantor reserves to himself during life, the right to sell and dispose of the house in question, but if he should fail to do so then, and in that event, "in trust for the proper use, benefit 

 [*73]  and behoof of Mary Jane Hollins Wilson, the daughter of the party of the first part, her executors, administrators and assigns, and to, for and upon no other use, trust, interest or purpose whatsoever." The defendant also gave evidence by a witness, that he believed [**16]  the signature, J. P. Wilson, to be the genuine hand-writing of James P. Wilson, father of plaintiff.
On this state of case, the plaintiff and the defendant, each asked an instruction from the court to the jury, the former of which was refused, and the latter granted with an addition.
The instruction given, substantially told the jury, that if they believed the house alleged to have been damaged, was the same as that mentioned in the paper given in evidence by the defendant, that then the plaintiff could not recover, and, that the trustees mentioned in that deed were the proper parties to bring the action. The prayer of the plaintiff denied, that even if the facts contained in the prayer of the defendant, and the instruction of the court, were found by the jury, the plaintiff was precluded from maintaining her action.
Both the prayer of the defendant and the instruction given by the court were erroneous. They were so because they assumed the existence of several facts, which, on their very hypothesis, ought to have been found by the jury. Besides this, they were wrong for other and stronger reasons. The jury might well believe that the house, the ownership of which was claimed by [**17]  the plaintiff, was the same property mentioned in the deed given in evidence by the defendant, and yet that fact would not suffice to defeat the action of the plaintiff. So far as the record shows, the plaintiff did not claim under that deed, nor was there evidence that the grantor in it ever had any right to execute any binding instrument like it. For anything this court can see, her title may have been wholly adversary to that claimed by the grantor in the deed.
But apart from these objections to the instruction given, we are of opinion, that on the facts disclosed in this record, the plaintiff could maintain her action. The defendant set up no title to the property; he was, confessedly, a wrong-doer. The law is clear, that the party in possession, can maintain an action 

 [*74]  against any one for trespass save the legal owner. This doctrine was most distinctly recognized, after mature deliberation, and applied by analogy to a case very similar to the one before us, by the court of Exchequer, in Daintry vs. Brocklehurst, 3 Welsby; Hurlston & Gordon, 207, 210, and will be found also to be fully sustained by the authorities collected, and commented upon in [**18]  the elaborate opinion in the case of Harker, et al., vs. Dement, 9 Gill 7.
Judgment reversed and procedendo awarded. 

190 of 196 DOCUMENTS 

WILLIAM PETERS vs. GEORGE B. LEAGUE and ELISHA WINN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

13 Md. 58; 1859 Md. LEXIS 9 

February 8, 1859, Decided 

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

Bill by the appellant, against the appellees, for an injunction to restrain the execution of a judgment of condemnation, which George B. League, one of the appellees, had obtained against the complainant, as garnishee of Luke League.

The bill states, that League having, or pretending to have, obtained a judgment against his brother, Luke League, caused an attachment thereon to be issued, by a justice of the peace, directed to Madison Jeffers, a constable, who returned the same as laid in the hands of ----- Peters, as garnishee, and a judgment of condemnation was thereupon rendered, by the magistrate, against complainant, without his knowledge, on which League has caused a fi. fa. to be issued, directed to the defendant, Winn, as constable, who has levied the same upon complainant's property. The bill charges, that the attachment never was, in fact, served on the complainant, or laid in his hands, and that he never had any notice thereof, and that the return thereto is utterly and totally false, and if he had had proper notice and lawful service of the writ, and proper and lawful occasion to appear thereto and defend himself,  [**2]  he could have shown, that neither at the time the writ issued, nor at any time since, had he any property or credits of Luke League in his hands. He avers, that on an afternoon, in the past winter, during one of the sessions of the City Council of Baltimore, of which he was a member, Jeffers came into the council chamber, where he was busily engaged in the discharge of his public duty, and about to reply to some remarks then being made in debate, and approaching him observed: "I have a writ for you," or words to that effect, to which he replied: "This is not the place to serve it, my place of business is on Pratt street, where you will always find me," or words to that import; whereupon Jeffers, without giving him any idea of what the purport or character of the writ was, left the chamber, he supposing Jeffers would call next day, as requested, to serve the writ, but he never did so call, and never did then, or at any other time, inform complainant of the character of the writ, where, when, or before whom it was to be answered, or at whose suit it had been issued, so that he remained utterly ignorant thereof, and of the return thereto, and proceedings thereunder, and never knew of [**3]  the existence of the alleged attachment, or of the pretence that it had been laid in his hands, until after the judgment of condemnation had been rendered, and after it was too late for him to have remedy by appeal, as provided by law. He charges that the return was false and fraudulent, the condemnation fraudulently procured, and all knowledge of the same fraudulently concealed from him until the time for appeal had gone by; and that the fi. fa. thereon was fraudulently sued out, when too late for appeal, with the covinous intent to extort from him money which he did not and does not owe.

The injunction was issued, and after answers denying the allegations of the bill, testimony was taken, and Jeffers, the constable, proved that some time previous to laying the attachment, he received a note of hand from the attorney of George B. League, drawn by Luke League, with orders to issue warrant, that the issue was made by a justice of the peace, served within the return day, and regularly returned to the justice; that some short time afterwards, an attachment was ordered upon a judgment which had been rendered against Luke League, in favor of George B. League, and issued by the same [**4]  justice, and put in witness' hands with orders to lay it in the hands of complainant; witness called at his place of business, and not finding him there, told the clerk he wanted to lay an attachment in his (complainant's) hands, to bind money of Luke League, and the clerk directed witness to the council chamber, where he proceeded for the purpose of serving this attachment, found complainant occupying the first seat on the left upon entering the chamber, took a seat immediately behind him, outside the bar, told him the object of his visit, and handed him the attachment to read, and complainant read it, took a memorandum of the return day, and said he would attend to it; after which, witness called the attention of two witnesses to it, and made return of the attachment to the justice, as having been served in the presence of these witnesses. The council was in session and transacting business at the time, but witness has no recollection of speech-making or resolutions being offered; complainant made no objection to the writ, but said at the time he did not owe Luke League anything, to which witness replied he had nothing to do with it, that he (complainant) would have to come and answer [**5]  on oath.

The court (KREBS, J.,) dissolved the injunction and dismissed the bill, and from this decree the complainant appealed.  

DISPOSITION:
Decree affirmed, with costs.  

HEADNOTES:

Where an attachment process has been, in fact, served on a party, he cannot ask a court of equity to enjoin execution of the judgment of condemnation, upon the ground of surprise in obtaining it.

The validity of the judgment, upon which the attachment was issued, cannot be assailed collaterally in a proceeding in equity by the garnishee, to restrain the execution of the judgment of condemnation.

Equity cannot restrain, by injunction, execution of a judgment of condemnation, upon the ground, that the garnishee was privileged from service of the attachment, because of his being a member of one of the councils of the city of Baltimore, and in the actual discharge of his duties as such, at the time the writ was served on him.

Service of process upon a privileged person is not void, but a mere irregularity, which may be waived by a trial or confession of judgment; the privilege must be claimed by plea or motion in the particular case, made at the proper time.

Nor is service of process avoided by privilege in respect to the place where it was served.  

COUNSEL:
T. Yates Walsh for the appellant:

1st. The testimony of Jeffers shows, that the defendant, League, and Jeffers commenced their proceedings in the premises by an enterprise against the law, for the Act of 1821, ch. 249, sec. 3, provides, that no justice of the peace "shall issue a warrant for debt, except on the application of the plaintiff or plaintiffs in person, or of his, her or their agent or attorney, thereunto authorised, other than a constable," and the proof shows, that Jeffers gave the order in this case, to issue the warrant on the original cause of action against Luke League. Besides this, there is no proof in the record of the existence of any such judgment upon which the attachment could issue.

2nd. The averments of the bill as to fraud and surprise are fully sustained. The judgment of condemnation was entered up, and permitted to lie in the office of the justice, until the time for appeal had passed by, and the writ of fi. fa. was then issued to another constable. There is no proof in the record [**6]  of any indebtedness, on the part of the complainant, to Luke League, but on the contrary the proof is, that League was the complainant's debtor. By the Act of 1789, ch. 9, sec. 6, a power is recognized in the courts to set aside judgments "for fraud, deceit, surprise or irregularity in obtaining the same," und there is no limit of time for the exercise of this power. Ev. Pr., 339. 8 Md. Rep. 50, Frazier vs. Griffie.

3rd. The testimony of Jeffers proves, that what he calls a service of the attachment, was a most outrageous intrusion in and interference with a legislative body. There was no valid service of the writ. Unless society is to be governed by the laws of disorder, his proceedings in the Council Chamber were a nullity. The error in the argument on the other side is, that the complainant's acquiescence heals everything--a great mistake. It was not the complainant's privilege to be exempted from disturbance while in the discharge of legislative duties, but it was the public right. The city councils are quasi sovereigns--they are officers of the government for the administration or discharge of public duties, and when exercising those duties, any member is as much exempt from [**7]  arrest or service of process, as members of Parliament or the Legislature. 8 Md. 95, Mayor & City Council of Balto. vs. Root. If there was no valid service, then the complainant had no notice, as averred in his bill, and a court of equity ought to interfere to restrain execution of the judgment.

Llewellin F. Barry for the appellees:

1st. The defence set up by the appellant, that he was a member of the City Council at the time of laying the attachment, is not a good one, inasmuch as he, of his own will, made the council chamber a place of business, inviting, through his authorized agent, the officer to go there to lay this attachment, and when laid, promised to attend to it. If it was wrong he cannot take advantage of his own wrong.

2nd. If the defence were a good one, he should have appeared and set it up at the magistrate's court, or on appeal in the Court of Common Pleas, and not treat with contempt any of tho courts of law. Besides this there is no equity disclosed in the testimony in his favor.  

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

OPINIONBY:
TUCK 

OPINION:

 [*63]  TUCK, J., delivered the opinion of this court.
The evidence shows, that [**8]  the process of attachment was, in fact, served on the appellant; there is therefore no jurisdiction for enjoining the execution, on the ground of surprise, in obtaining the judgment of condemnation. He might have made all proper defences before the justice of the peace.
We cannot, on this appeal, inquire into the authority of the justice who issued the warrant against Luke League, on which the judgment was rendered against him; and which is said to have been the basis of the attachment laid in the hands of the appellant. The validity of that judgment cannot be assailed collaterally in the present proceeding.
It is supposed, that the appellant was privileged from the service of the attachment; and especially while in the actual discharge of his duties as a member of one of the councils of Baltimore. If this be admitted, it will not follow that the party can obtain relief in the way proposed. Service of process on a privileged person is not void; it is treated as an irregularity, even in cases where, under the process, a party may be held to bail. It may be waived by a trial or confession of judgment; and this shows that it does not avoid the proceedings, for what is a nullity cannot [**9]  be cured. There are many cases in which the exemption has been claimed by plea, or motion, in the particular case; but none, as far as we are informed, where equity has interfered by injunction. In Prentis vs. Commonwealth, 5 Rand. 697, where the subject was examined with care, on the application of a member of the Legislature, it is said: "We are satisfied that the courts may not, ex officio, take notice of the existence of the privilege. It results, from its nature and character, that it may be waived, and therefore ought to be claimed whenever relied on. The judicial history of the question does not furnish an example of the allowance of the privilege, but upon plea, or upon motion, tendered or made, at the period proper for the consideration thereof by the court, whose proceedings are sought 

 [*64]  to be abated or suspended." **** "The proof of the facts upon which it rests, are easy of attainment, because they are few, and may be adduced, as well in the absence, as in the presence of the party." We consider this decision altogether consistent with the authorities upon the subject.
It is worthy of remark, that Peers and members of Parliament were liable at common [**10]  law to be sued though they could not be arrested on writs of capias. Here the process was an attachment, with a summons to the party as garnishee; therefore the supposed analogy between members of the Baltimore City Councils and of Parliament would not aid the appellant.
If there was privilege in respect to the place, the service was not thereby avoided, whatever penalties the officer might have incurred by his alleged contempt, if the body had thought proper to vindicate its dignity against such intrusion. See 3 Bl. Com., 289. Sewell on Shffs., 133, (46 Law Lib.) 1 Sell. Pr. 58. Fortnam vs. Rokeby, 4 Taunt. 668. Bouv. Bac. Abr. Privilege, C. 5. 1 Tidd's Pr. Ch., 6, 136, 217. Macnamara on Nullities, 6, 64. Bartlett vs. Hebbes, 5 Term Rep. 686.
Decree affirmed, with costs. 

191 of 196 DOCUMENTS 

ALFRED G. BENSON AND RICHARD W. TRUNDY, vs. ADINO P. ATWOOD, et al.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

13 Md. 20; 1859 Md. LEXIS 8 

January 28, 1859, Decided 

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

The proceedings in this case were commenced by an attachment on warrant sued out of the court below, on the 4th of June 1853, by the appellees against the appellants, and laid in the hands of Barreda & Brother, of Baltimore, as garnishees. The defendants appeared, gave bond, and the attachment was dissolved. The plaintiffs then filed their declaration in assumpsit. The cause of action was an alleged breach of a charter-party of the barque J. W. Paige, owned by the plaintiffs, and chartered by the defendants. The case was tried under an agreement that "errors in pleading are waived, it being understood that the action in this cause is for an alleged breach of a charter-party of the 19th of June 1852."

Defendants' Exception. The charter-party, dated the 19th of June 1852, which was offered in evidence, and its execution proved, describes the vessel as "now on a voyage from Frankfort to San Francisco," and contains, among others, the following stipulations:

1st. The owners agree that the barque "shall sail immediately, as soon as she has discharged her present outward cargo at San Francisco, to one of the Guano Islands on [**2]  the west coast of South America, between latitude one and fifteen south, as he shall be directed by the charterer, or his agent at San Francisco, for orders to be furnished him there, at said island, by charterer or his agent, to take thence or thence and from an adjacent Island, a cargo of guano, as may be directed."

2nd. "The charterer obliges himself to furnish to said vessel, at one or both those islands, all the guano which can be conveniently stowed away."

4th. "The captain is to receive the said cargo of guano within twenty-five running days, exclusive of Sundays The captain to notify in writing to the charterer's agent at the islands, when his vessel is ready to receive cargo, and from such date until the ship may be loaded, the lay days are to be counted."

5th. "All port charges at ports or islands where the vessel may call for orders for loading, and for the cargo of guano, to be paid by charterer or his agent there."

8th. "On the vessel being loaded, the captain shall sail immediately, bound direct to Hampton Roads; vessel to have the privilege of using Callao or Valparaiso for the purpose of shipping crew."

9th. "The charterer obligates himself [**3]  to pay to the captain or to his order, at the port of discharge, freight at the rate of $ 14 per ton of two thousand two hundred and forty pounds, nett English weight."

15th. "It is mutually agreed by parties that the lay days shall not exceed twenty-five, and the charterer, should he detain said vessel beyond the number of days named here, shall pay to the master or owners the sum of $ 30 per diem for every day's detention beyond the number, payable at the port of discharge by said charterer or his agent. It is also understood and agreed that both parties are bound to fulfil their own obligations, as herein specified, and the penalty from one party to the other, for the non-performance of the stipulations of this charter, are mutually agreed to be the sum of $ 3500, to be paid in cash."

The vessel arrived at San Francisco on the 7th of September 1852, and on the same day the captain received a copy of the above charter-party. He then discharged his cargo, shipped a crew for the voyage, and was ready to sail by the 14th of September, but having made diligent inquiry in person and by advertisement for some agent of the charterers, and finding none, and receiving no instructions,  [**4]  he discharged his crew, paying them a bonus, went to a notary on the 17th and made his protest, which was offered in evidence, and wrote to the plaintiffs, his owners, that he could find no agent for the charterers, and requested their directions.

On the 7th of October the captain received a letter of instructions from Benson, one of the charterers, dated New York, September 4th, directing him to proceed with the vessel "direct to the Lobos Islands, situated in or near latitude 6 [degrees] 59' south, and longitude 80 [degrees] 42' west, and report yourself to the agent acting there, Capt. Jas. C. Jewett, and in case of his absence, to Mr. A. B. Howe, or in the absence of these gentlemen, to Capt. John O. Calebs, and there load your ship with guano, and when fully laden, proceed immediately to your port of destination, as per bills of lading presented by the agent to you to be signed therefor, as for charter-party."

He then shipped a new crew, and sailed for the Lobos Islands on the 26th of October, in ballast. The captain states that after writing to his owners, as before stated, he waited at San Francisco as long as he did hoping to hear from them; that he should have [**5]  left between the 15th and 20th of October; that he had not got his crew shipped until the 18th, and not all then, and could not have got away before that time, nor have got any crew and got away before the 15th; that is, after he received the letter of instructions. He arrived at the Lobos Islands on the 13th of December, and was boarded by a Peruvian officer, who informed him that he would not be allowed to anchor, nor to go on shore; he found there no one claiming to act as agent for Benson and Trundy; Capt. Calebs arrived there the same morning, but claimed to give him no orders, and was himself ordered from the islands by the Peruvian officers.

On the same day the captain sailed for Callao, where he arrived on the 28th of December, and proceeded to Lima, where, having learned that Barreda & Brothers had, under the direction or permission of the Peruvian Government, taken at their charters the vessels which Benson & Trundy had chartered to the Lobos Islands, to load guano at the Chincha Islands, he chartered his vessel to them to load at the Chincha Islands. This charter-party, which was offered in evidence, is dated "Lima, December 31st, 1852," and stipulates for the payment [**6]  of freight at $ 14 per ton of twenty hundred nett weight of guano, custom-house weight, and there was this endorsement thereon: "N. B.--It is understood that an additional freight of six dollars per ton shall be paid to the ship, according to the stipulations agreed to between the Peruvian minister and the Government of the United States." This charter-party provides for twenty-five working days to be allowed the charterers for loading the ship, those of bad weather and unforeseen impediments excepted, and that the vessel shall return to Callao for her clearance.

He then sailed for the Chincha Islands, took in his cargo of guano, having thirty lay days there, and on the day he completed his loading, he received another charter-party to Barreda & Brothers, of Baltimore, at $ 15 per ton. This charter-party, which was also offered in evidence, is dated "New York, October 20th, 1852," and was made between Buck & Co., as agents of the owners of the barque, and Barreda & Brother, acting as agents for the Peruvian Government. It describes the vessel as "now on her way to San Francisco," and stipulates that she shall proceed with all convenient dispatch to the Chincha Islands, via Pisco,  [**7]  to load with guano, thence to return to Callao for her clearance, and thence to Hampton Roads; freight to be paid at the rate of $ 15 per ton, of twenty hundred pounds nett of guano, custom-house weights. This charter-party also provides for an allowance of twenty-five working days, to be allowed the charterers for loading, those of bad weather and unforeseen impediments excepted.

The captain then sailed for Callao, and thence, on the 14th of February, for Hampton Roads, and on his arrival there was ordered to proceed to Baltimore, which he did, and discharged his cargo of one hundred and ninety-five tons, and obtained from Barreda & Brothers, of Baltimore, $ 15 per ton only for freight, without any thing additional from the Peruvian Government. He agreed to deliver the cargo and settle the freight according to the charter-party of the 20th of October, and cancelled that of the 31st of December, and endorsed thereon a memorandum to that effect.

The expenses and charges proved by the captain, and claimed in his suit, were for seventy-six days' detention, at $ 30 per day, making $ 2280; cost of protest and advertisement at San Francisco, $ 27; commissions and port charges at [**8]  Callao and Lima, $ 448.50; bonus paid to crew discharged at San Francisco, $ 111; the crew shipped at San Francisco were shipped for the voyage home, touching at the Lobos Islands, but when the captain found he could not load at these islands, and proceeded to Callao, and was delayed there, a large part of this crew left the vessel, and he was obliged to ship new ones at higher wages, and to pay higher wages to those who stayed, to induce them to remain, and this difference in wages and the expenses in shipping, and some other items of expense, amounted to $ 250. These items made in all $ 3116.50. From this, deducting the $ 1 per ton excess of freight paid under the charter-party of the 20th of October, over that which was to have been paid under that of the 19th June, $ 196, leaves $ 2920.50, the amount claimed.

The plaintiffs asked the following instructions to the jury:

1st. That if the jury find the due execution of the charter-party of June 19th, offered in evidence; that the captain of the barque subscribed therein received it on his arrival at San Francisco, on the 7th of September; that he forthwith made diligent enquiry for the agent of the charterers, hiring, at [**9]  the same time, a crew for the intended voyage; that on or about the 7th of October, instructions were given to him by the letter of the 4th of September, offered in evidence; that he obeyed these instructions by sailing from San Francisco for the Lobos Islands, on the 26th of October; that he arrived at these islands on the 13th of December, and was there in readiness to receive cargo and sign bills of lading, as instructed by the letter of the 4th of September; that no cargo was offered to him; that no further instructions were there given to him, and that he was not even permitted to land by the Peruvian officers, then the facts here stated hypothetically being found by the jury, the court instructs them that the captain was at liberty to act according to his best judgment, for the interest of the charterers. And that if the jury further find that the captain left the Lobos Islands on the 13th of December; that he reached Callao on the 28th of December; that on the 31st of December he made the contract with Barreda & Brother, offered in evidence; that the captain proceeded at once to the Chincha Islands; that he loaded there with guano; that he returned thence to Callao, to clear [**10]  for the United States; that he sailed for the port of his destination on the 14th of February 1853, and that in making the contract with Barreda & Brother, of the 31st of December, as well as in going to Callao from the Lobos Islands, he acted in good faith, and that in proceeding to execute the contract of the 31st of December, he used due diligence and care, then, these additional facts being also found by the jury, the court instructs them that the plaintiffs are entitled to demurrage for every day's detention, after deducting twenty-five lay days from the time when the barque was ready to sail from San Francisco to the time of her final clearance at Callao for the port of her destination, excluding the time of sailing from San Francisco to the Lobos Islands, and that in estimating the demurrage, the amount of $ 30, stipulated in the charter party, is prima facie evidence of the sum proper to be allowed by them.

2nd. That if the jury find the facts stated hypothetically in the first prayer, in regard to the original charter party, the arrival of the barque at San Francisco, and the non-reception of instructions from the charterers until about the 7th of October, and further [**11]  find that the captain advertised to ascertain, if practicable, whether there was an agent of the charterers in San Francisco, and that he made the protest offered in evidence, and paid the sums of $ 7 and $ 20, respectively, as the cost for the advertisement and protest, then the costs therefor are properly chargeable to the defendants.

3rd. That if the jury find the facts referred to in the second prayer, touching the original charter-party, the arrival of the barque at San Francisco, and the non-reception of instructions, and further find that the captain hired a crew for the voyage indicated in this charter-party, and that in consequence of the non-reception of instructions for the period aforesaid, he discharged the same, and paid them a bonus of $ 111 on the occasion of their discharge, to be released from his contract with them, then such sum is properly chargeable to the defendants.

4th. That if the jury find that the captain, on receiving instructions, on or about the 7th of October, to proceed to the Lobos Islands, shipped a crew therefor and thence to the United States, and that this crew left him at Callao, on his going there from the Lobos Islands, as stated hypothetically [**12]  in the first prayer, on the plea that the voyage he was about to make was not the voyage they shipped for, and that, in consequence, the captain was obliged to ship a new crew, at an extra cost of $ 200, paid by him, then such sum is properly chargeable to the defendants.

5th. That if the jury find the facts stated hypothetically in the first prayer, and also find that the captain paid at Callao the sum of $ 448.50 for commissions and port charges on the visits of the barque to that port, then such sum is properly chargeable to the defendants, provided the jury believe that such payment was necessary, according to the regulations of the port at which they were paid.

6th. If the jury find the facts stated hypothetically in the first prayer, and also find that the barque, having sailed from Callao for the port of her destination on the 14th of February 1853, duly arrived in the port of Baltimore with the cargo taken on board at the Chincha Islands, under the charter-party of the 31st of December, and that Barreda & Brother, when requested to pay the freight of $ 14 stipulated therein, and the additional $ 6 provided for in the memorandum attached to and forming a part of this [**13]  charter-party, claimed the benefit of a charter-party between the same parties of a prior date, to wit, October 20th, stipulating for $ 15 per ton; and if the jury believe that such a charter-party was in fact made, then the captain was justified in settling with Barreda & Brother, according to the charter party of the 20th of October, at $ 15 per ton, and that having charged the defendants with the price per ton stipulated in the original charter-party, and with the items properly chargeable to them under the foregoing instructions, the defendants are entitled to be credited with the sum of $ 15 per ton only, as per the charter-party of the 20th of October, and not with $ 20 per ton, as per the charter-party of the 31st of December.

7th. And the court further instructs the jury that if they believe that the captain was ready to sail from San Francisco on the 17th of September, and received no orders from the charterers to that effect until the 7th of October, then the jury are at liberty to allow such sum less than $ 30 per diem for that interval as they may deem proper to compensate the plaintiffs for the damages sustained by them in consequence of the failure of defendants [**14]  to give instructions on the 17th of September, and till the 7th of October, excluding the sum of $ 111 heretofore allowed as damages consequent on the failure to give such instructions.

8th. If the jury believe, from the evidence, that the captain had a crew in readiness for the voyage contemplated in the charter-party, which he discharged in consequence of not having instructions, then the jury are at liberty to allow the plaintiff such damages as they may deem reasonable to compensate him for the delay at San Francisco, while engaged in shipping a crew and getting ready to sail, after he had received notice on the 7th of October.

The defendants then offered the following prayers:

1st. That by the charter-party for a breach of the stipulations of which this suit is brought, the defendants, after the vessel had discharged her outward cargo at San Francisco, and was ready to sail therefrom, were entitled to twenty-five days wherein to give orders or directions at that port to the master of the vessel to proceed on his voyage.

2nd. That no damage by way of demurrage can be claimed in this suit for any delay of the vessel, if the jury find any, at San Francisco, during [**15]  such time as the captain was waiting to procure a crew, or for advices from his owners.

3rd. That if they find that the plaintiffs, by themselves or their agents, entered into the three charter-parties of the 19th of June, 20th of October, and 31st of December 1852, given in evidence, and further find that the vessel sailed from Callao for the Chincha Islands, for a cargo of guano under the last of these charter-parties, and further find that on the day the said vessel had completed her loading at the Chincha Islands, the captain received from his owners a copy of the charter-party of the 20th of October, and then sailed for Callao, and thence to Baltimore, and there delivered his cargo to the Messrs. Barreda, and received payment from them, in conformity with the stipulations of the charter-party of the 20th of October, and in consideration thereof likewise cancelled, by agreement with Messrs. Barreda, the charter-party of the 31st of December, and thus deprived the vessel from earning the sum of $ 20 per ton under the last mentioned charter-party, then the profits which the jury may find the plaintiffs might have earned by this last mentioned charter-party, over and above the [**16]  profits which they could have earned by the charter-party made with the defendants of the 19th of June, are to be deducted from any claim for damages which the jury may find the plaintiffs have against the defendants for a non-compliance with the charter-party of the 19th of June.

4th. That no damage can be recovered by the plaintiffs for any delay of the vessel occurring after the execution of the charter-party of the 20th of October, if the jury find the execution of such charter-party.

5th. That no damages can be recovered by the plaintiffs for any delay of the vessel previous to the execution of the charter-party of October 20th, given in evidence, if the jury find that the same was duly executed on that day, except for such delay, if any, as may have occurred by reason of the detention of the vessel at San Francisco, after she had there discharged her outward cargo, and while she was there waiting for orders from the defendants or their agent, and that, under the charter-party of the 19th of June, the plaintiffs were bound to have a crew ready, so that the vessel could sail as soon as she discharged her outward cargo, and received such instructions.

6th. That if [**17]  they find the facts stated in the defendants' 3rd prayer, and further find that the twenty-five lay days had not run out between the time that the jury shall find that the vessel had discharged her outward cargo at San Francisco, and was ready to sail upon the voyage mentioned in the charter-party of the 19th of June, and the time when the jury shall find that the master of the vessel received instructions from the defendants to proceed upon said voyage, and shall further find that after this last named period the vessel was delayed at San Francisco, either to ship a crew or to await instructions from the owners, until after the 20th of October, and that the said vessel subsequently sailed upon the voyages mentioned in the testimony of the captain, then the plaintiffs are not entitled to recover.

7th. That the plaintiffs cannot recover any demurrage for any part of the voyage between the Lobos Islands and Callao which the jury may find was no loss to the vessel in performing the voyage contracted for under the charter-party of the 19th of June.

The court (FRICK, J.) granted all the plaintiffs' prayers except the sixth, which was rejected, and also granted the second and third [**18]  prayers of the defendants, but rejected the others, the seventh being rejected "for want of evidence applicable to the prayer." The defendants excepted to the granting of each of the prayers of the plaintiffs which were granted, and to the refusal to grant each of their own prayers which were rejected.

Plaintiffs' Exception. The plaintiffs excepted to the refusal of the court to grant their sixth prayer, and to the granting of the defendants' second and third prayers.

The verdict was in favor of the plaintiffs for $ 1326.79, and from the judgment thereon the defendants appealed.  

DISPOSITION:
Judgment affirmed.  

HEADNOTES:

Under a charter-party which contemplated that the vessel should proceed to the Lobos Islands for a cargo of guano, the contract is not dissolved, nor the charterer excused from liability to the owners for its non-performance, by the fact that the Peruvian Government refused to permit the vessel to anchor or take guano from these islands, there being no saving clause in the contract to meet such a contingency.

Where the charter-party does not provide against such a contingency as the prohibition by a foreign government of the exportation of the stipulated cargo, the contract is not dissolved, nor is the charterer excused for not performing it, but must answer in damages.

In an action for damages for the violation of a charter-party by the freighter, in not supplying a cargo, the law leaves the amount to be ascertained by a jury, according to the liberal principles of interpretation usually applied to commercial contracts, upon consideration of all the circumstances, and of the real injury sustained by the owners.

Where the claim for damages arose from the default of the charterers, first in delaying to send orders to the captain, as provided for in the charter-party, and then in not furnishing the freight at the stipulated port, they must make good any loss that may be fairly attributed to such default.

The vessel having arrived, as directed by the charterers, at the Lobos Islands, for a cargo of guano, and being ordered off by the officers of the Peruvian Government, the captain was at liberty to act upon his best judgment for the interest of all concerned, and obtain a cargo at another place, and was, therefore, right in sailing to Callao and Lima, and there chartering the vessel for freight.

A captain must not immediately come home without endeavors to freight his vessel, nor remain the whole time appointed, and charge the freighter with demurrage; he must use efforts to make the vessel earn as much freight as he can, so as to diminish the loss to the party who may ultimately suffer by the failure to obtain the stipulated cargo.

The owners are entitled to recover for delay caused by the failure of the charterer to furnish orders for the prosecution of the voyage, as provided in the contract, and for the loss of time occasioned by a new voyage undertaken by the captain, acting in good faith, and with due diligence and care, upon being unable to obtain the stipulated cargo.

In estimating the damage for such delay and loss of time, the sum agreed upon in the charter-party as demurrage, may be left to the jury as prima facie evidence; such a criterion is adopted as a rule of convenience and justice, open however to the owner to show there was more, and to the freighter that there was less, damage sustained.

A charter-party provided in one clause that the cargo was to be received "within twenty-five running days, exclusive of Sundays," and that the lay days shall be counted from the time the vessel is ready to receive cargo, and in another "that the lay days shall not exceed twenty-five." HELD:

That the lay days excluded Sundays, and the same allowance must be made for such lay days in reference to the new voyage undertaken by the captain, upon being unable to procure the cargo at the port stipulated in the charter-party.

A substitution, by mutual consent, of a new port for that named in the charter-party, without mention of lay days, will not affect the lay days stipulated for in the original contract.

The Appellate Court will not reverse an instruction granted to the appellees, because of an objection, the benefit of which was obtained by the appellants, in the granting of a prayer offered by them.

The charterers not furnishing instructions, as provided for in the charter-party, when the vessel was ready to sail, expenses incurred by the captain in advertising for the agent of the charterers, and the cost of a protest therefor, must be paid by the charterers, such expenses not being covered by demurrage.

Demurrage includes the hire and maintenance of the crew, and if the captain, in the exercise of his discretion, discharges the crew, paying them a bonus for releasing him from his contract, the owners cannot claim the sum so paid, in addition to the demurrage.

Expenses incurred by the captain in discharging his crew, and shipping another for the new voyage, and the port charges incurred in the prosecution of such voyage, undertaken by the captain for the benefit in part of the charterers, and by reason of their default, must be paid by them, and are not covered by demurrage.

Damages sustained by delay, incurred by reason of the failure of the charterers to furnish instructions, as provided in the charter-party, and by the discharge of the crew, in consequence of not receiving such instructions when the vessel was ready to sail, are covered by demurrage, and cannot be allowed in addition thereto.

Where a charter-party provides that the cargo is to be received in twenty-five running days, such lay days are to be allowed for loading, and not for orders after the vessel was ready to sail on the voyage.

The fact that the owners executed a second charter-party after default made by the charterer under a prior one, cannot discharge him from all the consequences of his own violation of contract previously committed.

After default made by the charterer, the owners have the right to make another charter, to save themselves, and thereby benefit the charterer, and the mere execution of another charter cannot have the effect either of releasing the first, or of reducing the amount of damages for a breach thereof.

Where a new voyage is undertaken by the captain, upon failure to obtain the stipulated cargo, the charterers ought not to be charged with demurrage for the time consumed in the prosecution of such new voyage in bringing the vessel nearer home, which would have been consumed in performing the original voyage.

For the reversal of a judgment, the Appellate Court must confine itself to the exceptions taken by the appellant, but in finally disposing of the case, it may look to the rulings of the court below, on exceptions tendered by the appellee, and appearing in the record, though it cannot reverse the judgment for his benefit, he not having appealed.

Nor will the Appellate Court reverse a judgment upon the appellant's exceptions, where it can see that he will not be benefited by a new trial.

Where the amount of the verdict on a new trial is a mere matter of figures on written evidence, and nothing on that point would be left for the jury, and by such result the appellant would not be benefited, the Appellate Court may decide the question of amounts, and let the judgment stand.  

COUNSEL:
Stewart Brown and Frederick W. Brune, for the appellants:

The court will bear in mind, as part of the public history of our country, and in connection with the other facts of this case, that on the 5th of June 1852, Mr. Webster, as Secretary of State, wrote his famous letter of that date to Capt. James W. Jewett, who appears in this record as one of the securities in the bond under which the attachment was dissolved, and who wrote to him to inquire whether citizens of the United States could take guano from the Lobos Islands, without infringing upon the rights of the [**19]  citizens, or subjects, or government of any other nation. Mr. Webster's letter thus concludes: "Under these circumstances it may be considered the duty of this government to protect citizens of the United States who may visit the Lobos Islands for the purpose of obtaining guano. This duty will be the more apparent when it is considered that the consumers of Chincha Island guano in this country might probably obtain it for half the price they now pay, were it not for the charges of the Peruvian Government. I shall, consequently, communicate a copy of this letter to the Secretary of the Navy, and suggest that a vessel of war be ordered to repair to the Lobos Islands, for the purpose of protecting from molestation any of our citizens who may wish to take guano from them." In consequence of this communication from the Secretary of State, Mr. Graham, Secretary of the Navy, on the 16th of June 1852, instructed Com. McCauley, commanding the Pacific squadron, to send a vessel of his squadron to the Lobos Islands, for the protection of the citizens and commerce of the United States. On the 21st of August, Mr. Webster, having changed his views, wrote his letter of that date to Mr. Osma, the [**20]  Peruvian minister, which concludes thus: "No countenance will be given to the authors of such enterprises, claiming to be citizens of the United States, who may undertake to defend themselves by force, in the prosecution of any commercial enterprises to these islands. Such acts would be acts of private war, and their authors would thereby justly forfeit the protection of their own government." And on the 25th of the same month, Mr. Kennedy, Secretary of the Navy, wrote to Com. McCauley, suspending the order of the 16th of June, and requiring him to abstain from aiding or abetting any citizen of the United States who may forcibly resist the execution of the laws of Peru, by the authority of that government. These letters and instructions were public acts of the government of the United States, and are within the judicial knowledge of the court. 1 Greenlf. on Ev., sec. 479. They are embodied in the memorial of Benson, one of the appellants, presenting his case to Congress, and claiming compensation for his losses in this adventure, which memorial, for convenience of reference, we leave with the court.

In granting the appellees' first prayer, the court instructed the jury that if [**21]  they found the facts set out in it, the plaintiffs were not only entitled to recover, but, as a matter of law, were entitled to demurrage for every day's detention from the time the vessel was ready to sail from San Francisco, to the time of her final clearance at Callao for her port of destination, after deducting twenty-five lay days, and the time consumed in the voyage from San Francisco to the Lobos Islands, and that in estimating the demurrage, the amount of $ 30 stipulated in the charter-party is prima facie evidence of the sum proper to be allowed. It does not submit to the jury any facts excusing or explaining the delay of the captain of the vessel in sailing from San Francisco, from his arrival there on the 4th of September, until the 26th of October, except the facts that he made diligent inquiry for the agents of the charterers, and the receipt of the instructions of the 4th of September on the 7th of October. It does not require the jury to find the non-discovery of the agents of the charterers, nor the non-receipt of other instructions; nor does it even require them to find the time of the discharge of cargo at San Francisco, while the charter-party stipulates that the [**22]  vessel shall sail immediately as soon as she has discharged her cargo, to a guano island, as he shall be directed. It also submits that the captain left the day of his arrival at the Lobos Islands, and submits that he was, while there, ready to receive cargo, but received neither cargo nor instructions, and was prohibited from landing, but it does not require the jury to find that no cargo would have been furnished at the Lobos Islands, if there had been no improper delay on the vessel's part at San Francisco, or if she had stayed out her lay days at the Lobos Islands, or had gone to an adjacent island. The proof is, that the captain obtained a more advantageous freight on account of the charterers at the Chinchas, while the prayer does not call on the jury to find that the Chinchas are not adjacent islands to the Lobos, within the meaning of the charter-party. The prayer also assumes, that under the facts submitted to the jury, it was not necessary that the master should report to Capt. Calebs, mentioned in the letter of September 4th, although it appears he was at the Lobos Islands when the vessel arrived, or notify him of his readiness to load there, or to seek cargo at an adjacent [**23]  island, in compliance with the stipulations in the 1st, 2nd and 4th articles of the charter-party; and under this prayer the court further instructed them that the plaintiffs were entitled to recover, notwithstanding the jury might find all the other facts appearing in the record, or properly within the judicial knowledge of the court, the most important of which are:

1st. The change of views and instructions on the part of the Government of the United States, which appears from the State papers already referred to. According to the letter of the Secretary, of June 5th, the charter-party of the 19th of June was a legal contract, while under that of the 21st of August, the contract is declared illegal, and the prosecution of it, if persisted in, an act of private war.

2nd. The charter-party of the 20th of October, and all the circumstances which followed it, viz: the performance of the voyage described in it, the delivery of the cargo to the charterers under it, the receipt of the freight money stipulated in it, and, in consideration of this, the cancellation of a subsequent charter-party made for the benefit of the appellants, and the release of all claim thereunder. The [**24]  contract of the 20th of October was not a contract made in subordination to that of the 19th of June, because it does not refer to the previous charter, or any breach under it, but contracts to charter the vessel while on her way to San Francisco, and to proceed from that port with all convenient dispatch to the Chincha Islands, via Pisco.

This prayer further fixes the damages which the appellees are entitled to recover, and declares these to be a per diem allowance from the 17th of September to the 14th of February, after deducting the period of the voyage from San Francisco to the Lobos Islands, and twenty-five lay days only, while the charter-party allows $ 30 per day demurrage only, in the event of her staying over her lay days at the Lobos Islands, where she was to load. The prayer further fixes the lay days at twenty-five, while the charter-party allows twenty-five days exclusive of Sundays, which will give four days more, or twenty-nine in all. Under this prayer, and the refusal of the appellants' 7th prayer, the court below refused to make any deduction from the fixed rate of demurrage for such part, if any, of the voyage between the Lobos Islands and Callao as the jury [**25]  might find would have been no loss to the vessel in performing the voyage under the original charter-party.

In granting the other prayers of the appellees, the court below allowed them to recover all the items of damage mentioned in those several prayers, in addition to the demurrage allowed in the first prayer, while the appellants contend that where a plaintiff is allowed to recover demurrage as stipulated damages, it must be on the ground that it covers all the damages to which the defendant can be liable. The 2nd, 3rd, 7th and 8th prayers, refer to the damages which the appellees incurred at San Francisco, and for which the appellants were held liable, and are all additional to the demurrage allowed at San Francisco under the 1st prayer. These items are under the 1st prayer; cost of protest and advertisement which are a proper claim for damages on account of detention unless covered by the demurrage: under the 2nd prayer the bonus for discharging a crew. This was an improper allowance even as damages for detention, unless it could be shown that it diminished the claim for damages, being less than the wages of the same crew during the improper detention, for under the charter-party,  [**26]  the vessel was bound to be ready with a crew to sail for the Lobos Islands, as soon as the outward cargo was discharged if the charterers should so direct; but this allowance is entirely indefensible if demurrage is already allowed, for a stipulated demurrage for detention with a cargo on board, must include the hire of a crew when the charter-party requires one to be on board.

The damages allowed in the 7th prayer are still more indefensible, for by the 1st prayer the appellees were allowed demurrage for the period at San Francisco, between the 17th of September and the 7th of October; and under the 2nd and 3rd prayers were allowed special damages incurred during that period, and yet the 7th prayer allows further damages less than $ 30 per day, after excluding one of the items of special damage already allowed. The 8th prayer proceeds upon the ground, that although under the appellants' 2nd prayer which was granted, the appellees were not entitled to damage by way of demurrage, for delay while they were engaged in shipping a crew at San Francisco, yet under the 8th prayer the court in effect held, that the appellees were not bound to have a crew in readiness to await instructions,  [**27]  but on not receiving instructions, the captain was not only entitled to discharge them and take time to get another crew after the receipt of instructions, but was likewise entitled to damages for the delay in procuring a new crew.

The 4th and 5th prayers allow special damages incurred after the arrival at the Lobos Islands, in addition to the demurrage which is allowed under the third prayer down to the final clearance at Callao. The damages allowed under the 4th and 5th prayers, are proper charges against the defendants, when the plaintiffs are called on to allow the amount of their earnings under a subsequent voyage in deduction of their claim against the defendants, but these as well as the items of damages previously referred to, seem to be embraced within the stipulated demurrage when properly allowed. To earn the freight as well as the demurrage stipulated in the charter-party, the plaintiffs were bound to have a crew on board at all times, and the 8th article of the charter-party concedes the privilege to the ship owner to go to Callao and Valparaiso to ship a crew without being chargeable with an improper detention.

The only questions of interest presented by the [**28]  defendants' prayers, in addition to those already adverted to in considering the instructions granted for the plaintiffs, are those raised under the defendants' 4th and 6th prayers, which decide that the execution of the charter party of the 20th of October did not release damages for any detention after that period, nor did the execution of that contract with the other facts contained in the 3rd and 6th prayers of the defendants, prevent the plaintiffs recovery in that case. The appellants therefore contend:

1st. That while the letter of Mr. Secretary Webster, of June 13th, the plaintiffs and defendants were perhaps authorised to make the charter-party of the 19th of June having reference to the Lobos Islands under it, yet after the letter of the 21st of August, it became illegal to execute said contract, and the defendants were excused for not furnishing a cargo at said islands; Parsons Mercantile Law, 365, 366, and cases cited; 3 Kent, 248, 249, and cases cited; 10 East, 534, Atkinson vs. Richie; 2 Johns., 336, Scott vs. Libby.

2nd. That by reason of the execution of the charter party of the 20th of October, and the prosecution of the voyage, the delivery of cargo, and [**29]  earning of freight under it, and the consequent cancellation of the charter-party of the 31st of December, made for the benefit of the appellants, the appellees abandoned the charter-party of the 19th of June, and released the appellants for all damages for any breach under it. 1 Gill 311, Howard vs. Wilmington & Susq. Rail Road Co. 9 Gill 293, Rodemer vs. Hazlehurst. 2 Parsons on Cont., 187, 188, 190, 191, and cases cited. 4 Wend., 289, Dubois vs. Delaware & Hudson Canal Co. 2 Barn. & Adol., 303, 308, Robson vs. Drummond. 9 Adol. & Ellis, 550, 553, Amor vs. Fearon. 20 Eng. Law & Eq. Rep., 157, Hochster vs. De Latour.

3rd. That if the appellants were bound by the charter-party of the 19th of June, to furnish a cargo at the Lobos Islands, and the charter party of the 20th of October did not discharge them from their liability, then they contend, that the appellees' right to recover is limited to the freight stipulated in the charter-party, and damages, if any, to be found by the jury for any improper detention of the vessel at San Francisco, but as the vessel did not use the lay days at the Lobos Islands, but left the day of arrival, the appellants should be allowed these [**30]  days at San Francisco, and if the time beyond these lay days consumed by the captain in San Francisco, was to hire a crew or wait for instructions from his owners, to be found by the jury, the appellees are entitled to no damages for the detention at San Francisco. 3 Selden, 262, Ashburner vs. Butcher. 4 Binney, 308, Lee Comb vs. Waln. 7 Bing., 559, Brereton vs. Chapman. 2 Smith's Lead. Cases, (Am. Notes,) 41, 42, 51, and cases cited.

4th. That before the appellees can recover the freight and damages stated in the third point, they were bound to earn all the freight they could for the benefit of the charterers, and having, under the charter-party of the 31st of December, obtained a valid contract for $ 6 dollars per ton more than the freight stipulated in the charter-party with the appellants, they cannot recover more than nominal damages, unless the jury should find that the damages legally recoverable for any improper detention at San Francisco, together with the cost of the voyage to the Chincha Islands, over and above the voyage covered by the charter-party with the appellants exceeded the sum of $ 1170, which was the excess of freight stipulated under the charter-party of [**31]  the 31st of December, and earned by the ship over the freight payable under the charter-party of the 19th of June. And in estimating the cost of the voyage to the Chincha Islands, the jury should consider whether part of the time consumed in going from the Lobos Islands to Callao, was not employed in bringing the vessel nearer home on the voyage under the original charter party. Abbott on Shipping, 707. 1 Car. & Kir., 686, Harries vs. Edmonds. 7 Bing., 169, Staniforth vs. Lyall. 24 Wend., 304, 310, 313, Heckscher vs. McCrea. 3 Gray, 94 to 97, Bailey, et al., vs. Damon, et al. May's Law of Damages, 145, 149.

5th. The appellees are not entitled to claim the stipulated demurrage of $ 30, for a single day, for this demurrage was agreed to be paid for any delay after the lay days at the Lobos Islands, the place of loading, while the vessel did not even come to an anchor there. 17 Barb., 190, 191, Clendaniel vs. Tuckerman. 10 Mees. & Wels., 502, Kell vs. Anderson. 9 Car. & Payne, 709, Horn vs. Bensusan. 16 Mees. & Wels., 829, Cropton vs. Pickernell. 9 Leigh., 543, 547, Brown vs. Ralston.

6th. The lay days were to be twenty-five days exclusive of Sundays, or twenty-nine working [**32]  days.

7th. It was one of the appellees' stipulations under the charter-party of the 19th of June, to have a crew as well as captain and vessel to perform the voyages stipulated.

A. S. Ridgely and C. J. M. Gwinn for the appellees:

At the outset let us recur to the charter-party of June 19th 1852, in order that we may more fitly apply the law. Under this charter-party, the vessel chartered being then upon a voyage from Frankfort to San Francisco, we need scarcely say, that the voyage for which she was chartered by Benson and Trundy, legitimately commenced at the time the outward cargo was discharged at San Francisco, (32 Eng. Law & Eq. Rep., 612, Bruce vs. Nicolopulo,) and when she was ready to sail. From the date therefore of September 14th, 1852, when the vessel was prepared to set out from San Francisco the contract attached.

The appellants seem to be under the impression, if we may judge from their first prayer, (which was rejected,) that even if it be admitted, that their responsibility as charterers properly commenced at this date, yet they were entitled to the computation of the allowance of the stipulated lay days, from the said 14th of September 1852. In [**33]  this view of their cause, they have confounded their responsibility for the breach of that part of their contract, which stipulated that the vessel should sail as soon as she had discharged her outward cargo at San Francisco, (in the breach of which the claim for demurrage arose,) with their responsibility not to exceed the number of twenty-five days in lading or in lay days generally; whereas the true construction of this charter is, that the twenty-five lay days were to be allowed for the loading of the vessel, and as this loading could only take place at the guano islands under the charter-party, it cannot be conceived that there is any thing in the 4th article which entitles the appellants to claim the benefit of these lay days at San Francisco. It was the claim for demurrage or for damages in the nature of demurrage, that began at San Francisco and not the lay days. The term "demurrage," used in the first prayer, is wholly consistent with this view. It is used as the term is used in all the treatises which describe demurrage as a detention of the vessel beyond the time stipulated for the voyage. It applies as well to the loss of time at the commencement of a voyage as in its progress,  [**34]  and a claim for demurrage may arise--be suspended by lay days--and again continue. And even if it were true, that under the terms of this charter-party, the action quoad the period of time before the actual voyage from San Francisco commenced, was for damages in the nature of demurrage, (and to be so construed by the court, in order to give effect under the agreement to waive errors in pleading,) yet the language of the prayer describing it as "demurrage," is not so far a departure from technical language as to make it an error in the appellees' first prayer. For the prayer does not resort to the charter-party as an absolute measure of damages, but as a mode of estimating demurrage or damage, for in this case these are convertible terms. Nor is there any thing in the 15th article, which gives the 4th a different construction. The two clauses must be construed together, and the 15th is but the exclusion of any conclusion that a longer number of lay days shall be enjoyed by the charterers than that provided for in the 4th article. The 15th does not modify the express words of the 4th, that the lay days were to be counted from the time the vessel was ready to receive cargo at the islands.  [**35]  

But the vessel having started upon her voyage, and having arrived at the Lobos Islands, what was the condition of the parties? The charter-party of the 19th of June, means nothing, if its first clause is not to be understood as imposing upon the charterers the obligation to provide a full freight of guano, at the islands where the vessel was to proceed. This obligation was the very life of the contract. The compensation to the owners, for the employment of their ship, was to be derived from the sum paid for the transport of the cargo, and if the cargo was not in readiness the contract was broken. 1 Pet. Adm. Dec., 207, Giles vs. Brig Cynthia. 2 Gallison, 73 to 75, Kleine vs. Catara. 4 Wash. C. C. Rep., 123, Palmer vs. Gracie. 30 Eng. Law & Eq. Rep., 319, Schillizzi vs. Derry. Nor was there any proviso in the contract, which affords any relief to the charterers on account of the refusal of the Peruvian Government to allow the vessel to be loaded at the Lobos Islands. The charter-party does not contain the proviso of "the restraints of princes and rulers excepted," which induced the court in the case of Bruce vs. Nicolopulo, to give judgment against the ship-owners on a plea setting [**36]  forth such restraints. This charter-party is an absolute contract to load, made by those, who, having a right to protect themselves by qualifications of their agreement, if they had chosen to do so, (if the charterers had chosen to accept such a qualified agreement,) yet made it without qualifications, and so induced the owners of the vessel to enter upon it. He who selects the adventure must be held to see that he selects it with good reasons, and, deriving the profits from the venture, if it is successful, he must bear any losses which occur by reason of regulations of trade at his port of loading, whether known to him or not. If he covenants, in a word, to furnish a lading to a ship in a foreign port, the prohibition of the government to export the intended article, neither dissolves the contract nor excuses a non-performance of it. 3 Maule. & Selw., 267, Barker vs. Hodgson. Abbott on Shipping, 411, 742, (7th Am. Ed.,) marginal page, 308. 2 Camp., 352, Randall vs. Lynch, and same case in 12 East., 180. 36 Eng. Law & Eq. Rep., 299, Hurst vs. Usborne. 3 Bos. & Pull., 295, Bright vs. Page. 16 East., 205, Syverds vs. Luscombe. The appellants indeed take a different view of the case.  [**37]  They contend that the letter of Mr. Webster, as Secretary of State, to Capt. Jewett, was a public act of the government of the United States, and that as such public act, it is within the judicial knowledge of this court, and that it, of itself, made the charter-party of June 19th legal. And they also say, that when the subsequent letter of Mr. Webster to Mr. Osma, the Peruvian minister, appeared, (which it is also contended is within the judicial knowledge of the court,) the voyage then became illegal, and the charterers were justified in abandoning it. The appellees dissent from all this reasoning. They admit the rule of law to be, "that courts will judicially take notice of the political constitution or frame of government of their own country; its essential political agents or officers, and its essential, ordinary and regular operations," (1 Greenlf. on Ev., sec. 479,) but it is submitted, that the action of the government, even had it taken the form alleged by the appellants, does not come within the letter or spirit of this rule. It is going very far to consider the letter written by a Secretary of State, giving an opinion as to the rights of our citizens on a foreign soil a [**38]  public act at all. But if it had a quasi character of this nature, and if the order given to the American squadron, in conformity with this opinion, were to be so regarded, yet it is clear that neither the one nor the other, are so far public acts, in the sense of the rule cited as to dispense with proof. Surely the letter or instructions, if they were written or given, are not more acts of State than proclamations for reprisals, or for a public peace, or than articles of war. Yet it has never been contended, that these were within the judicial knowledge of a court and need not be proved. On the contrary, all that has been decided is, that they could be proved by testimony differing in character from that which would establish private acts. The official gazette, or acts of Parliament, or acts of Congress, or copies issued by a printer for the government, regularly appointed, are made evidence, but evidence must be adduced before the court. 5 Term Rep., 443, Rex vs. Holt. 7 Johns., 50, Radcliff vs. United Ins. Co. 8 Price, 89, Atty. Gen. vs. Theakstone. 2 Phillips on Ev., 108, (Ed. of 1849). 16 Pet., 55, 56, Watkins vs. Holman. But independently of the view here taken, that such acts,  [**39]  even if acts of State, required some form of proof, it is submitted, that even if the court below had been competent to make such acts the basis of its instructions when no proof had been adduced, on the theory that they were within the judicial knowledge of the court, it is not competent for the Court of Appeals to assume the matters stated in the argument of counsel, as facts proper to influence their judgment. This court is restrained by acts of Assembly to the revision of the record before it, and if counsel have for any reason omitted to embody in the record such statements of public acts offered in evidence below, or not offered, as might have been sufficient to bring them before the Court of Appeals for its judicial cognizance, they cannot avail themselves of them there. The prayers of the appellants do not present in specified shape the views of the counsel, for the reason, as it is supposed, that these facts were not relied on below. Certainly no copy of a memorial of a citizen, whether a party to this cause or not, which purports to set forth as a part of his case certain papers to which official names are appended, can be properly read in the hearing of this court; for the [**40]  paper printed by a private person, has not the sanction of authority in any shape, to show that the copies it sets forth are accurately transcribed, or indeed ever existed.

But passing by this point. The vessel being at a great distance from the control of the charterers, it became the duty of the captain, who was the agent of the charterers no less than of the owners, (Abbott on Shipping, 478; 1 Story's C. C. Rep., 353, Jordan vs. Warren Ins. Co.,) acting in good faith, to employ his vessel so as to save the charterers from loss upon their contract of the 19th of June. 4 Wash. C. C. Rep., 123, Palmer vs. Gracie. But by the charter-party, the owners of the ship were entitled to demand of the charterers, that they should consume no more of the vessel's time than was necessary to sail from San Francisco to the Lobos Islands, to lade the vessel, and to return to Callao, to clear, and thence to the United States; so it follows, that if the captain, acting in good faith as the agent of the charterers, was obliged, in order to prevent a total loss to the charterers, to employ her a longer time than was necessary to accomplish this result, the charterers were liable to pay demurrage [**41]  for this excess of time. The measure of this demurrage is precisely stated in the appellees' first prayer. In a word, the appellants are properly responsible for the excess of time legitimately spent in the voyage made for their protection, over the time which would have been spent if the voyage had been made according to the contract.

It is submitted, that it was not necessary to require the jury to find, in the first prayer of the appellees, the non-discovery of the agents of the appellants at San Francisco. The prayer states the fact of diligent inquiry made for the agent of the charterers, and the fact of the protest of the 17th of September. It was not, perhaps, even necessary that the plaintiff below should show that he had used diligence to find the charterers, since by the charter-party he was subject to the orders of the charterers' agents, when he was ready to sail. They were bound to take control of him, not he to search for them, and the claim for demurrage commenced, not when the captain was unable to discover who were to control his voyage, but when they were instrumental in the delay in not controlling his voyage. And it is also submitted, that the prayer is not [**42]  wrong, because it submits to the jury to find, that the captain hired a crew at San Francisco; for this fact is but an element in the proof of readiness for the voyage, which, though not stipulated for in the charter-party, was yet made necessary for the execution of the contract of the charter-party. Nor is the prayer in error in what relates to events at the Lobos Islands. The jury could not have been called on to say that something might perhaps have been done at the Lobos Islands, if something had not been done at San Francisco. They were only authorized to find what was done at San Francisco, and what was done at the Lobos Islands. These facts being found the court applied the law. It is quite certain, that in the absence of instructions, as to the islands he was to proceed to from the Lobos Islands, the captain was not obliged to go about looking for "an adjacent island," as the argument of the appellants seems to assume, when no instructions were given, as was directly contemplated by the charter-party. The letter of instructions did not require any further report to Captain Calebs than was made by the presence of the vessel at the islands. It was the duty of the charterer to [**43]  see that his agents assumed their authority when the subject of the agency was within his jurisdiction. The charter-party contemplated no more than this. Abbott on Shipping, 414. 4 Camp., 159, Harman vs. Clarke. Ibid., 161, Harman vs. Mant.

The second, third, fourth, fifth, seventh and eighth prayers of the appellees were based upon the assumption of the liability of the appellants for expenses named. By the second, this liability was for the cost of protest and advertisement made necessary by the default of the charterers in not providing some person at San Francisco, who was authorized to give the necessary orders for the sailing of the vessel. By the third, it was for the expenses incurred in paying off the crew, which the master was bound, by the terms of the charter-party, to have in readiness when his cargo was discharged at San Francisco, and which, having engaged in order to fulfil his obligation, he was obliged to discharge afterwards as a necessary measure of prudence and economy, through the default of the charterers. By the fourth, it was for expenses incurred in shipping a new crew at Callao, because of his inability to oblige those whom he had shipped at San Francisco,  [**44]  to go on a different voyage from that for which they had shipped. This different voyage being a necessity imposed upon the captain, in his capacity as agent for owners and charterers, by reason of the failure of the latter to give him freight at the Lobos Islands, which would have enabled him to employ the seamen shipped at San Francisco, in the voyage which they had agreed to undertake. By the fifth, it was for commissions and port charges incurred in Callao, to which port he sailed in order to procure employment for his vessel, when he was deprived, by the default of the charterers, of the freight which had been contracted to be given at the Lobos Islands, and which port he would not, under the terms of his charter-party of the 19th of June, have been obliged to visit, if this contract of affreightment had been fulfilled by the charterers.

The seventh prayer is based on the reasoning given in the consideration of the first. It is not necessary to say more than that the vessel being ready to commence her voyage, and being at the disposition of the charterers when she was in readiness to sail, her detention, through their default, until the 7th of October, was a damage to the [**45]  owners for which the court was right in directing the jury to give them compensation. The eighth prayer is based upon the proposition, that the expenses incurred by the appellees, after the 7th of October, when the orders to proceed to the Lobos Islands were received were properly chargeable to the appellants, because such expenses were the result of the failure of the appellants to give proper orders to the captain of the vessel, on her being in readiness, to proceed to sea from San Francisco. For the crew being discharged by the captain, in his capacity as agent for all concerned, for reasons of obvious economy, the owners are entitled to be reimbursed those expenses which were incurred after the 7th of October, while the crew were being shipped and the vessel made ready to sail; these expenses being damages growing out of the detention and inseparably connected with it. The damages claimed in the seventh prayer rests upon the technical possession of the vessel by the appellants, from the 17th of September, when she was ready to sail, according to the terms of the charter-party. The damages claimed in the eighth prayer rests also upon the liability of the charterers for the expenses [**46]  made necessary by their default. These items are not in addition to the claim of liability in the first prayer. They are but the particular statement of the liability which the first prayer asserts.

What has been said sufficiently covers the points disclosed by the appellees' prayers, and it is now proper to discuss the rejected prayers of the appellants.

Their first prayer has already been discussed in connection with the argument on our first. Their fourth was properly rejected, because it either assumes that the charter-party of the 20th of October, superseded that of the 19th of June, and so liberated the appellants from all responsibility under the charter-party made with them; or else it assumes, that if it did not so free them, it yet released them from all damages resulting from the delay of the vessel, after its execution. The prayer is wrong, because, as a proposition of law, it is not true, that the charter-party of the 20th of October, was a rescission of that of the 19th of June. The owners and the charterers were alike bound by the charter-party of the 19th of June, and neither party to that contract was competent to abrogate it, without the consent of the other.  [**47]  We do not mean to be understood as saying, that no circumstance, in the dealing of the owners of a ship with the charterers, will amount to a rescission of a contract, of which the charterers can take advantage, but we do mean to say, that no such circumstance existed in this case, and that the charterers especially were prevented from treating this contract as rescinded, after the 20th of October, because having themselves been guilty of the default at San Francisco, they cannot take advantage of their own wrong to defeat the contract. 2 Parson's on Cont., 191.

The appellants cannot claim when they obliged the owners of the vessel, by the default which took place at the Lobos Islands, to seek a cargo elsewhere; that the undertaking, on the part of the owners, to load a ship thus left unemployed, in distant seas, was an abandonment of the rights which accrued to them, under a contract which they had, on their part, endeavored faithfully to execute. The charter-party of the 20th of October, was one made by the owners in subordination to the relations already entered into between them and the charterers, in order to their own protection and to the protection of the charterers. When [**48]  the captain communicated to the owners, by letter from San Francisco, that he had found no agent of the charterers at that place, the owners were authorized, as the captain was, to make arrangements for the use of the vessel, "and ought not sullenly" to have suffered the vessel to depart from San Francisco on her return to New York, in order to charge the charterers with the whole penalty of the charter-party. Abbott on Shipping, 742. 3 Bos. & Pul., 295, note (a,) Bright, et al., vs. Page. Therefore the chartering of the vessel by the charter-party, of the 20th of October, was not a rescission of the contract of the 19th of June, but was, in fact, a contract made, as we have said, in subordination to it, and for the advantage of the parties to it, and was such a contract as the necessities of the case imposed upon the owners. The delays of the vessel, after the 20th of October, were properly chargeable as damages, even after the execution of this last charter-party, because these delays were the result of the original breach, even if they occurred in the execution of another agreement.

Their fifth prayer is wrong for the reason that it assumes an obligation, on the owners of the [**49]  vessel, to keep a crew in instant readiness to sail, whether the neglect of the charterers, to give instructions, had made the discharge of the crew, which had been engaged under the charter-party, necessary or not; and because, also, it assumes the charter-party, of the 20th of October, to be the termination of the responsibility of the appellants, under the original charter-party. Their sixth prayer is based upon the same theory of the rescission of the charter-party of the 19th of June, and fails, for the reasons already given, namely, that the contract still continued to bind the appellants. Their seventh prayer was rejected for want of evidence to sustain it. Nor was there any. The vessel, by the failure of the appellants to provide her with a cargo, was obliged to leave the Lobos Islands, and she left to search employment. The time spent in going to Callao was lost to the vessel, because of her lack of the cargo which was to have been supplied at the Lobos Islands, and because of the necessity imposed, by this lack of cargo, upon the master, acting in good faith, to seek a cargo where he could obtain one, in order that he might, as the agent of the owners, as well as the charterers,  [**50]  protect all concerned from loss, as far as was possible. The court, therefore, was right in rejecting this prayer.

The appellants, in their argument, relied upon the theory, that the special damage allowed by the court below, in the instructions of which they complain, were included in the ascertained penalty for demurrage, provided for in the charter-party. This is not the theory of the law. The sum stipulated in the charter-party is prima facie the measure of damage for the simple detention, which is the ordinary meaning of demurrage, as stated in the charter-party, but it was competent for the jury, in view of all the circumstances, to find above or below this sum, (2 Camp., 616, Moorsom vs. Bell. Abbott on Shipping, 410,) and in determining what was proper to be paid, it was right for the court to instruct the jury, as to these items of charge which make up the damage. This the jury did here by the aggregation of the items of damage. But this stipulated demurrage is never the strict limit of recovery which the appellants suppose it to be.

For these reasons the appellees think that the judgment of the Superior Court ought to be affirmed.  

JUDGES:
The cause was argued before [**51]  ECCLESTON, TUCK and BARTOL, J.  

OPINIONBY:
TUCK 

OPINION:

 [*49]  TUCK, J., delivered the opinion of this court.
This is an action by the owners, against the charterers, of a bark, to recover damages for the non-performance of a charter-party, entered into on the 19th of June 1852, while the vessel was on her way from Frankfort to San Francisco. It stipulates that the "bark shall sail immediately, as soon as she has discharged her present outward cargo at San Francisco, to one of the guano islands, on the west coast of South America, between latitude one and fifteen south, as he (the captain) shall be directed by the charterer or his agent, at San Francisco, for orders to be furnished him there, at said island, by charterer or his agent, to take thence, or thence and from an adjacent island, a cargo of guano, as may be directed." It also provides for twenty-five running days, exclusive of Sun days, to receive the cargo; and for demurrage, at the rate of 

 [*50]  thirty dollars per day, beyond the lay days. The freight agreed upon was fourteen dollars per ton, of 2240 pounds.
The vessel reached San Francisco on the 7th of September, and was ready to sail again on the 14th of that month,  [**52]  but the captain, not finding orders there from the charterers, as contemplated by the contract, remained until the 26th of October, when he sailed for the Lobos Islands, according to their instructions, which he had received on the 7th. Expenses were incurred at San Francisco, which, the plaintiffs say, resulted from the failure of the defendants to furnish orders when the vessel was ready to sail, on the 14th of September; these, as well as for the delay, they claim as part of their damages.
When the captain arrived at the Lobos Islands, on the 13th of December, he found no orders there, nor any person to represent the charterers, and being notified by an officer of the Peruvian Government, that he could not anchor, nor go on shore, he sailed the same day for Callao and Lima, in search of freight, where, on the 13th of December, he chartered the vessel to Barreda & Bro., for a cargo of guano, at the Chincha Islands. The vessel proceeded on the voyage, took in cargo, returned to Callao for clearance, that being the port of the Chinchas, and sailed thence for Hampton Roads. During the passages from the Lobos Islands to Callao, thence to the Chinchas, and again to Callao, and while [**53]  remaining at the latter port, other expenditures were made by the captain, in respect to which, also, and for the vessel's delay, the plaintiffs seek to recover damages as having resulted from the defendants' failure to supply orders at the Lobos Islands.
In the meantime, on the 20th of October, the agents of the owners, at New York, had made a charter of the vessel to Barreda & Bro., for a cargo of guano, from the Chincha Islands, in which, as in that of June, she was said to be on her way to San Francisco. This charter was delivered to the captain on the day he had completed his loading at the Chinchas, under the charter of December, and on arrival at Baltimore, he settled the freight with Barreda & Bro., at fifteen dollars per ton, of 2000 lbs., according to the October charter, without receiving anything additional, as provided by the Lima 

 [*51]  charter of December, by which he was to have received twenty dollars per ton, of 2000 lbs.; and which he then cancelled.
The cause was tried upon an agreement as to the pleadings, and the verdict and judgment were for the owners. The plaintiffs offered eight prayers, all of which were granted except the sixth; and the defendants [**54]  offered seven, all of which were refused, except the second and third. By their second they were allowed a deduction for the time spent at San Francisco, while the captain was procuring a crew and waiting to hear from the owners. By granting the defendants' third prayer, the court held that they were entitled to an allowance for the freight agreed to be paid by the December charter, having denied, by rejecting the plaintiffs' sixth, that the freighters should be held to the charter of October, in ascertaining the freight earned by the new voyage. The defendants appealed from the rulings against them, but the plaintiffs' exceptions were not brought before us by an appeal on their part.
Before considering the questions presented by the testimony offered at the trial, we must dispose of a point made on the part of the charterers, which, if ruled with them, would determine the controversy. It is contended, that this voyage was commenced after Mr. Webster, as Secretary of State, had written to James W. Jewett, stating that citizens of the United States might visit the Lobos Islands for the purpose of obtaining guano, and that this government would protect them in making such efforts; and [**55]  that the Department having afterwards taken a different view of the subject, as indicated by its subsequent correspondence, and warned the merchant marine of the country, that all such enterprises would be undertaken at the peril of the parties engaged, this contract became illegal, and no recovery can be had upon it.
We are of opinion, that this view ought not to have such influence upon the case, even conceding that the correspondence, which is not in the record, should be judicially noticed by the court. There is nothing in the charter to show that the voyage was projected in consequence of the information received at the State Department. The Lobos Islands are 

 [*52]  not mentioned, nor is there anything to indicate that it was made with reference to them alone. The guano might have been obtained at any of the islands on the west coast, between one and fifteen degrees south. If, as was said, we must assume that the Lobos Islands are within these degrees, we cannot ignore the existence of other guano islands, in latitudes within the terms of the contract, with reference to which, it might be argued, that the parties had undertaken the venture.
But, aside from this consideration,  [**56]  we are to deal with the question according to the actual condition of the Lobos Islands, without regard to what the parties may have supposed it to be. If the defendants were misled by the officers of this government, they cannot, on that ground, claim immunity from the obligations they have incurred to the plaintiffs. It was competent for them to have made their liability depend on the political status of the Lobos Islands, or on the captain's being able to load his vessel there. As the instrument contains no saving clause to meet the contingency that did happen, the case must be governed by the general rules applicable to such contracts, which are thus stated by Lord Ellenborough, in Barker vs. Hodgson, 3 Maule & Sel. 267, where the charterer pleaded that he could not load the ship at the port, because there prevailed a pestilent disease, in consequence of which all intercourse was interdicted by the authorities of the place: "Perhaps it is too much to say, that the freighter was compelled to load his cargo, but if he was unable to do the thing, is he not answerable for it upon his covenant? Is not the freighter the adventurer who chalks out the voyage, and [**57]  is to furnish, at all events, the subject matter of which freight is to accrue? The question here is, on which side the burthen is to fall. If indeed the performance of this covenant had been rendered unlawful, by the government of this country, the contract would have been dissolved on both sides, and this defendant, inasmuch as he has thus been compelled to abandon his contract, would have been excused for the non-performance of it, and not liable to damages. But if, in consequence of events which happen at a foreign port, the freighter is prevented from furnishing a loading there, which he has 

 [*53]  contracted to furnish, the contract is neither dissolved, nor is he excused for not performing it, but must answer in damages." The same principle had been applied in several cases of similar character, and it may now be considered the established doctrine, where the contract does not provide against such a contingency as the prohibition, by a foreign government, to export the stipulated cargo. Bright vs. Page, 3 B. & P. 295, note. Atkinson vs. Ritchie, 10 East, 201. Abbott, 310, 597, (Edition of 1846.) Smith's Merc. Law, 315. Parson's  [**58]   Merc. Law, 365. Randall vs. Lynch, 2 Camp. 356. 12 East, 197. 3 Taunt. 387. 16 East, 201. Flanders on Mar. Law, sec. 233.
It must be borne in mind, that the suit is, not to recover freight actually earned, according to the charter-party, but damages for violation of the contract, on the part of the freighters, in not supplying a cargo. In such cases the law leaves the amount to be ascertained by a jury, according to the liberal principles of interpretation usually applied to commercial contracts, upon consideration of all the circumstances, and of the real injury sustained by the owners, which cannot be settled properly by positive rules; and as this claim arose from the default of the charterers, in the first instance, at San Francisco, and afterwards at the Lobos Islands, it is but just and reasonable, that they should make good any loss that may be fairly attributed to such failure. Abbott, ch. 8. 3 Kent 218, 219. Giles vs. Brig Cynthia, 1 Peter's Adm. Rep., 207.
In passing upon the first prayer of the plaintiffs, the court was certainly right in saying that the captain, in the situation in which he was placed [**59]  at the Lobos Islands, was at liberty to act upon his best judgment for the interest of all concerned, and obtain a cargo at another place, as he did. It would have been against the interest of owners and charterers, and inconsistent with his duty to both, to have remained there longer than was necessary to have ascertained whether the guano could be procured. On being ordered off, he had no alternative but to steer for another port. Bright vs. Page, 3 Bos. & Pull. 295. The law does not allow the captain to come home, without endeavors to freight his vessel, immediately 

 [*54]  on ascertaining that the cargo cannot be furnished, according to the charter; nor to remain the whole time appointed, and charge the merchant with demurrage. Acting for the interest of all concerned, under the circumstances by which he may find himself surrounded, he must use efforts to make the vessel earn as much as he can, so as to diminish the loss to the party who may ultimately suffer by the failure to obtain the stipulated cargo. Abbott, 597, Smith's Merc. Law, 284.
We are also of opinion, that the plaintiffs were entitled to recover for the delay of the bark at San Francisco,  [**60]  so far as that delay was caused by the failure of the defendants to furnish orders there, for the prosecution of the voyage; and for the loss of time between the arrival at the Lobos Islands and the final departure from Callao, if the captain acted in good faith, and with due diligence and care; for if the new voyage was occasioned by the default of the defendants, and took more time, the owners should be compensated for such additional use of their vessel, which would be for the whole time between the arrival at the Lobos Islands and the final departure from Callao, after deducting the lay days, and so much as was consumed in bringing the vessel nearer home, if there had been proof that such was the course of the new voyage.
In estimating the damage for delay and loss of time, the sum agreed upon as demurrage was properly left to the jury, as prima facie evidence. Some criterion must be observed, and considering the difficulty of procuring witnesses, in such cases courts should adopt that which appears to be the most convenient rule. This principle was adopted by Ld. Ellenborough, in the case of Moorsom vs. Bell, 2 Camp. 616, as a rule both of convenience [**61]  and justice; open to the ship-owner to show that more damage was sustained, and to the freighter to show that there was less. Abbott, Part 4, ch. 3, sec. 3, 306.
But here there was an allowance by the contract of twenty-five running days, exclusive of Sundays, at the place of loading. The prayer allowed only twenty-five lay days. Considering the fourth and fifteenth articles of the charter-party together, we think the lay days excluded Sundays, and that the prayer was erroneous, in restricting the jury to an allowance 

 [*55]  of twenty-five. Abbott, Part IV, ch. III, sec. 2. 10 Mees. & Wels. 331. Smith, 283. The owners agreed to allow certain days for loading, if the voyage had been according to the contract. As they are charging the defendants for the extra time in obtaining another cargo, it is not unreasonable that the same allowance be made. It has been decided, that a substitution, by mutual consent, of a new port for that named in the charter-party, without mention of lay days, will not affect the lay days stipulated for in the original contract. Smith's Merc. Law, 284. Jackson vs. Galloway, 5 Bing. N. C. 71.  [**62]  (35 Eng. C. L. Rep. 34.) The same principle should apply here, especially as the cargo actually obtained was of the same article as that with which the defendants had agreed to load the vessel. The fairness of the allowance is shown by the fact, that the charter-party made by the captain at the clearance port of these islands allows twenty-five working days, those of bad weather and hindrances excepted. In this respect the prayer was erroneous.
We need not inquire, nor do we intimate, whether this prayer was too broad in its scope, in not allowing the defendants a deduction for the vessel's delay at San Francisco, while the captain was waiting to procure a crew, and for advices from his owners, because, if the defendants' pretensions be well founded, they had the benefit of that view of the case, by the granting of their second prayer; and this instruction would not, on this ground, be reversed on their appeal, whatever might be the result, if the points were before us on the exceptions of the plaintiffs.
2. There was no error in granting the second prayer. The defendants having failed to send orders in time to San Francisco, and the captain being ready to sail before [**63]  they arrived, the means he employed to obtain information were proper, and the expense should be paid by the party in default. It was not covered by the demurrage allowed in the first prayer.
3. The demurrage included the hire and maintenance of the crew. If the captain, in the exercise of his discretion, discharged his crew, we do not think the owners can claim, in addition to the demurrage, the expense or bonus paid as the 

 [*56]  condition of releasing the captain from his contract with the seamen. If by this prayer the plaintiffs meant to claim this sum in addition to the demurrage, it was erroneous in point of law; and if such was not the design, the proposition should have been stated in terms less liable to mislead the jury.
4, 5. In sailing from San Francisco, the captain acted in execution of the defendants' instructions. If, on their failure to furnish orders at the Lobos Islands, it became necessary to sail for another port, for which the crew had not been shipped, and they insisted on being discharged, the captain had no alternative but to engage another crew. The additional expense is not covered by demurrage, and must fall on the charterers. The same principle must [**64]  apply to the port charges at Callao, if incurred in the prosecution of the new voyage, undertaken, in part, for their benefit, and by reason of their default. The 4th and 5th prayers, therefore, were properly granted.
7, 8. The seventh and eighth prayers state the law correctly, if they are understood as not allowing the plaintiffs the expenses therein mentioned, in addition to the demurrage, which is the interpretation of the plaintiffs' counsel, and which we consider the correct view. Thus construed, they merely charge the defendants with items of actual loss or damage, according to the principle of Moorsom vs. Bell. But if these sums were claimed in addition to the demurrage, they ought not to be allowed.
We are next to consider those of the defendants' prayers, which were refused.
The first placed upon the contract a construction at variance with its plain meaning. The lay days were allowed for loading, and not for orders at San Francisco, and were properly deducted by the first prayer, from the whole time. The defendants were not injured by the refusal of this prayer, even if its propositions of law were correct.
The 4th was well refused. It is not pretended, that the [**65]  December charter discharged that of June; why should that of October have such effect? They were both executed after default by the charterers, when the vessel was liable to be 

 [*57]  chartered. Whatever influence such act of an owner might have on the first charter, before a breach by the merchant, we are very certain that it cannot discharge him from all the consequences of his own violation of contract, previously committed, as proposed by this prayer.
5, 6. These prayers are based on the idea, that if the charter of October, did not, of itself, release the merchants from their liability on the contract of June, yet, in connection with the facts enumerated in the fifth prayer, it ought to reduce the damages; and, in connection with certain other facts stated in the sixth, ought to discharge the defendants altogether. To neither of these propositions can we assent, because the owners had the right to make another charter to save themselves, and thereby benefit the defendants, and its mere execution cannot have the effect, either of releasing the first charter, or of reducing the amount of the verdict. What was done under that contract between the owners and the Messrs. Barreda,  [**66]  may be important in ascertaining the amount of loss to the plaintiffs; but the mere making of the contract can have no effect on their claim.
7. The seventh was not sustained by any evidence, unless the jury might be presumed to have knowledge of these places, and their relative positions, and distances, as well as the customary course of such voyages. We have said, in discussing the plaintiffs' first prayer, that the defendants ought not to be charged with the time, if any, consumed in bringing the vessel nearer home. For so much of the time she may be considered as having performed only what the owners had contracted she should do, without any loss to them by default of the defendants.
This being the appeal of the defendants, we must confine ourselves, for the reversal of the judgment, to their exceptions. In finally disposing of the case, however, we may look to the ruling of the court below, on those tendered by the plaintiffs, though we cannot reverse the judgment for their benefit, as they have not appealed. Nor, indeed will a judgment be reversed on the appellants' exceptions, where the court can see that they will not be benefitted by another trial. This we take to 

 [*58]   [**67]  be the condition of the present record. We have expressed our dissent from the judgment below, on the first and third prayers of the plaintiffs, which would entitle the defendants to a deduction from the items therein mentioned, not previously allowed; but my brother judges are of opinion that the court erred in refusing the plaintiffs' sixth prayer, and in granting the defendants' third, whereby they had the benefit of the freight stipulated in the December charter. Upon a procedendo they would be allowed a deduction only at the rate of the October charter, (for the court would not send the record back without an expression of their views on this disputed point,) and, as the difference between them is greater than the amounts gained by the defendants on their appeal, the verdict could not be less, but considerably more than the amount already recovered against them. So far as the difference between the charters is involved in this view of the case, the result is a mere matter of figures on written evidence, and nothing, on that point, will be left for the jury. We may therefore, without assuming any facts which the jury ought to pass upon, decide the question of amounts, and let [**68]  the judgment stand. Emery & Gault vs. Owings, 6 Gill 191. Roloson vs. Carson, 8 Md. 208. Duvall vs. Farmers Bank, 9 G. & J. 31, 51.
Judgment affirmed. 

192 of 196 DOCUMENTS 

ELIJAH CAREY AND THOS. H. CAREY, vs. THOMAS DENNIS AND WIFE, AND OTHERS.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

13 Md. 1; 1859 Md. LEXIS 7 

January 27, 1859, Decided 

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

This was a creditors' bill filed on the 17th of November 1854, by the appellants, two of the sons and heirs at law of Levin Carey, deceased, against the appellees, his administrator and other children and heirs at law, for the sale of the deceased's real estate, to pay his debts.

The bill alleges that Levin Carey was, in his lifetime, indebted to the complainant Elijah in the sum of $ 12,000, and to the complainant Thomas in the sum of $ 10,000, on his certain bills obligatory, dated the 9th of December 1853, which are exhibited with the bill, and being so indebted, and having real and personal estate of great value, died intestate in the year 1853, leaving as his children and heirs at law, Joseph Carey, Nancy, wife of Thomas Dennis, Mary, wife of Peter L. Davis, Sophia T. Carey, and the complainants, all of full age, to whom his real estate has descended; that letters of administration have been duly granted to Joseph Carey, who, in virtue thereof, has possessed himself of the deceased's personal estate of great value; but complainants "are informed and believe that the same is not sufficient to discharge [**2]  all the debts due and owing by the said Levin Carey, at the time of his death," and are advised that any deficiency in said personal estate ought to be supplied by a sale of the real estate of their aforesaid debtor. The bill then prays for a sale of the real estate accordingly, and for general relief.

The obligations filed as exhibits with the bill, were written upon paper duly stamped, and the following is a copy of that in favor of Elijah Carey, the one in favor of Thomas H. Carey being precisely the same, except the name of the obligee and the amount, $ 10,000 instead of $ 12,000:

"$ 12,000.00. For value received, I bind myself, my heirs and assigns, &c., to pay or cause to be paid to Elijah Carey, his heirs, &c., &c., the sum of twelve thousand dollars, with interest from the date until paid; as witness my hand and seal, this ninth day of December, eighteen hundred and fifty-three.

LEVIN CAREY,   (Seal.)

1853, Decm. 9th.

Testes,--Hillary R. Pitts, Solomon Carey."

Dennis and wife, and Davis and wife, in their answer, deny that these papers ever were the bills obligatory of said Levin, or were ever obligatory on him, or created any indebtedness on [**3]  his part to the complainants, or that they were ever either actually or virtually delivered by him to the complainants, or that they ever became obligatory on him in his lifetime, or upon the respondents since his death, or that the real estate which has descended to them is liable to be sold for the payment of the sums of money mentioned therein, or any part thereof. They also deny that the said Levin ever received from the complainants, or either of them, any valuable consideration for the sums of money mentioned in said papers, or any part thereof, and wholly deny that the same, or any part thereof, was a just claim against the said Levin, in his lifetime, or is a just claim against the respondents, or the real estate which has descended to them from the said Levin. They admit that he died intestate as to his real estate, leaving as his children and heirs at law the parties whose names, ages and marriages are correctly stated in the bill, and that Joseph Carey had administered upon the personal estate of the deceased, but they deny that said personal estate is insufficient to discharge all the debts due and owing by the deceased at the time of his death, and also deny that this [**4]  court has any power or jurisdiction to decree the sale of the real estate so descended to the respondents, for the payment of said pretended claims, or either of them.

Joseph Carey, in his answer, admits the allegations of the bill to be true, and submits to such decree as may be right.

Sophia T. Carey, in her answer, admits that the names, ages and intermarriages of the children and heirs at law of her father, Levin Carey, are truly stated in the bill, and that administration on his personal estate has been granted to Joseph Carey, but says she knows nothing of her father's indebtedness to the complainants, on the bills obligatory mentioned in the bill of complaint, or of any deficiency of his personal assets to pay his debts, and is willing to submit to such decree as may be right.

A general replication to the answers was then filed, and a commission issued, under which testimony was taken.

Solomon Carey, a witness for the complainants, and a brother of the deceased, proved the execution, by Levin Carey, of these obligations in his presence, and that he, deponent, signed his name as a witness thereto, at the request of said Levin; that Doctor Pitts, Joseph and [**5]  Elijah Carey were present at the time, and deponent thinks that Thomas Carey was also present, but will not say positively. In answer to interrogatories on the part of the complainants, as to whom the said papers were delivered after their execution, and as to what, if any thing, was said by the said Levin Carey in regard to their execution and delivery, and generally in regard to their preparation, and his business as connected therewith, this witness says:

"Said papers were delivered in a package, with a similar one for $ 12,000 in favor of Joseph Carey, to me after their execution. Said Levin Carey told me that if he died without a will, to deliver them to his three sons, Joseph, Elijah and Thomas. I went there with Doctor Pitts, the Doctor having told me that my brother wanted to see me. After I got there, and after the usual salutations when persons meet, and after having spoken about the blessings of God towards him, he then told the Doctor he wished him to do some writing for him. The Doctor asked him what he wanted him to write. He said he wanted to make some arrangements for his sons; that if he died without some arrangements, they would be defrauded. He then told the [**6]  Doctor that he wanted him to draw three obligations, one for Joseph for $ 12,000, one for Elijah for the same, and one for Thomas for $ 10,000. The Doctor remarked to him that he supposed he wanted him to write his will, and, in order to do so, had brought a book with a form. He then said he had thought about making a will, but he could not do it; that it would be impossible to delineate his lands unless he had them run out and plats made of them. He then called on the boys to bring paper, pen and ink, and the stand was arranged for writing. He then told the Doctor that his sons had gone through a great deal of hardship for him, wet and dry, cold and hot, to Milton, Milford, and so on, with the wagon, day and night, and that they had gone through enough to kill a dog; that they had helped him to make the property, and that he could not die a just man and could not die satisfied without doing something for them; that in dying so they would be defrauded, and forever remain so. The Doctor then tried his pen and proceeded to draw a form. The form was drawn and shown to Mr. Levin Carey, and I looked at it too. He asked me if I thought it was drawn right. I told him I thought it was drawn [**7]  in the usual way of drawing them things. The Doctor then proceeded to draw the three obligations as he had before directed him. The Doctor had drawn one or two of them, and my brother, who was looking oven them, told him that he had made a serious mistake, that he had left out the word 'dollars.' The Doctor took it and interlined the word 'dollars' upon my brother having called his attention to the mistake. This error occurred in the note to Joseph, and the interlineation was made before the paper was executed. After they were all drawn and examined by the old man, he signed them, and while signing each he said, 'I acknowledge this to be my hand and seal, for the true intent and purpose therein mentioned.' He called the boys to take them and see if they were right. Joseph and Elijah were present; I do not know whether Thomas was or not. Elijah took them and looked at them, and said I believe they are right. Levin Carey said that Sophia had been with us and remained with us all the while, and that her health is not as good as the others, and she ought to have more than the other girls. After dinner, when the notes had been signed, sealed and passed to me, I asked him if he had forgotten [**8]  Sophia? He said no; that he had not forgotten any of the girls; that they would all get some property. Previous to this time, he said that after that he supposed there would be some $ 6000 to divide among them. About the time he was giving the obligations, he was speaking about their bearing interest from the date, or something about that. I then asked him if he intended to redeem them in land, and he made no reply. I repeated that question two or three times, and after the second or third time, he remarked that his sons-in-law were shrewd fellows, and said that he wished his sons to have the full value of the obligations. I do not think the obligations had been signed when I asked him this question."

This witness, also, in his examination in chief, proved that Nancy lived with her father till she was married; that Mary lived with her uncle most of the time from twelve or fourteen years of age till her marriage, and in answer to the tenth interrogatory says, "that deponent became satisfied there was no will, and he delivered them to Joseph, Elijah and Thomas, each, the note that was payable to him on its face."

On cross-examination, this witness proved that for the last twenty-six [**9]  years the family of the deceased consisted generally of his wife and part of his children; Joseph, Elijah, Thomas and Sophia were there most of that time; Nancy was also there till she married; Mary went, when she was twelve or fourteen years of age, to live with her uncle, and so went, as witness believes, with the approbation of her parents; Sophia lived with her father till his death. He also proved that the daughters labored in the family in household business, doing kitchen and house-work, and also on the farm, while they lived with their father; witness has seen them at work in the field dropping corn, stripping blades, and dropping beans and peas; that Joseph did not live in the house with his father part of the time for the last twenty-six years, but lived on an adjoining farm, which actually belonged to him, but from which his father had all the proceeds, and the control of, and owned the stock on it--so deceased told deponent; that the deceased also left a widow, who is still living.

Doctor Hillary R. Pitts, a witness for the complainants, also proved the execution by Levin Carey of the obligations in question, and that deponent signed his name as a witness thereto,  [**10]  at the request of the said Levin; that Solomon Carey was present, and that Elijah Carey was also present, and remained there, as witness believes, all the time of the transaction; he has no recollection of any one else being present. In answer to the same interrogatories which were propounded to Solomon Carey, this witness says:

"The papers were delivered to Solomon Carey, after their execution, by Levin Carey, who requested him to give them to his sons, in case he died without a will. I received a message from the said Levin Carey the day before the execution of these papers, to go the next day to see him, that he had some particular business for me to transact. I went the next day. After being there some time, Mr. Levin Carey introduced the subject to me himself, and stated that he wanted to give his boys certain amounts, and proposed to do it by giving his notes, (I don't recollect that he mentioned the amounts at the time,) and asked me if I thought it would be good. I replied that I did not know to the contrary. He then asked me to draw him a note. I drew him one, as a form, on unstamped paper, and handed it to him for his examination. He read it, and approved of it, and [**11]  handed it to his brother Solomon, who also read it, and approved of its form. Stamped paper was then furnished, and at the request of Levin Carey, I drew three notes on the stamped paper, and inserted the amount of $ 12,000, as directed by Levin Carey, in each of the two in favor of Elijah and Joseph, and $ 10,000 in that in favor of Thomas, and then handed them to Mr. Levin Carey, for his inspection. He read them, got up out of his bed, went to the table where I wrote the notes, and signed them, and while signing each he made the remark, 'I acknowledge this to be my hand and seal, for the full intent and purpose therein mentioned.' After he had signed the notes, Mr. Solomon Carey and myself were called upon by him to witness them, which we did. Mr. Levin Carey then delivered all three of the notes to Solomon Carey, with the request that he wanted him to take care of them, and deliver them to his sons, in case he died without a will. Before, during, and after the preparation of these notes, Mr. Levin Carey stated to me that he was induced to give his sons these amounts because he thought they were entitled to them; that they had labored very hard for him through life; had done a great [**12]  deal for him, and that he could not die satisfied without giving to them these amounts. He either stated that one or more of his sons were now between the ages of thirty and forty years, and that he had done very little for them, and that they had done a great deal for him. He stated a great deal of hardships they had gone through for him, but this deponent does not recollect what they were. After the delivery of the notes as aforesaid, this deponent asked the said Levin Carey, if he recovered, whether he intended to revoke these notes? deponent asked the question two or three times, to which the said Levin Carey made no reply."

It was admitted that at the time of the execution of these papers, as deposed to by the above witnesses, Levin Carey was sick, and that he died of the same sickness.

The complainants also offered in evidence the administration account and proceedings in the Orphans Court, showing a balance of about $ 3000 of personal property in the hands of the administrator, due the estate, after paying debts other than these obligations, which balance said court ordered the administrator to retain, to meet the claims upon these obligations, and also that of the [**13]  administrator, Joseph Carey, for $ 12,000, all of which had been presented against the said personal estate, and the payment of which was resisted by some of the distributees and heirs at law of the deceased.

A number of witnesses on both sides were then examined as to the quantity and value of the real estate of the deceased. From their evidence it appears that he owned about three thousand acres of land in Worcester county, lying in a body; that a comparatively small portion of it was cleared and cultivated, the residue being cedar, cypress and gum swamp. By averaging the testimony of all the witnesses as to their estimates of its value, it did not exceed $ 30,000.

The defendants, Dennis and wife, and Davis and wife, filed exceptions to the bill, upon the ground that it contains no sufficient averment that Levin Carey died without leaving personal estate sufficient to discharge the debts due by him. They also filed exceptions to the admissibility of all the items of evidence tending to show the amount and value of said personal estate. They also excepted to the admissibility of so much of the deposition of Solomon Carey as states "that after deponent became satisfied there [**14]  was no will, he delivered them to Joseph, Elijah and Thomas, to each the note that was payable to him on its face." [Note.--In the argument of the case in the Court of Appeals, this last exception was rested, upon the ground that there was no tenth interrogatory, to which this part of the deposition professes to respond, and no such interrogatory appears in the record.]

The cause having been set down for final hearing, was argued, and the court below (SPENCE, J.) overruled the defendants' exceptions, and delivered the following opinion accompanying his decree dismissing the bill:

"This cause has been fully and ably argued by the counsel on both sides. After an attentive examination of the authorities cited in argument, and others applicable to the case, and a careful consideration of the facts and circumstances disclosed by the testimony, the court is of the opinion that the instruments of writing filed with the complainants' bill, and upon which the demands of the complainants against the estate of the deceased, Levin Carey, solely depend, were signed and sealed, and placed in the possession of Solomon Carey by the deceased, with a testamentary purpose, and were not intended [**15]  by him to have any effect or operation whatever, until after his decease; that they did not create nor impose any obligation upon the deceased, nor pass any interest to the complainants during the lifetime of the deceased, being imperfect in execution as the deeds of the deceased, for want of a proper delivery. The bill of the complainants must, therefore, be dismissed."

From the decree accordingly passed dismissing the bill, the complainants appealed.  

DISPOSITION:
Decree affirmed, without costs.  

HEADNOTES:

Bonds executed by a father in favor of his sons, and delivered to a third party, with directions "to take care of them, and deliver them to his sons, in case he died without a will," are mere voluntary gifts, revocable at pleasure, and not evidences of debt; and, though delivered to the sons after the father's death intestate, cannot have any operation, except as testamentary papers.

To authorize a decree for the sale of lands to pay debts under the act of 1785, ch. 72, sec. 5, there must be an indebtedness existing in the lifetime of the deceased: the debt need not be payable in his lifetime, but must be shown to be existing.

An instrument in any form, whether a deed or a bond, where the obvious purpose is that it shall not take effect till after the death of the party making it, is a will, and it matters not whether the party, at the time of executing it, intended to make a will or not.

Where an instrument does not operate inter vivos, but is made to depend, for its whole operation, upon the event of the death of the maker to consummate it, it can only take effect as a testamentary paper.

To vest any interest in the obligee, or, in other words, to create a debitum in presenti, a delivery of the bond, in the lifetime of the obligor, to the obligee, or to some one for his use, is necessary.

Delivery is essential to the validity of every deed; it need not be made directly to the party who is to take, but may be made to a third person, to hold for him as his trustee; in such a case there is a present interest vested, the delivery being regarded in law as if made to the party himself.

But bonds placed in the hands of a third party as the agent of the obligor, and not intended to be delivered, and not, in fact, delivered to the obligees until after the death of the obligor, are not debts, but in the nature of testamentary papers.

In such a case, the party in whose hands the bonds were placed, is the mere agent of the obligor, and such agency is revoked by his death, and cannot afterwards be executed, and the subsequent delivery of the bonds to the obligees, is a void act, which vested no right in them as creditors of the obligor. 

COUNSEL:
Jno. R. Franklin and Isaac D. Jones, for the appellants, argued the following points:

1st. That the proof shows that Levin Carey, in the execution of these bonds, did not intend to make a will, but intended them to operate as legal obligations in presenti; and that this intention must prevail, unless it contravenes some rule of law. 3 G. & J. 214, McNulty vs. Cooper. 1 Mass., 258, Swett vs. Boardman. 2 Ves., Jr., 226, Habergham vs. Vincent. 2 Parsons on Cont., 7, note (g.) Ibid., 15, note (y.) 35 Eng. Law & Eq. Rep., 336, Alexander vs. Brame. 2 Hagg, 235, Masterman vs. Maberly. 1 Jarman on Wills, 11, note 1. 39 Eng. Law & Eq. Rep., 133, Palmer vs. Newell. 5 Binney, 490, Toner vs. Taggart.  [**16]  They are not ambulatory, and therefore not a will, for a will must be, in its own nature, ambulatory and revocable. 1 Jarman on Wills, 11. 30 Miss. Rep., 91, Wall vs. Wall.

2nd. That these obligations being under seal, import, upon their face, a sufficient consideration. 5 Gill 103, Edelen vs. Gough. 8 Md. 118, Edelin vs. Sanders.

3rd. That the proof shows that they were founded on a valuable consideration. 1 Gill 1, Stevenson vs. Reigart.

4th. That the delivery of these bonds by Levin Carey to Solomon Carey, under the circumstances given in evidence, constituted them the obligations of Levin Carey in presenti, and made Solomon Carey trustee for the obligees therein named, respectively. 1 Shep. Touch, 59. 13 Johns., 285, Ruggles vs. Lawson. 4 Day, 66, Belden, et al., vs. Carter. 2 Mass., 447, Wheelwright vs. Wheelwright. 9 Mass., 307, Hatch vs. Hatch. 6 Md. 274, Cox vs. Sprigg & Wife. 1 Wood. & Minot, 325, Brown vs. Brown, et al. 4 Kent, 453 and 456, and cases cited in note (a.) Even if they were delivered as escrows, they would take effect by relation from the first delivery. 5 Coke, 85, and cases cited above. And even if Levin Carey had himself retained [**17]  the custody of these bonds, under the evidence in this cause he would be considered as holding them as trustee for the obligees named therein, respectively, and on his death intestate they would have taken effect as obligations from their date. 5 Binney, 490, Toner vs. Taggart. 1 Atk., 625, Boughton vs. Boughton. 2 Vern., 476, Clavering vs. Clavering. 35 Eng. Law & Eq. Rep., 336, Alexander vs. Brame. 2 Story's Eq., sec. 706. 2 Md. Ch. Dec., 21, Linthicum vs. Linthicum. 6 Md. 274, Cox vs. Sprigg & Wife. On this point, and that these bonds are not testamentary papers, see also 6 Gill 463, Hannon vs. Robey, and the same case in 9 Gill 440; and 6 Md. 235, Mayor & City Council of Baltimore vs. Williams.

5th. That the fact that by the terms of the delivery of these bonds to Solomon Carey, their payment was postponed until after the death of Levin Carey, does not impair their validity as legal obligations. 3 Yeates, 389, Shields & Wife vs. Mifflin's Excrs. 8 Term Rep., 483, 484, Burgh vs. Preston. 10 Adol. & Ellis, 222, Roffey vs. Greenwell, in 37 Eng. C. L. Rep., 99. 1 Atk., 292, Ramsden vs. Jackson. 1 Chitty's Index, 193. 19 Conn., 7, Bristol vs. Warner.

6th. That [**18]  the allegations of indebtedness and insufficiency of personal estate to pay, contained in the bill, are sufficient, and are fully sustained by the proof. 10 G. & J. 65, Gibson vs. McCormick. Alex. Ch. Pr., 251.

For these reasons it is insisted that the decree below is erroneous, and ought to be reversed.

Oliver Miller and William Tingle, for the appellees, argued the following points:

1st. That there is no proof of indebtedness on the part of Levin Carey, in his lifetime, to the appellants, and to authorize a decree for the sale of a deceased's real estate to pay debts, under the act of 1785, ch. 72, sec. 5, and 1818, ch. 193, sec. 2, there must be proof of indebtedness in his life-time. 6 H. & J. 65, Carnan vs. Turner. 2 Bland, 543, Watkins vs. Worthington. 3 Bland, 359, Simmons vs. Tongue. That the papers in this case purporting to be bills obligatory, are testamentary papers, and not evidences of indebtedness, and that to ascertain their character you can look dehors the papers. It is not necessary that an instrument should be of a testamentary form in order to operate as a will, provided it is the intention of the deceased that it should operate after his [**19]  death. A deed poll, or an indenture, a deed of gift, a bond, marriage settlements, letters, drafts on bankers, the assignment of a bond by endorsement, receipts for stock and bills endorsed "for A. B.," an indorsement on a note, "I give this note to C. D.," promissory notes payable by executors to evade the legacy duty, have been held to be testamentary. And it is not necessary for the solidity of a testamentary instrument that the testator should intend to perform, or be aware that he had performed, a testamentary act; for it is settled law that if the paper contains a disposition of the property to be made after death, though it were meant to operate as a settlement, or a deed of gift, or a bond; though such paper were not intended to be a will, or other testamentary instrument, but an instrument of a different shape; yet if it cannot operate in the latter, it may nevertheless operate in the former character. 1 Wms. on Excrs., 85, 86, 320. 1 Jarman on Wills, 12 to 22. 2 Kent, 554, 555. Modern Probate of Wills, 22, 23, 30, 31, 32, 33, 436. 1 Chitty's Bl., 238. 2 Ves., Jr., 204, Habergham vs. Vincent, and same case in 5 Term Rep., 92. 1 Phillimore, 1, Thorold vs. Thorold. 3 Phillimore,  [**20]  317, Bartholomew, et al., vs. Henley. Ibid., 209, Strauss vs. Schmidt. 2 Hagg., 235, Masterman vs. Maberly. Ibid, 428, Glynn vs. Oglander. Ibid., 554, In re Knight. 3 Hagg., 218, King's Proctor vs. Daines. 3 Curteis, 787, Coventry vs. Williams. 2 Eng. Law & Eq. Rep., 591, Jones vs. Nicholay. 8 Eng. Law & Eq. Rep., 507, Gough vs. Tinden. 1 Madd. Ch. Rep., 103, Cotteen vs. Missing. 3 Story's Rep., 755, Grattan vs. Appleton, et al. 4 New Hamp., 434, Hunt vs. Hunt. 4 Hawks, 141, Allison's Excrs. vs. Allison. 4 Desauss, 617, Milledge, et al., vs. Lamar, et al. 4 McCord, 12, Singleton vs. Brewer. 1 Speer's Eq. Rep., 256, Kinard vs. Kinard. 2 Kelly, 31, Hester vs. Young. 3 Kelly, 569, Jackson vs. Culpepper. 6 Geo. Rep., 515, Robinson vs. Schly, et al. 10 Geo. Rep., 506, Symmes vs. Arnold & Wife. 2 Ala. Rep., 152, Dunn & Wife, et al., vs. Bank of Mobile, et al. 23 Ala. Rep., 448, Walker vs. Jones. 9 G. & J. 99, Wareham vs. Sellers. 5 Gill 506, Hebb vs. Hebb.

2nd. That the doctrine of relation is not applicable to the case. The act of 1785, ch. 72, sec. 5, contemplates indebtedness in fact in the lifetime of the ancestor, and not indebtedness by fiction, and the heir at law is [**21]  only liable for an indebtedness in fact by his ancestor in his lifetime. If the ancestor was not, in fact, indebted in his lifetime, his heir is not liable, although he have real assets. Litt., sec. 66. Coke Litt., 52, (b.) 2 Thomas' Coke Litt., 308, (top paging.) Delivery is essential to the validity of a deed, though it is not requisite it should be delivered immediately to the grantee. It may be delivered as an escrow, or to a third person for the use of the grantee, or conditionally, and in such cases the third person will be regarded as a trustee of it for the grantee. But the delivery must be as the deed of the grantor for the use of the grantee, and the grantor must part with his dominion and control over it, and the third party must be the trustee for the grantee, and not the mere agent of the grantor. Here the proof shows that Solomon Carey was the mere agent of Levin Carey, to deliver the bonds after the death of the latter. Levin Carey never parted with his dominion and control over these instruments; his words, when he handed them to his brother Solomon, were, "I want you to take care of them, and deliver them to my sons, in case I die without a will." This was no parting [**22]  with the control over the bonds, but was merely constituting Solomon as his agent to keep them, which agency was revocable by his making a will, or at his pleasure, and which was, in law, revoked by his death. 4 Kent, 500, (7th Ed.) 1 Bouv. Institutes, 345. Rutherford's Institutes, 99. Story's Agency, secs. 488, 489, and notes. Shep. Touch., 58, 59, 60, 72, in 30 Law Lib., 124, 125, 126, 145, 146, 147. 4 Brown's Ch. Cases, 286, Tate vs. Hilbert. 1 Madd. Ch. Rep., 103, Cotteen vs. Missing. 4 Cush., 92, Sessions vs. Moseley. 14 Conn., 271, White vs. Bailey. 2 Gilman, 565, Bryan, et al., vs. Wash, et al. 15 Wend., 663, Church vs. Gilman. 8 Iredell's Eq. Rep., 88, Roe vs. Lovick. 2 Barn. & Cress., 82, Murray vs. Earl of Stair.

3rd. That the application of the doctrine of relation to such a case as this would subvert the rights of widows to their thirds of the personalty of their deceased husbands, would nullify the tax upon collateral inheritances imposed by the act of 1844, ch. 237, and render futile the statute of wills and laws of probate. 4 H. & McH., 101, Griffith vs. Griffith. 4 H. & J. 480, Coomes vs. Clements. 5 G. & J. 488, 489, Hunter vs. Bryson. 1 Md. Ch. Dec.,  [**23]  337, Hays vs. Henry. 2 Randolph, 508, Ruth, et al., vs. Owens. 34 Eng. Law & Eq. Rep., 462, Hulse vs. Hulse. 10 Conn., 486, Raymond vs. Sellick. 16 Verm., 212, Holley vs. Adams. 24 Verm., 594, 595, Meach vs. Meach. 18 Penn. State Rep., 328, 329, Headley vs. Kirby. 3 Barb. Ch. Rep., 116, Craig vs. Craig.

4th. That in any aspect of the case, the papers purporting to be bills obligatory, must be deemed testamentary in regard to the widow of Levin Carey, and if deemed testamentary in regard to her, they must be deemed so to every purpose. 1 Jarman on Wills, 17. 2 Wms. on Excrs., 1315. 2 Vernon, 612, Turner vs. Jennings.

5th. That had the papers purporting to be bills obligatory, been delivered immediately after they were signed to the sons, they would have been but voluntary, and the sons volunteers, and a Court of Chancery would not enforce the payment of them by a sale of the real estate, under the act of 1785, ch. 72, sec. 5, when by doing so the daughters would be deprived of all provision, and that, too, contrary to the intention of the father. 1 Carter, 100, Resor vs. Johnson. 16 Penn. State Rep., 488, Zerbe vs. Miller. 3 Dev., 348, Williams vs. Barnes. Wright's Rep., 134,  [**24]  Willis vs. Dun. 5 Watts & Sergt., 513, Candor's Appeal. Atherley on Marriage Settlements, 132 to 143. 2 H. & G. 100, Black vs. Cord. 1 Fonb. Eq., ch. 5, sec. 3. 1 Eq. Cases Abr., 18, pl. 9. 6 Md. 284, Cox vs. Sprigg & Wife. Ibid., 435, Haines vs. Haines. 1 Peere Wms., 60, Watts vs. Bullas, and note. 8 Gill 275, Waters vs. Howard. 1 H. & J. 224, Carberry vs. Tannehill. 5 Md. 152, Elysville Manf. Co. vs. Okisko Co. 1 Md. Ch. Dec., 112, Waters vs. Howard. 2 Md. Ch. Dec., 401, Duvall vs. Myers. 4 Gill 472, Geiger vs. Green. 4 Md. Ch. Dec., 273, Philpott vs. Elliott.

6th. That there is no sufficient averment of the insufficiency of the personal estate to pay debts, and that the court below, therefore, had no jurisdiction to decree a sale of the realty. That there being no sufficient averment of the insufficiency of the personal assets, there was no issue in regard to the sufficiency of those assets, and all the evidence in the case to show such insufficiency was inadmissible, and the court below could not, therefore, have decreed a sale, if the merits had been with the appellants. 7 G. & J. 191, Berrett vs. Oliver. 5 Gill 268, Tomlinson vs. McKaig. 2 [**25]  How., 338, Grignon vs. Astor. 1 Ves., Sen., 56, Lord Uxbridge vs. Staveland. 2 Comyn's Digest Demurrer. 6 Beav., 620, 623, Egremont vs. Cowell. Story's Eq. Pl., sec. 241. 1 H. & G. 504, Baltzell vs. Foss. 3 G. & J. 153, Hoye vs. Brewer. 4 G. & J. 295, Wise vs. Smith, et al. 6 G. & J. 446, Griffith vs. Frederick County Bank. 6 Pet., 701, United States vs. Arredondo.

7th. That there is no competent evidence of the delivery of these papers, purporting to be the bills obligatory of Levin Carey, to the appellants, or either of them, after his death, so much of the testimony of Solomon Carey as proves such delivery having been excepted to, and there being no tenth interrogatory, to which it professes to respond. 9 G. & J. 121, Md. Ins. Co. vs. Bossiere.  

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

OPINIONBY:
BARTOL 

OPINION:

 [*15]  BARTOL, J., delivered the opinion of this court.
This cause has been argued with very great ability and care, and several interesting questions have been presented for the consideration of this court; but in the view which we have taken of the case, after a most careful examination of the authorities cited, and a mature consideration [**26]  of the main question involved, we are of opinion that the ruling of the Circuit Court is correct, and that the decree ought to be affirmed.
The proceeding was instituted under the act of 1785, ch. 72, sec. 5, which authorizes a Court of Chancery to decree the real estate of a deceased party to be sold for the payment of his debts, in case of an insufficiency of his personal assets.
That section provides, "that if any person hath died, or shall hereafter die, without leaving personal estate sufficient to 

 [*16]  discharge the debts by him or her due, and shall leave real estate which descends," &c., &c., "the chancellor shall have full power and authority, upon application of any creditor of such deceased person, after summoning," &c., "and hearing as aforesaid, and the justice of the claim of such creditor is fully established, if upon consideration of all circumstances it shall appear to the chancellor to be just and proper that such debts should be paid by a sale of the real estate, to order the whole or part of the real estate so descending or devised to be sold for the payment of the debts due by the deceased."
The provisions of this section were afterwards extended to [**27]  defendants of full age, by the 2nd section of the act of 1818, ch. 193.
To authorize a decree for the sale of lands under these statutes, it is necessary that there be an indebtedness existing in the lifetime of the deceased. By which we mean, not that the alleged debt must be payable in his lifetime, but that the debt must be shown to be existing. In this case the proof shows that the writings obligatory of Levin Carey, the deceased, which are exhibited as the evidence of his debt, were voluntary gifts, and it has been argued on the part of the appellees, that for that reason alone, if there were no other objection, the complainants are not entitled to enforce their payment by a proceeding under the act of 1785. Upon that question, however, we do not mean to express any opinion, as the case before us does not demand it.
It appears from the evidence in the cause that they were not delivered, nor designed to be delivered to the obligees till after the death of Levin Carey; during his lifetime they were inchoate papers, revocable at his pleasure, not intended by him to constitute any binding obligation upon himself or his estate, or to confer any right upon the obligees, or to have [**28]  any effect whatever till after his death. If this be so, then they are not evidences of debt, but in the nature of testamentary papers.
This principle is abundantly established by the numerous authorities cited by the appellees' counsel, and it is unnecessary for us to refer to them more particularly. In the language of Justice Buller, "the cases have established that an instrument 

 [*17]  in any form, whether a deed poll or indenture, if the obvious purpose is not to take place till after the death of the person making it, shall operate as a will." Habergham vs. Vincent, 2 Ves., Jr. 231.
It has been contended, on the part of the appellants, that the operation of the instrument as testamentary or otherwise, is a question of intention, and that inasmuch as the evidence shows that Levin Carey, at the time of executing these papers, did not suppose he was making a will, they cannot be held to operate as testamentary, without defeating his intention. This argument was urged in the case of Habergham vs. Vincent, and is conclusively answered by the learned judge in the opinion from which we have just quoted; he says, (page 230,) "But it was argued for the plaintiff [**29]  that the testator did not intend to make a will when he executed a deed, and therefore it cannot operate as a will. Whether the testator would have called this a deed or a will, is one question; whether it shall operate as a deed or a will, is a distinct question, that is to be governed by the provisions of the instrument. A deed must take place upon its execution, or not at all. It is not necessary for a deed to convey an immediate interest in possession, but it must take place as passing that interest to be conveyed at its execution; but a will is quite the reverse; it can only operate after death."
The rule, as thus expressed by Justice Buller, and as deducible from the authorities, we understand to be, that where an instrument does not operate inter vivos, but is made to depend for its whole operation upon the event of the death of the maker to consummate it, then it can only take effect as testamentary. In our opinion, this does not in any manner conflict with the principles announced by the late Court of Appeals, in Hannon vs. Robey, 6 Gill 463, and 9 Gill 440; nor with the decision of this court in The Mayor & City Council of Baltimore vs. Williams, 6 Md. 235. [**30]  In those cases the instruments under consideration were indentures, executed and recorded in the lifetime of the grantor, which were held to operate as deeds, not as testamentary papers.

 [*18]  In our opinion, the case before us is wholly unlike those; here, as we have said, the proof establishes that these writings obligatory were executed by Levin Carey for the sole purpose of making provision for his sons, the obligees, to take effect after his death. But whatever may have been the real intention of Levin Carey, it is clear that to vest any interest in the obligees, or, in other words, to create debitum in presenti, a delivery of the bills obligatory to the obligees in his lifetime, or to some one for their use, was necessary. Delivery is essential to the validity of every deed. This need not be made directly to the party who is to take, but may be made to a third person to hold for him as his trustee; in such case there is a present interest vested, the delivery being regarded in law as if made to the party himself; upon that principle the case of Waring's Admr. vs. Edmonds, 11 Md. 424, was decided.
But the facts of this case do not bring it within [**31]  that principle; here the writings obligatory were delivered to Solomon Carey, to be held by him, not as the agent or trustee for the obligees, but as the agent or custodian for Levin Carey, who, so far from parting with his dominion and control over them, expressly reserved the power to revoke them at will. Under these circumstances, the delivery of the papers to Solomon Carey could no more vest an interest in the obligees during Levin Carey's lifetime, than if they had remained in his own possession; for the possession of Solomon Carey, as his agent, was his possession. Nor could the delivery of them by Solomon Carey, after the death of Levin, give effect to them as binding obligations of the deceased.
If we are correct in saying that Solomon Carey, in whose custody the papers were placed, was the mere agent of the deceased, and we think that is the plain conclusion from the evidence, then it is clear, upon principle and authority, that such agency was revoked by the death of Levin Carey, and could not afterwards be executed.
In such a case the doctrine of relation does not apply. It has been held in many cases, and is doubtless the law, that where a deed is delivered as an escrow [**32]  to a third person, to be 

 [*19]  delivered to the grantee upon the performance by him of a certain condition, and it be afterwards delivered to the party upon the performance of the condition, such second delivery may, by a fiction, relate back, and the deed take effect from the first delivery, and this has been held even where the grantor has died in the intervening time, or, being a feme sole, becomes covert; upon the principle ut res magis valeat, &c.
But in this case there is no pretence that the bills obligatory were delivered as escrows, or that the obligees named therein could entitle themselves to their possession by the performance of any condition, or by any other act on their part. During the lifetime of Levin Carey, they remained subject to his control, and liable to be revoked by his own act. They created no debt in his lifetime, and the delivery to the obligees, after his death, was a void act, which vested no right in them as creditors.
The case of Wheelwright vs. Wheelwright, 2 Mass. 447, involved questions analogous to those we are considering, and the counsel for the appellants have relied upon it as conclusive of this case.  [**33]  From the distinguished learning of the judge who delivered the opinion in that case, and of the court which decided it, its authority is entitled to very great respect; it has been followed in several of the decisions in other States, which have been cited by the appellants' counsel.
The same questions were also discussed with great ability and decided by the Supreme Court of Georgia, in the case of Wellborn vs. Weaver, 17 Ga. 267, which was not cited in the argument, but to which the attention of the court has since been called. In this last case the ruling of the Supreme Court of Massachusetts, in Wheelright vs. Wheelright, is examined with much ability, and its correctness questioned.
Without adopting all the conclusions announced in Wellborn vs. Weaver, we think that much of the reasoning upon which that case was decided is sound, and it has had great weight in the determination of the question before us.
This case is, however, different in several important features from both of those; here the papers are not deeds of indenture registered in the lifetime of the grantor, or delivered as escrows; 

 [*20]  they are writings obligatory, voluntary [**34]  gifts, revocable at his pleasure, placed in the hands of an agent of the obligor, not to be delivered, and, in point of fact, not delivered to the complainants till after his death, and we are of opinion that they cannot be enforced under the act of 1785, as debts due by Levin Carey, or have any operation except as testamentary papers.
Decree affirmed, without costs. 

193 of 196 DOCUMENTS 

GUSTAVUS BEALL vs. GEO. A. PEARRE, Adm'r of ABRAHAM BROWN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 Md. 550; 1859 Md. LEXIS 6 

January 26, 1859, Decided 

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

This was an action on the case brought on the 5th of September 1855, by the appellant against the appellee, to recover damages for an alleged breach of warranty in relation to sixty-nine barrels of beef, alleged to have been sold by the defendant's intestate to the plaintiff, in February 1846. The counts in the declaration, as well as the agreements of counsel, are fully stated in the opinion of this court. Pleas, non assumpsit, limitations, and plene administravit.

1st Exception. The plaintiff, to support the issue on his part, under the agreement of counsel, read to the jury the evidence taken in a former suit, brought on the 19th of March 1847, by Brown against Beall, upon a promissory note, as found in the printed record in the chancery case of Beall vs. Brown, and then offered some additional testimony by witnesses who were examined in the former suit at law, relating, however, to the same matters involved in that suit. The defendant, to support the issue on his part, offered in evidence the proceedings, and verdict, and judgment, including the evidence set out in the bills of exceptions in the former suit at law on the [**2]  note, and all the papers in that cause, including the prayers granted and rejected by the court, and also the agreement of counsel as to the pleadings. The defendant also offered in evidence the bill in chancery in the case of Beall vs. Brown, and the answer of Brown to the bill, and the exhibits and all the evidence in that case. The evidence and the proceedings in both these former suits, are sufficiently stated in the opinion of this court. The plaintiff then asked the court to instruct the jury, in substance, as follows:

1st. If the jury shall believe, from the evidence in the cause, that, on the trial at law between Brown and Beall, on the note in the case offered in evidence in this suit, Brown, by his counsel, insisted before the court and jury, that he had sold the beef in controversy to Beall, and had not left it with Beall to be sold on commission; and if they further believe that the jury found or believed that Brown had so sold the beef to Beall, and had not left it with him to be sold on commission, the defendant in this case cannot be permitted to deny that he did so sell the beef to Beall, and that it was not left by Brown with Beall on commission, because such [**3]  a defence would impute to the present defendant, himself, a fraud upon the administration of justice in this court.

2nd. If the jury shall believe, from the evidence in the cause, that, in the trial of the case of Brown vs. Beall, in this court, on the note now offered in evidence, Brown, by his counsel, insisted and maintained before the court and jury, that he had sold the beef to Beall, and had not left it with him to be sold on commission, and that Brown, by his counsel, prayed the court to instruct the jury as follows, (here Brown's two prayers granted in the former trial, and set out in the opinion of this court, are inserted,) and that the court, in that trial, granted said prayers, and so instructed the jury; and if they shall further believe that the jury, in said suit on the note, believed and found, in making up their verdict in that case, that Brown had sold the beef to Beall, and that the beef was of some value, and that Beall, the then defendant, after he discovered that the representations so made to him, as stated in said prayer, were not true, dealt with the beef as his own, and sold it without returning the same, or offering to return it, to Brown, and that the [**4]  jury, in that case, found a verdict for the full amount of the note and interest, that then the verdict and judgment in that case, on the note, does not preclude the plaintiff from recovering in this case.

3rd. If the jury believe, from the evidence in the cause, that the defendant's intestate sold the beef mentioned in the declaration to the plaintiff, and warranted it to pass as beef No. 1, in Baltimore market, with the bona fide expectation that the plaintiff would be able to sell it as beef No. 1 quality, and undertook and promised that if the plaintiff should not be able to sell as beef No. 1 quality, or at a price equal to the price at which the plaintiff had bought it, that he would be answerable to the plaintiff, and pay and make up to him any loss he might sustain on the beef, then the plaintiff's proper remedy upon such warranty, promise and undertaking, for the default of the defendant's intestate in the premises, is by suit, and that his right to recover in any such suit was not involved in the issue or issues in the suit heretofore brought by the defendant's intestate against the plaintiff, to recover the amount of the promissory note which the plaintiff had given [**5]  him for the balance of the purchase money; and notwithstanding the recovery had by the defendant's intestate in his suit, against the plaintiff on said note, the plaintiff is not precluded from recovering, in the present action, such damages as the jury shall believe, from the evidence, the plaintiff sustained, in consequence of any breach of the aforesaid warranty by the defendant's intestate, and of any default by him in his aforesaid promise and undertaking.

4th. If the jury believe, from the evidence, that the defendant's intestate was a citizen of Virginia at the time he sold the beef, in the declaration mentioned, to the plaintiff, and that immediately after the sale, he returned to Virginia, beyond the limits of Maryland, until the time of his death, and that after making such sale, he was never afterwards within the limits of Maryland, excepting the time when he came as a suitor to attend the trial of a case heretofore pending in this court, wherein he was plaintiff and Beall was defendant, and that he only remained in this State whilst he was attending the term of the court at which such trial was pending, and that immediately after the jury had rendered their verdict [**6]  in that trial, he returned to his home in Virginia, and there remained continuously till his death, then the defendant is not entitled to the defences set up by the pleas of limitations filed in this cause, unless they shall believe that the defendant's intestate, instead of returning to his home aforesaid, within a reasonable time after the conclusion of said trial, tarried and remained in this State over such reasonable time, and longer than it was necessary for him to prepare for and make his return journey, or unless they shall believe that more than three years have elapsed since the granting of letters of administration to the defendant on the estate of said intestate, and the commencement of this suit.

The defendant then offered the following prayers:

1st. If the jury shall believe from the evidence in the cause, that the defendant's intestate was within this State at the time of making the contracts, as stated in the first and second counts of the plaintiff's declaration, (if they shall believe such contracts to have been made,) and remained in the State a sufficient time to afford the plaintiff an opportunity of effectually suing him, and that the plaintiff was aware [**7]  of such presence of said Brown in this State, and that more than three years have elapsed from the time of making said contracts to the time of Brown's death, then the plaintiff is barred by limitations, from recovering against the defendant under said first and second counts, even though the jury should believe from the evidence, that Brown, at the time of making such contracts and continuously up to the time of his death, resided beyond the limits of Maryland.

2nd. If the jury shall believe from the evidence in the cause, that after the causes of action mentioned in the declaration in this case accrued, Brown was in Maryland, attending the sitting of Allegany county court, at the trial of the cause, on the note now in evidence in this case, long enough to have been served with process, in any suit that might have been brought by Beall against him, and that Beall knew of such presence of Brown, then this action is barred by the statute of limitations.

3rd. If the jury believe from the evidence, that Brown was present in Maryland at the time of making the contracts, as stated in the first and second counts of the plaintiff's declaration, (if they shall believe such contracts [**8]  to have been made,) and that more than three years elapsed from between the making of them and Brown's death, then the plaintiff is barred by limitations, from recovering in this cause under said first and second counts.

4th. If the jury shall believe from the evidence in the cause, that Brown, in 1847, brought an action against Beall in Allegany county court, and that said action was tried in said court in 1849, and that the cause of action, pleadings, agreement, evidence and instructions of the court, as offered in evidence by the defendant in this cause, were the same cause of action, pleadings, agreement, evidence and instructions in that case, and that the jury in that case found a verdict for Brown, for the entire amount of the cause of action in that case, and that judgment was rendered on said verdict by the court, and if the jury shall believe that the beef, and the contract and bargain in relation thereto, are the same mentioned in the evidence, both in that case and in this, then such a state of facts is a bar to the recovery in this cause.

5th. If the jury shall believe the facts as stated in the preceding prayer, (made a part of this,) then the plaintiff cannot [**9]  recover in this case, on the third count in the declaration.

The court (PERRY, J.,) granted the plaintiff's second and the defendants first prayer, and rejected all the others on both sides, and the plaintiff excepted to the refusal to grant his first, third and fourth prayers, and to the granting of the defendant's first prayer.

2nd Exception. After the argument of the case had been closed, and the jury was about to leave the box, the court, in answer to an inquiry made by the foreman, further instructed the jury, that if they should believe from the evidence, that the beef in the declaration mentioned, was deposited with Beall, to be sold on commission, then their verdict must be for the defendant, but if they should believe, that the beef was absolutely sold with warranty, then they might find for the plaintiff. To this instruction the plaintiff excepted, and the verdict and judgment being in favor of the defendant, appealed.  

DISPOSITION:
Judgment reversed, and no procedendo awarded.  

HEADNOTES:

A verdict and judgment upon the merits, in a former suit, is, in a subsequent suit between the same parties, where the cause of action, damages or demand is identically the same, conclusive against the plaintiff's right to recover, whether pleaded in bar, or given in evidence under the general issue, and such prior verdict and judgment need not be pleaded by way of estoppel.

The decision of a court upon a claim in a former action, is as effectual a bar to a recovery in another suit, upon the same cause of action, as that of a jury; and the fact that the court's decision was wrong, does not give the injured party the right to bring another suit upon the same claim, for he might have appealed, and had the error corrected.

As between the original parties to a bill or note, the total or partial want or failure of consideration, may be relied on as a defence, and a partial failure avoids the note only pro tanto.

In a suit upon a promissory note, the maker, as a defence, relied upon and gave evidence of a breach of warranty in relation to certain barrels of beef, for which the note was given. The court, by an instruction given to the jury, decided against this defence, and the verdict and judgment were in favor of the plaintiff, for the full amount of the note. HELD:

That this decision by the court, though erroneous, upon the defendant's claim, was a bar to a subsequent action by him against the plaintiff, upon the same breach of warranty; for having failed to correct the error by appeal, he is not entitled to relief in a new suit.

An instruction to the jury, that if they believe "that the beef, in the declaration mentioned, was deposited with the plaintiff, to be sold on commission, then their verdict must be for the defendant," is erroneous, because nothing is said of the terms on which the jury might have believed the deposit was made.  

COUNSEL:
Thos. J. McKaig for the appellant:

1st. The appellant's first prayer ought to have been granted. By reference to the answer of Brown in the chancery case, it will be found that it is there [**10]  admitted, that in the trial at law on the note, Brown insisted before the court and jury, that he had sold the beef to Beall, and that the jury so found, by which means Beall failed in his defence to the note. He and his administrator are, therefore, estopped from denying the sale in this trial, and setting up a bailment. To permit him to do so would be to sanction a fraud upon the administration of justice. In the case of The Phil. Wil. & Balto. Rail Road Co., vs. Howard, 13 How., 307, the supreme court decided, that a party who had asserted in a court of justice, that an instrument on which an action of assumpsit had been brought against him, was a sealed instrument and had defeated the action on that ground, could not be heard in a subsequent action of covenant upon the same instrument to deny his seal to the instrument. The doctrine of that case was adopted by this court in Scaggs vs. The Balto. & Wash. Rail Road Co., 10 Md. Rep., 280.

2nd. The appellant's third prayer presents the proposition, that Beall was not precluded from recovering, in the present action, damages for the breach of warranty, by the former suit on the note. The defendant's fourth prayer puts the reverse [**11]  of this position, and asserts that the former suit is a bar to a recovery in this. In the former suit the court granted an instruction in effect, that if the jury believed the beef was sold and was of some value, the defendant could not set up as a defence the fact, that the plaintiff made false representations to the defendant, as to the quality and condition of the beef knowing them to be false, in other words, that there must be a total failure of consideration, in order to defeat the plaintiff's recovery on the note provided the transaction was a sale. The jury did believe it to be a sale, and that the beef was of some value, and, therefore, gave their verdict for the plaintiff, for the full amount of the note. It is perfectly manifest from this view of the case, that the defence as to the breach of warranty for which this suit is brought, never was passed upon by the jury in the former suit. The instruction of the court withdrew it altogether from the consideration of the jury. It was in fact never passed upon by them. The decision of the court was binding upon the parties to the suit. It was the judgment of a court of competent jurisdiction, and the defendant was not bound to [**12]  appeal from it. The defendant had the right to take it as the law of the case and abide by it, and that decision having taken from the jury the consideration of his defence, his proper course was to submit and bring his cross-action for damages for a breach of the warranty, as he has done. The authorities upon the doctrine of former recovery, do not go to the extent of saying, that a defence, which by the court's instruction has been withdrawn from the consideration of the jury, is so put in issue or decided upon as to prevent a cross-suit by the party whose defence has been so treated. The pleadings or the evidence must show that the matter was in issue between the parties, and the merits of the defence passed upon by the jury. There was no plea of set-off in the former case, and the evidence which was offered as to the breach of warranty, in fact never went to the jury at all, but was ruled out by the instruction of the court. In such a case it would be extremely hard to hold that the present plaintiff is debarred a recovery. A meritorious defence never passed upon in a former suit, which, in fact, the court said the jury could not consider, may be the subject of another action,  [**13]  and there is no decision in Maryland to the contrary. In the case of Shafer vs. Stonebraker, 4 G. & J., 355, it is said, that where a former recovery is pleaded by way of estoppel, the rule by which the sufficiency of such a plea is to be tested, "is a certain and familiar one. Does it plainly appear, that the fact or right relied on as a bar, was distinctly put in issue and found by the jury in a former suit by the same parties?" The finding by the jury is necessary to bar the subsequent action, and this must plainly appear by the pleadings, when the former recovery is relied on by way of plea. Much stronger is the case, and much more certainly must it appear, that the jury by their finding passed upon the claim, where it was only offered in evidence under the general issue. But here, as I have stated, the evidence shows that not only did the jury by their finding not pass upon this claim, but were expressly forbid to do so by the instruction of the court.

3rd. The instruction of the court to the jury, after the argument was closed, was clearly wrong, for if the jury found the contract as proved, it mattered not whether it were a sale with warranty, or whether the beef had been [**14]  received to be sold for Brown, and Beall to keep, for his trouble, all he could sell it for over $ 7.50 per barrel. If they found, in either case, that Brown warranted the beef to pass as No. 1 in Baltimore, that Beall had paid for it, and that instead of passing as No. 1 in Baltimore, it was condemned as worthless, or if they found from the evidence, that Brown was to return to Beall, whatever the beef sold for less than $ 7.50 per barrel, and the whole brought only $ 3.57, or if they found that Beall had advanced $ 7.50 per barrel, on the beef, and was, by the contract, "not to lose anything by the operation," why should the fact, that the beef was deposited with Beall to be sold on commission, prevent a recovery in this case?

J. H. Gordon and Geo. A. Pearre for the appellee:

The main ground of defence in this case is, that the judgment in the former suit is a bar to the recovery in this. It is not necessary that the defence of a former recovery should be pleaded either in bar or by way of estoppel, but it may be given in evidence under the general issue. All that is necessary is, that the cause of action, damages or demand should be identically the same, and the parties [**15]  the same. 4 G. & J., 360, Shafer vs. Stonebraker. It is not the recovery, but the matter alleged by the party, and upon which the recovery proceeds, which creates the estoppel. 3 East, 355, Outram vs. Morewood. In Young vs. Black, 7 Cranch, 565, the defendant offered in evidence a record of a former suit, between the same parties, in which judgment was rendered, supported by parol proof, that the former suit was for the same cause of action as the present suit, and the plaintiff denied its admissibility under the general issue, but the court was unanimously of opinion that the objection could not be supported. One great criterion of the identity of the cause of action is, that the same evidence will maintain both actions. 2 Wm. Bl. Rep., 831, Hitchen vs. Campbell. See, also 1 Starkie on Ev., 262. 2 Smith's Lead. Cases, 442. Broom's Legal Maxims, 135. The question of warranty or no warranty was tried in the first suit upon the note, and was available as a defence to that suit, if believed by the jury, and is therefore a bar to this suit, although the ruling of the court in that case was erroneous. The defendant should have appealed from that erroneous instruction, and had it corrected,  [**16]  and his failure to do so, gives him no right to bring a new suit. The case of Smith vs. Whiting, 11 Mass., 445, decides that "though the court may have decided wrong in rejecting the evidence in the former suit, yet a new action was not the way to remedy the misfortune. Exceptions might have been filed to the opinion of the judge, or a new trial might have been had upon petition. The very evidence now relied on was offered, and an adjudication had upon it. A rehearing of the same action may be proper, but to sustain a new action, would be to throw all judgments into uncertainty and confusion." In the case of Wood vs. Jackson, 8 Wend., 43, 45, 46, Senator Seward has elaborately and ably discussed the whole law relating to former recovery, and placed it on correct grounds. See, also, 3 Cowen, 125, Gardner vs. Buckbee. 2 Bing., 377, Stafford vs. Clark. 1 Greenlf. on Ev., sec. 534. The cases of Cline & Francis, vs. Miller, 8 Md. Rep., 286, and of Perley vs. Balch, 23 Pick., 283, show that the law is now settled, that as between the parties to a promissory note, a partial failure of consideration may be relied on as a defence. In the latter case it was held, that if the purchaser of a chattel [**17]  give his note for the price, he may avail himself of a partial failure of consideration, or of deception in the quality or value of the chattel, or of a breach of warranty, to reduce the damages, in an action brought by the vendor upon such note, and he is not obliged to resort to a separate action for the deceit, or upon the warranty. The breach of warranty now sued on, was, therefore, a proper defence to the former action on the note, and it was relied on and adjudicated in that case. A former judgment is conclusive, not only as to what was decided, but also as to all that could have arisen in the case. The plaintiff is, therefore, barred from recovering the $ 220 as money had and received, because he gave it in evidence at the former trial, relied upon it as a defence, and it was available as a set-off under the agreement respecting the pleadings, if the jury had believed the defence set up. If the position here maintained is correct, the plaintiff is not entitled to a procedendo, even if the judgment should be reversed.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*559]  ECCLESTON, J., delivered the opinion of this court.  [**18]  
On the 19th of March 1847, Abraham Brown, the intestate of the present defendant, instituted an action of assumpsit against the present plaintiff, upon a promissory note for $ 289.14.
It was agreed that the defendant might plead non-assumpsit, and offer "the special matter in evidence, as fully as if he had specially pleaded the same or given notice thereof to the plaintiff."
The note was given in consideration of a contract in relation to 69 barrels of beef. Brown alleged the contract to be an absolute sale of the beef at $ 7.50 per barrel. Beall contended there was no sale, but that the beef was left with him 

 [*560]  to sell for Brown on commission; that it was estimated at $ 7.50 per barrel, on account of which, he, Beall, advanced to Brown, in cash, $ 220, and gave him the said note; and that Beall was to have all he could sell the beef for over $ 7.50 per barrel, and all that it sold for under that price Brown was to make up by crediting the same on the note. It was alleged by Beall, that Brown falsely represented the beef to be of good quality, and that it would pass as No. 1, in Baltimore; whereas it was then slippery, (which is the incipient stage of decomposition [**19]  or decay,) and finally turned out to be so bad, that after diligent efforts to sell the same, the whole only produced $ 3.57, beyond the expenses of sales.
Brown claimed the full amount of the note, and offered evidence to support his right to recover the same. Beall offered proof to sustain his defence, which was based upon the allegation, that the note had been given on account of the beef, which, at the time of the contract, the plaintiff falsely represented to be in good condition, and would pass as No. 1 in Baltimore, he then knowing it to be unsound, and Beall being then ignorant of the unsound condition of the beef.
The defendant, Beall, prayed the court to instruct the jury, that if they believed the beef was left with the defendant to sell for the plaintiff, or to do the best the defendant could with the beef; that the plaintiff obtained the note on which the suit was brought, from the defendant, by falsely pretending and alleging that the beef was of good quality, and would pass No. 1 in Baltimore, and that all he wanted with the note was, to show his partner what disposition he had made of the cattle; and that whatever the beef sold for, less than seven dollars and fifty [**20]  cents per barrel, he would credit on the note; such false representations would be a fraud on the defendant; and if the jury should believe that the defendant, in consequence of such false representations, gave the said note, the plaintiff was not entitled to recover on said note.
This prayer the court refused to give, "upon the ground, that, from the evidence in the cause, it appears that the defendant, after he discovered the false representation, (if any,) acted upon the arrangement made between the parties at the time the note was obtained, and did not elect to return or 

 [*561]  offer to return the beef and rescind the contract, and that he thereby affirmed the contract of bailment, and the plaintiff is entitled to recover upon the note, allowing to the defendant a deduction therefrom, whatever the beef sold for under the sum of $ 7.50 per barrel; provided the jury shall believe from the evidence, that the amount the beef sold for, less than the said sum, did not result from the fault or negligence of the defendant; unless the jury shall also believe from the evidence, that at the time the said note was given, the beef was so spoiled or defective that it could not, without [**21]  the fault or want of diligence of the defendant, be sold for anything."
The alternative intended to be provided for commencing with the word "unless," is not quite so explicitly stated as it might have been; but we understand the meaning of the court in the entire instruction, to be, that looking at the contract as one of bailment, then, in view of the circumstances presented in the first portion of the instruction, if believed by the jury to be true, the plaintiff would be entitled to recover upon the note such balance thereof as should remain, after allowing the defendant a deduction from the amount of the note, for whatever the beef was sold for, less than $ 7.50 per barrel; provided the loss on selling the same did not result from the fault or negligence of the defendant; unless the jury believed, that at the time of giving the note the beef was so spoiled or defective, that without fault or want of diligence on the part of the defendant, it could not be sold for anything, and then, as there would be a total failure of consideration, the plaintiff could not recover on the note. In the last contingency mentioned in the instruction, the court must be understood as meaning, either,  [**22]  that the plaintiff was not entitled to recover, or else, as meaning what is equivalent to it, which is, that the defendant was entitled to a deduction from the note for the beef, at $ 7.50 per barrel.
At the instance of the counsel for Brown, the court instructed the jury, that if they believed any article, other than the beef, was sold by Brown to Beall, and that such article formed a part of the consideration for which the note in dispute was given, and that such article was of value, then the plaintiff was not precluded from recovering on the note.
The court likewise instructed the jury, at the instance of the 

 [*562]  plaintiff's counsel, that if they believed the beef was sold and delivered by the plaintiff Brown, to the defendant Beall, and although they should believe that the plaintiff made representations to the defendant as to the quality and condition of the beef at the time of sale, knowing them to be false, yet if they believed that the beef was of some value, and that the defendant, after he discovered that the representations so made to him by the plaintiff were not true, dealt with the beef as his own, and sold it without returning the same or offering to return [**23]  it to the plaintiff; that "such facts did not constitute a defence or bar to the recovery upon the note;" notwithstanding they might believe that at the time of the sale, the plaintiff made such false representations, knowing them to be false.
The verdict and judgment were in favor of the plaintiff, Brown, for the full amount of the note; which judgment was rendered on the 10th day of May 1849.
On the 1st of March 1850, Beall filed a bill on the equity side of Allegany county court, and obtained an injunction against all further proceedings on the said judgment. The bill of exceptions taken on the trial at law, including the instructions granted by the court, was filed as an exhibit with the bill, and after answer and proof, the court below dissolved the injunction and dismissed the bill. From this decision Beall appealed, and this court affirmed the decree. See 7 Md. 393, Beall vs. Brown.
Brown has since died, the present defendant, George A. Pearre, has taken out letters of administration on his estate, and this action has been instituted against him by Beall, to recover damages upon the alleged breach of warranty, in relation to the sixty-nine barrels of [**24]  beef mentioned in the former suit.
The first count in the nar. sets out a sale of sixty-nine barrels of beef, on the 20th of February 1846, to Beall by Brown, the latter warranting the beef to be sound, and that it would pass inspection as No. 1 beef in Baltimore, whereas it was unsound and would not pass inspection as warranted.
The second count alleges, that Beall took the beef to sell for Brown, that Brown warranted and represented the same to be sound, and would pass inspection as beef No. 1 in Baltimore; that Brown falsely and fraudulently induced Beall to 

 [*563]  take the beef from him for sale, and account to him for the same at $ 7.50 per barrel; that at the time of the agreement Beall accounted with Brown at the above price, and paid him $ 220 in cash, and also gave him his note, at 90 days, for $ 289.14, as a further advance on the beef; that Beall was to have for his service and trouble in selling, all he could obtain on the sale, over the sum of $ 7.50 per barrel. This count also alleges, that the beef was unsound and spoiled.
The third count charges, that Beall purchased the beef of Brown, at $ 7.50 per barrel; that it was agreed that Brown should deliver the [**25]  beef, and that Beall should accept it, and pay for the same at that price. That at the time of sale Brown warranted the beef to be sound, and that it would pass as No. 1 beef in Baltimore. That Beall was to sell the beef, and retain for himself all he could sell it for over $ 7.50 per barrel, for his trouble and service; and whatever the beef should sell for less than $ 7.50 per barrel, Brown agreed to repay to Beall, and that he should lose nothing by the operation. It is also alleged, that Brown delivered the beef, and Beall paid him $ 220 in cash, and gave him his note for $ 289.14; that on the 15th of June 1846, "it proved and was manifest that the said beef at the time of said agreement, and also on the day and year last aforesaid, was and remained unsound and spoiled, and was not of a quality to pass as beef No. 1 in Baltimore." That Beall offered the beef in Allegany county, and failing to sell, he transported it to Baltimore, and made diligent efforts to sell the same, but the beef proved worthless, and he only realized $ 3.57 beyond the cost of sales.
The fourth count is for money had and received.
The first plea is, non-assumpsit, on which issue is taken.
There are [**26]  other pleas, but it is needless to mention them, inasmuch as the issue upon the first includes the defence on which the case will be decided.
The following is an agreement made between the parties:
"We agree in this case, that the evidence offered in a former case of Brown vs. Beall, in reference to the same subject matter, shall be read and received in evidence in the trial of this case, as taken down in the trial of the said case of Brown vs. Beall, including the letters of Sewell, Janney and Owings, 

 [*564]  with all papers and accounts as received in said trial, subject to the same exceptions, which either party could have made to the said evidence at the trial when it was taken. The said letters of Sewell, Janney and Owings, to be received in evidence, as they were on the said trial. Either party shall be at liberty to offer such other testimony as he may deem proper and shall be admissible by the same or other witnesses."
The parties also agreed, "that the clerk of the Circuit court for Allegany county, in making out the record for the Court of Appeals, shall not copy out the proceedings in the chancery case of Beall vs. Brown, which went to the Court of Appeals,  [**27]  as mentioned in the bill of exceptions; but shall insert in the record this agreement, and the record of said case in the Court of Appeals, shall be used as though it were fully set out in the record; neither shall the clerk of the Court of Appeals, in copying this present record insert the said chancery case."
Beall, the plaintiff, read the evidence taken in the case of Brown vs. Beall, in the suit upon the note, as found in the printed record in the chancery case of Beall vs. Brown. He also gave some additional evidence, by two of the witnesses who were examined in the former case at law. Their additional evidence, however, relates to the same matters involved in that suit.
The present defendant offered in evidence the proceedings and verdict and judgment, including the evidence set out in the bill of exceptions, in the case of Brown vs. Beall, on the note, and all the papers in said case, including the agreement of counsel as to pleadings.
As a ground of defence to the present action, the appellee says, the plaintiff claims damages for an alleged breach of warranty, in regard to the quality and condition of the beef in dispute; when it is manifest that the same breach [**28]  of warranty was relied upon by him as a ground of defence in the former suit against him, on the note. It is insisted that the claim now presented, was made as a defence in the former case, was considered and decided adversely to Beall, and, therefore, he cannot now recover upon such a demand.
It is not pretended that any issue made by the pleadings shows that this question upon the warranty was presented, but it is alleged the evidence shows that it was presented and decided. 

 [*565]  If this be true, it is a good defence. In Shafer vs. Stonebraker, 4 G. & J., 345, the court say: "We conceive, therefore, it may be stated as a general rule, that a verdict and judgment upon the merits in a former suit, is, in a subsequent action between the same parties, where the cause of action, damages or demand is identically the same, conclusive against the plaintiff's right to recover, whether pleaded in bar or given in evidence under the general issue, where such evidence is legally admissible; and that such prior verdict and judgment need not be pleaded by way of estoppel." See, also, Garrott vs. Johnson, 11 G. & J. 173, 182.
In reply to this ground [**29]  of defence, Beall says, although the proof may show that he gave evidence to support his defence in the former suit, on account of a breach of the warranty, yet, whether he was entitled to such a defence, by his proof, never was submitted to, or decided by, the jury. They were instructed, that if they believed the beef was sold and delivered by Brown to Beall, and it was of some value, then, although the former may have made false representations in regard to the quality and condition of the beef, knowing them to be false, and Beall dealt with it and sold it as his own, he could not claim any deduction from the amount of the note. The court held the rule of law to be, that in a suit upon a promissory note, the maker could not reduce the note by proof of a partial failure of consideration. Such being the law, as announced by the court, and the jury having given a verdict for the full amount of the note, the present plaintiff assumes that the jury decided the contract in relation to the beef was a sale, and consequently they never did decide upon the merits of his defence, in the former suit; the instruction of the court having withdrawn from them any consideration of a question [**30]  in reference to a breach of warranty, in the event of their finding the contract to be a sale, that the beef was of some value, and that he, Beal, dealt with it as his own, and sold it, without returning or offering to return it. Under these circumstances Beall's counsel insists, that in the rendition of the former verdict, it not only does not appear that the jury passed upon the merits of his present claim, but it appears they did not. Admitting (without deciding) this to be true, why was it so? The 

 [*566]  answer given to this question by the party is, that the decision of the court necessarily withdrew the consideration of this claim from the jury. If, therefore, the jury did not, the court did, decide upon it. And we can see no good reason why a decision of a court upon a claim in a former action, is not as effectual a bar to a recovery in another suit, upon the same cause of action, as that of a jury.
The ruling of the court, we think, was erroneous. If the note was given for the beef, although the contract was a sale, yet the maker of the note had a legal right to insist upon either a total or partial want or failure of consideration, in defence, according to the [**31]  extent of his proof. Cline & Francis, vs. Miller, 8 Md. 274, 285, 286.
If, however, the court gave a wrong instruction, that could not confer upon the injured party the right to bring another suit upon the same claim. He might have appealed, and had the error corrected.
In Smith vs. Whiting, 11 Mass. 445, it was held, that a second action cannot be maintained upon evidence once offered and rejected in the trial of a like action between the same parties. Speaking for the court, C. J. Parker says: "Although the court may have decided wrong in rejecting the evidence in the former suit, yet this is not the way to remedy the misfortune. Exceptions might have been filed to the opinion of the judge, or a new trial might have been had." And it is likewise said: "In the case at bar, the very evidence now relied on was offered, and an adjudication had upon it. A rehearing of the same action may be proper; but to sustain a new action, would be to throw all judgments into uncertainty and confusion."
In Grant vs. Button, 14 Johns. Rep. 377, it was decided by the Supreme Court, in New York, that "matter which was properly offered [**32]  as a defence in a former action, and rejected, cannot be made the subject of a new suit."
The law is adverse to multiplying suits; and if a party has a choice between two actions upon the same demand, and he selects one, which is decided by a competent tribunal, either for or against him, as a general rule, he will not be permitted to resort to the other.

 [*567]  Beall's counsel has insisted, through the whole course of his argument, that in consequence of the instruction given by the court upon the theory of a sale, the jury certainly decided the contract in relation to the beef, to be a sale They may have done so. But it is not perfectly certain they did. The court's instruction, provided they believed Beall was to sell the beef for Brown, did not take from the jury the consideration of the proof on the subject of warranty; on the contrary, it expressly authorized them to make such deduction from the note as the evidence in relation to the warranty would satisfy them was proper to be allowed. The court having submitted to them the inquiry, whether Beall received the beef to sell for Brown, and in case of their believing he did, then the inquiry, what deduction from the note [**33]  Beall was entitled to on account of the warranty, it cannot be considered as free from all doubt that the jury decided the contract to be a sale to Beall. And if they found that he received the beef to sell for Brown, they could not have rendered a verdict for the full amount of the note, (as they did,) without deciding upon, and adversely to, Beall's claim for any allowance on account of the alleged breach of warranty.
The verdict, however, may have been rendered by the jury, believing the contract was a sale. And if they so believed, then the instruction of the court on that hypothesis, was a decision upon, and adverse to, the claim of Beall, which authorized the jury to find a verdict for the former plaintiff's entire claim, allowing no part of that of the defendant. We, therefore, think, that in whatever aspect the former suit can be properly viewed, it does appear that Beall's claim, upon the same breach of warranty now sued upon by him, was decided. That it was put in issue, has not been, and cannot be, denied. Nor has it been pretended that, in any stage of the proceedings, any application or effort was made to withdraw the claim.
If there was a warranty, and a breach [**34]  of it, Beall had a legal right to avail himself of such a claim, in the first suit, by way of recoupment, in opposition to the note, even if the beef, for which it was given, was of some value, provided the jury believed the value of the beef included in it was less than the 

 [*568]  amount of the note. And if Beall was denied his right to recoupment in consequence of an erroneous instruction from the court to the jury, he might have corrected that error by appealing. Having failed to seek the redress which the law afforded him, he is not entitled to relief in a new suit.
It will be seen that the claim relied upon by the former defendant was an entirety, and not consisting of different elements or items, depending upon different proof. It was based upon an alleged breach of warranty, the damages for which were unliquidated. And those damages, if the defendant was entitled to any, could not, with any degree of certainty, be assumed to be the difference between the price of the beef agreed upon originally, and the price or amount for which it was finally sold. For among other considerations, in estimating the damages, it would be proper for the jury to ascertain whether any,  [**35]  and, if any, what amount of loss on the final sales, resulted from negligence or want of care on the part of Beall. The rejection of such a claim by an adverse decision, precludes any recovery upon it in a subsequent suit between the same parties.
In the present suit, the court instructed the jury, "that if they should, believe from the evidence, that the beef in the declaration mentioned was deposited with Beall to be sold on commission, then their verdict must be for defendant; but that if they should believe that the beef was absolutely sold with warranty, then they might find for plaintiff."
There was error, we think, in giving this instruction. By it the court told the jury they must give a verdict for the defendant, if they believed the beef was deposited with Beall to be sold on commission; and this they were told without any thing being said in reference to the terms on which they might have believed the deposit was made.
For this error the judgment will be reversed. But having come to the conclusion that the now plaintiff cannot recover in this action, there will be no procedendo. It is, therefore, needless to examine the other questions presented in the record.  [**36]  
Judgment reversed, and no procedendo awarded. 

194 of 196 DOCUMENTS 

WILLIAM G. FORD vs. THE STATE OF MARYLAND.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 Md. 514; 1859 Md. LEXIS 5 

January 24, 1859, Decided 

PRIOR HISTORY:
 [**1]  ERROR to the Criminal Court of Baltimore.

The plaintiff in error was indicted for murder. The indictment contains but one count, charging the prisoner with the wilful murder of Thomas H. Burnham, by shooting him with a pistol. The prisoner was arraigned, and pleaded not guilty.

The transcript of the record sent to the Court of Appeals sets out the presentment, indictment, arraignment, plea, the empannelling of a jury to try the case, and then states that the jury, "upon their oath aforesaid, do say, to wit: on the fourth day of October, in the year aforesaid, that the said William G. Ford is guilty of the felony and murder above charged and imposed upon him; and thereupon, on the prayer of the counsel of the said William G. Ford, the said jury, that is to say, the said" (naming the individual jurors) "so elected, tried and sworn, as aforesaid, to say the truth of and upon the premises aforesaid, being polled and severally named, upon their oath aforesaid, do say that the said William G. Ford is guilty of the felony and murder above charged and imposed upon him, and that said felony and murder is murder in the first degree."

The docket entries of the court below, which [**2]  it was agreed by the State's Attorney and the counsel for the prisoner, should be incorporated into the record of the case in the Court of Appeals, as if brought up under a writ of diminution, show the following entry or entries: "Oct. 4th, 1858, Verdict, Guilty of murder. Jury polled, Guilty of murder in the 1st degree."

The prisoner, by his counsel, moved in arrest of judgment for a new trial, and also made the following motion:

"The prisoner, by his counsel, comes into court here and moves the court to strike out all of the entries made on the docket of the court in this case on the fifth day of October, which entries are in the words and figures following, that is to say: 'Jury polled, Guilty of murder in the 1st degree;' which words here set out, were not found by the said jury, and were not on the docket of this court when the clerk ordered the jury to hearken to the record of their verdict as recorded in the said case by this court; the simple entry at that time being, 'Guilty of murder,' as the verdict of the jury; and these words lastly herein set forth, that is to say, 'Guilty of murder,' being the only words on the docket of the clerk on the day after the verdict [**3]  was found, which was the evening of the 4th of October 1858, and the other words and figures hereinbefore set forth, that is to say, 'Guilty of murder in the 1st degree,' were added by the clerk of this court on the day following that on which the jury found their verdict in the said case, and on the day after the said jury had been discharged, which was an excess of authority by the said clerk, and illegal."

The counsel for the prisoner then filed the following reasons in support of the motion in arrest of judgment:

"1st. That the jury who were empannelled to try the said case, and who did find a verdict therein, did not find of what degree of murder they found the prisoner guilty, but their verdict, as announced in the court, and as recorded by the clerk, was in these words, 'Guilty of murder.' And this finding of the jury is insufficient to enable the court to pass sentence, and therefore insufficient and void.

"2nd. Because the jury who tried the said case, and who found a verdict therein, did not unanimously pronounce a verdict in the said case of murder, and at the finding of the said verdict say further, of what degree they found the said murder, of which they [**4]  had convicted said prisoner, to be, which they were required to do by the act of Assembly of this State, in such case made and provided; and the said verdict is therefore void.

"3rd. Because it is the duty and sole right of the jury who try a case of murder, to find the degree, if they convict the accused of the crime of murder, and to find the degree of which they do convict, as a part of their verdict, and to announce it as such, which was not done by the jury in this case, and therefore the verdict of the jury is void.

"4th. The jury rendered their verdict in this case on Monday evening, the 4th instant, and the verdict recorded by the clerk on that evening, was simply and only in the words, 'Guilty of murder,' and no more. These were the only words on the docket on the morning of the 5th instant, the day after the rendition and recording of the said verdict, and when the counsel for the prisoner examined the docket of this court, and saw the manner and form of the verdict, they desired the clerk to make no change of the said verdict as recorded, in any way, and he said that he would not; and they, the counsel for the prisoner, came into this court and made a motion in [**5]  arrest of judgment, basing their motion on the said verdict. Since they made the said motion in arrest, they have discovered that the said clerk has added to the verdict aforesaid, 'Jury polled, Guilty of murder in the first degree,' which is no part of the verdict, and the said clerk had no right to make such addition, and the defective verdict recorded by the said clerk is not and cannot be amended by the improper and unauthorised addition of the said clerk, made as aforesaid."

Reasons in support of the motion for a new trial were then filed, but need not be stated. The prisoner, by his counsel, then filed the following affidavits:

"State of Maryland, City of Baltimore, to wit:--On this 21st day of October, in the year eighteen hundred and fifty-eight, before the subscriber, a justice of the peace of the State of Maryland, in and for the city of Baltimore, personally appeared Wilson C. N. Carr, and made oath on the Holy Evangely of Almighty God, as follows, viz: that he was in the criminal court on the evening when the jury rendered their verdict in the case of the State vs. William G. Ford; that he was standing within a few feet from the seat occupied by Mr. Schley, the [**6]  deputy clerk, and that the following are the facts and circumstances attending the rendition of said verdict, viz: Mr. Schley asked the jury in the usual form, 'Gentlemen of the jury, have you agreed upon your verdict?' to which they responded, 'Yes.' Mr. Schley then said, 'Who shall say for you?' to which they responded, 'The foreman.' Mr. Schley then ordered the prisoner to stand up, and to hold up his right hand; he then addressed the jury, 'Gentlemen of the jury, look upon the prisoner, how say you, is William G. Ford, the prisoner at the bar, guilty of the matter whereof he stands indicted, or not guilty?' to this the foreman responded, 'Guilty.' Mr. Schley then said, 'Gentlemen of the jury, hearken to your verdict as the court hath recorded it, your foreman saith that William G. Ford, the prisoner at the bar, is guilty, and so you say all?' Just at this time Mr. Hack appeared in court, and asked Mr. Schley what was the verdict? He replied, 'Guilty,' and added that it was 'first degree.' Mr. Hack said, 'What did the jury say?' Mr. Schley responded, 'They said guilty.' Mr. Hack then said, 'You must only record what the jury said;' and then he demanded a poll of the jury. Mr. Schley [**7]  then said to the jury, 'Gentlemen, answer as your names are called,' and, calling the foreman's name, he asked this question, 'How say you, guilty or not guilty?' to which the response was, simply, 'Guilty;' and so did each juror answer as his name was called. And the said W. C. N. Carr further makes oath, that he had a conversation with Mr. Schley, on the same evening, in the clerk's office, after the court had adjourned, in which he told Mr. Schley that the verdict was not properly taken and entered; that the jury ought to have ascertained the degree of the crime. Mr. Schley said, that it was all right; that it had been decided not to be necessary to designate the degree; a general verdict of guilty meaning, he said, guilty of the highest grade of offence. This deponent then asked Mr. Schley how, when he came to make up the full record in the case, he could insert the words, 'that the said Wm. G. Ford is guilty of the murder aforesaid, above charged and imposed upon him, and that the said murder is of the first degree?' &c.; to this Mr. Schley replied, that he was not bound by the form in Harris' Entries, and that he would have no trouble about making the record.

Sworn before--DANL.  [**8]  E. MYERS."

"On this 21st day of October 1858, in open court, in the criminal court of Baltimore city, appeared Archibald Stirling, Jr., and makes oath that he was present in court at the rendition of the verdict in the case of Wm. G. Ford; that he has read the affidavit of W. C. N. Carr, hereto annexed, and that his recollections of the facts is the same as Mr. Carr's, except that his recollection is, that when Mr. Hack came into court and asked Mr. Schley 'What was the verdict?' Mr. Schley answered, 'Guilty generally,' and added, 'that means murder in the first degree.' Mr. Hack replied, 'What did the jury say?' and then demanded the poll. His recollection as to the question asked by Mr. Schley to the jurors, on the poll, is the same as Mr. Carr's. This deponent also says, that he knows nothing of the conversation between Mr. Carr and Mr. Schley, mentioned in the affidavit of Mr. Carr.

Oct. 21st, 1858. Sworn to in open court.

THOS. H. GARDNER, Clerk."

"Oliver F. Hack, being duly sworn in open court here, deposeth and saith, that on the evening of the rendition of the verdict in this cause, after the same had been rendered, and whilst there was some discussing going [**9]  on between the jury and the court, he entered the court room, and advancing to the desk of the then acting clerk, Mr. Schley, inquired of him, Mr. S., what the verdict was? to which he replied, 'Guilty of murder.' Some person standing near remarked, at the same time, that no such verdict had been rendered; that the jury, when asked to hearken to their verdict, stated merely that he, the prisoner, was guilty, and nothing was said of murder. Mr. Schley then observed, that the verdict of guilty meant guilty of murder in the first degree. Deponent then stated to Mr. Schley that the meaning of the verdict was a matter of legal construction, and that although the verdict was recorded as guilty of murder, when it should merely have been guilty, that he must not change or affect that verdict. The poll of the jury having been asked by deponent thereupon, nothing was said to them as to the degree of the murder found by them, but, when responding to their names, they were asked to say merely whether the prisoner was guilty or not guilty, to which they severally replied, 'Guilty.' The verdict was recorded on the evening of its rendition, stood without any addition or any qualification, and upon [**10]  the application of deponent, on the next morning, that Mr. Schley should not make any change in the record, he stated that he would not. He afterwards did so, by inserting the poll as it appears.

Oct. 21st, 1858. Sworn to in open court.

THOMAS H. GARDNER, Clerk."

"I was present in the criminal court on the night when the verdict in the case of the State vs. Ford was rendered. The jury were called, and, through their foreman, rendered a verdict of 'Guilty.' I am the more certain of this, as the sufficiency of such a verdict was, at the very moment, made a subject of discussion between a professional brother and myself. Immediately after the rendition of the verdict, Mr. Hack came within the bar, and demanded the polling of the jury, when the clerk, Mr. Schley, put to each of the jury, calling them by name, the same question that he had put when the foreman answered for the whole, viz: 'How say you, is William G. Ford, the prisoner at the bar, guilty of the matter wherewith he stands charged, or not guilty?' This statement is given at the request of the counsel for the prisoner.

ROBT. D. MORRISON."

"On this 21st day of October 1858, before me, the subscriber,  [**11]  a justice of the peace of the State of Maryland, in and for the city of Baltimore, personally appeared Robt. D. Morrison, and made oath that the matters and facts hereinbefore stated are true, to the best of his knowledge and belief.

DANL. E. MYERS."

By order of the court, the following certificate, signed by all of the jury who tried the case, was filed:

"We, the undersigned, jurors empannelled and sworn to try the issue between the State of Maryland and William G. Ford, indicted at the September term of the criminal court of Baltimore, for the murder of Thomas H. Burnham, do hereby certify, that on the night of the 4th of October 1858, the jury in said cause having agreed upon their verdict, were placed in the bar to render the same. That the clerk of the court turned to the jury and said: 'Gentlemen of the jury, have you agreed upon your verdict?' Our foreman answered, 'Yes.' Clerk, 'Who shall say for you?' The jury said, 'Our foreman.' The clerk said, 'William G. Ford, stand up, and hold up your right hand; Gentlemen of the jury, look upon the prisoner at the bar, what say you, is Wm. G. Ford, the prisoner at the bar, guilty of the matters whereof he stands indicted,  [**12]  or not guilty?' Our foreman answered, 'Guilty as charged in the indictment.' The clerk said, 'Gentlemen of the jury, hearken unto your verdict as the court hath recorded it; your foreman saith that Wm. G. Ford, the prisoner at the bar, is guilty of the murder whereof he stands indicted, and so you say all?' Mr. Hack, the prisoner's counsel, then asked that the jury be polled; whereupon the clerk said to our foreman, in our hearing, 'Daniel D. Hobbs, is William G. Ford, the prisoner at the bar, guilty of murder in the first degree, or not guilty?' Our foreman said, 'Guilty.' The question was then put to each of us, by name, 'What say you, guilty or not guilty?' We each of us, in turn, answered, 'Guilty;' thereby meaning, intending, and most assuredly understanding our verdict as 'Guilty of murder in the first degree.'"

By order of the court, also, the following affidavit of the clerk who received the verdict, was filed in court:

"Be it known, that on this 8th day of October, A. D., 1858, before me, the subscriber, a justice of the peace of the State of Maryland, in and for the city of Baltimore, personally appeared Wm. Louis Schley, and made oath in due form of law, that he [**13]  was the clerk who received the verdict from the jury empannelled to try Wm. G. Ford, indicted for murder, at September term of the criminal court of Baltimore, and that the said verdict was rendered before said court on the evening of October 4th, 1858, in manner following: When the jury were placed in the bar, the following questions were asked by him, the said Wm. Louis Schley: 'Gentlemen of the jury, have you agreed upon your verdict?' 'Yes.' 'Who shall say for you?' 'The foreman.' Clerk, to prisoner, 'Wm. G. Ford, stand up, hold up your right hand'--'Gentlemen of the jury, look upon the prisoner at the bar, what say you, is William G. Ford, the prisoner at the bar, guilty of the matter whereof he stands indicted, or not guilty?' Answer by the foreman--'Guilty.' 'Gentlemen of the jury, hearken unto your verdict as the court hath recorded it, your foreman saith that Wm. G. Ford, the prisoner at the bar, is guilty of the murder whereof he stands indicted, and so you say all?' Mr. Hack then asked that the jury be polled; whereupon the clerk, the said Wm. Louis Schley, said to the foreman, 'Is Wm. G. Ford, the prisoner at the bar, guilty of murder in the first degree, or not guilty?  [**14]  '--this question was put to the foreman alone--to which question the foreman, Danl. D. Hobbs, answered, 'Guilty.' The question of 'What say you, guilty or not guilty?' omitting the words 'first degree,' was put in turn to each juror of the remaining eleven, who in turn answered, 'Guilty.'

CHARLES ALEXANDER."

The court (STUMP, J.,) filed the following opinion:

"CRIMINAL COURT OF BALTIMORE,--State of Maryland vs. William G. Ford--Indicted Sept'r term 1858, for the murder of Thomas H. Burnham.

"After a verdict was found, motions in arrest of judgment and for a new trial were made by Cowan and Hack, counsel for the prisoner, and assigned the following reasons, in substance, for arresting the judgment of the court:

"1st. That the jury who were empannelled, and who did find a verdict therein, did not find what degree of murder the prisoner was guilty of.

"2nd. Because the jury who found the verdict did not unanimously pronounce a verdict in said case of murder, nor find the degree of murder, as they were required by the act of Assembly to do.

"3rd. Because it was the duty and sole right of the jury, who try a case of murder, to find the degree of which they [**15]  convict the prisoner.

"4th. The jury rendered their verdict on Monday evening the 4th inst., and the verdict then recorded by the clerk was simply in the words, guilty of murder, and no more; on the succeeding morning after the jury had been discharged and the prisoner was absent, contrary to the request of his counsel, inserted on the docket of the court the words: 'Jury polled--guilty of murder in the first degree;' without the order of the court or authority of law, &c.

"The prisoner's counsel also move the court to strike out the words, 'Jury polled--guilty of murder in the first degree;' which were written on the court docket, the morning after the rendition of the verdict, by the clerk of the court, &c.

"The reasons assigned for the motion for a new trial are in substance:

"1st. Because the verdict is contrary to the evidence.

"2nd. Because the verdict is contrary to the weight of evidence.

"3rd. Because of irregularity in empannelling the jury.

"4th. Because one of the jurors who was empannelled to try the said cause was not of the legal age to act as a juror.

"5th. Because a juror who tried the case was disqualified to try the case by [**16]  having expressed an opinion previously.

"The reasons filed for a new trial were not argued before the court, and no evidence offered to the court to prove any of the facts stated in them, wherefore the court had no grounds for considering them otherwise than as abandoned by the prisoner's counsel.

"The motion to arrest the judgment, and the preliminary one to strike out the entries of 'Jury polled--guilty of murder in the first degree,' (which seem to be inseparable,) were argued at length and relied upon by the counsel for the prisoner.

"Mr. Cowan, in favor of the motion, argued, that the act of 1809, ch. 138, sec. 3, enacted, that murder in the State of Maryland shall consist of two kinds, viz., murder in the first degree and murder in the second degree, and if the jury find any one guilty of murder in the first or second degree, they must find the degree in their verdict, otherwise the court cannot pronounce judgment on the prisoner, according to the act, which punishes murder in the first degree with death, and murder in the second degree with confinement in the penitentiary. He contended that neither the clerk nor the court could add one word to the minutes of the [**17]  verdict entered as taken in the presence of the jury and the prisoner, nor subtract a word from the verdict or minutes after the jury were discharged, nor could the jury themselves be allowed to correct any mistake in the minutes, taken by the clerk after they were discharged. In support of this doctrine, he read from 1st Chitty Crim. Law, and some other authorities. The act of 1809, and the affidavits of W. C. N. Carr and others, relating to the manner and some of the facts connected with the taking of the verdict by the clerk, (Mr. Schley,) which do not correspond, in some essential particulars, with the recollection of this court, nor with the affidavit of the jurors who found the verdict, nor that of the clerk who recorded the verdict; which affidavits are filed in this court and constitute a part of this record. Mr. Hambleton replied on the part of the State, and cited a number of authorities from text-books and reported cases, some of which the court has read, but has not time to digest them here. Mr. Whitney closed on the part of the State, and argued that it was not required of the jury to negative the minor offences charged in the indictment. That a general verdict on an indictment [**18]  is sufficient to cover the highest offence in that indictment. If it was the intention of the jury to convict of the smaller offence, they would have so specified in their verdict, and if the jury, under the present indictment, which contained but one count embracing murder in the first degree, rendered a verdict of guilty, that satisfied the act of Assembly. To this conclusion of law this court cannot assent. The State's Attorney referred to 6 Binney's Rep., 179, White's Case; upon examination of which it will appear that the jury found White guilty of murder in the first degree without any dispute. The only question in the case of Ford is, whether the jury did or did not find him guilty of murder in the first degree. Upon this fact in Ford's case turns all the law and evidence. Mr. Whitney cited also 7 Md. Rep., 442, Weighorst's Case, wherein the court say, if the jury find a person guilty of the smaller degree of murder they need not negative murder in the first degree; also case of Sutton in 4 Gill, and Manley's Case, 7 Md. Rep., who was found guilty of an assault with intent to kill George Konig, without negativing the count for a simple assault. But no case has been cited, or [**19]  can be found, to establish the doctrine, that where a jury find a person guilty on an indictment which covers murder in the first degree, murder in the second degree, and manslaughter, without specifying which offence he is guilty of, that the highest offence is found by such a general verdict, although finding him guilty of murder in the second degree or manslaughter will negative murder in the first degree.

"Mr. J. Nelson closed the argument for the prisoner, in most of which this court will concur, but not to the supposed facts upon which it is predicated. He argued, that the indictment was drawn according to the forms of the common law used before the passage of the act of 1809, and covered both degrees of murder, and it would be an arbitrary exercise of power by the court to determine what degree of murder the jury intended to find. That the jury are to find it as a fact by their verdict, (and not otherwise,) whether the offence be of the first or second degree of murder. The jury are bound, by the act of Assembly, to make a specific finding. If the prisoner, in court, had pleaded guilty, it would be the duty of the court to examine the evidence and ascertain the degree,  [**20]  for he could not plead guilty to the first degree. The prisoner only pleads guilty or innocent of the whole indictment, and this being the case, the jury must find in their verdict the fact and particularise the degree of murder. The proper enquiry in this case is, whether the jury have found the degree in their verdict, and if not the act of Assembly has not been gratified; nor has the court a right to find the degree instead of the jury, because the prisoner did not plead guilty. On the other hand, if the jury have determined the degree of murder that is an end of the question. He cited Binney's Rep.; 6 Gill, Ohio and Missouri Reports. He also read from 3 Vol. British Crown Cases, about the place where the culprit should be buried, which is no part of our law. This court accedes to all the legal part of this argument and adopts it all so far as it goes, but it does not reach or settle the main question of fact, whether the jury found the prisoner guilty of murder in the first degree or guilty of murder generally.

"In order to a clear conception of the law we are considering, it may be better to insert the whole of the 3rd sec. of our act of 1809, ch. 138, which is a copy of [**21]  the act of Pennsylvania of 1794; it reads in these words:

"'And whereas the several offences, which are included under the general denomination of murder, differ so greatly from each other in the degree of their atrociousness, that it is unjust to involve them in the same punishment, therefore, be it enacted, that all murder which shall be perpetrated by means of poison, or by lying in wait, or by any kind of wilful, deliberate and premeditated killing; or which shall be committed in the perpetration of, or attempt to perpetrate, any arson, or to burn any barn, tobacco house, stable, warehouse, or other outhouse, not parcel of any dwelling house, having therein any tobacco, grain, hay, horses, cattle, or goods, wares and merchandize; rape, sodomy, mayhem, robbery or burglary; shall be deemed murder of the first degree; and all other kind of murder shall be deemed murder of the second degree; and the jury, before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict whether it be murder in the first or second degree, but if such person be convicted by confession, the court shall proceed, by examination of [**22]  witness, to determine the degree of the crime, and to give sentence accordingly; and every person liable to be prosecuted for petit treason shall, in future, be indicted, proceeded against, and punished, as is directed in other kinds of murder, according to the degree.'

"Mr. Nelson also argued, (and cited some cases to shew,) that it was too late, upon polling the jury, to fix the degree of murder. That the jury must answer upon first being interrogated by the clerk, and then it is the prisoner's privilege to poll each man individually, to ascertain what his judgment was. The clerk had no right to put leading questions to the jury to bring out their verdict; that no man's life would be safe under such proceedings, &c.

"The court will finally proceed to consider the fact, whether the jury did or did not find the prisoner guilty of murder in the first degree, which (as Mr. Nelson says) settles the question. When the jury came into court it was late in the evening, and Mr. Whitney, the prosecutor, was absent on account of sudden indisposition, but the court supposed he was present to attend, as usual, to the rendition of the verdict, according to the usual manner. The clerk [**23]  asked the jury if they had agreed upon their verdict, and who should say for them, to which they responded they had agreed, and their foreman should say for them. Whereupon the clerk told the prisoner, calling by name, William G. Ford, to stand and hold up his right hand, and requested the jury to look upon him, and then asked the jury: 'How say you gentlemen, is William G. Ford, the prisoner at the bar, guilty or not guilty?' to which the jury answered guilty, and nothing more. Whereupon, and before any of the jury had left the bar, and whilst the prisoner was before them, Mr. Hack, one of the counsel for the prisoner, demanded that the jury should be polled, whereupon the court directed Mr. Schley, the clerk, who was taking the verdict, to ask the jury, when he polled them, whether they found the prisoner guilty of murder in the first degree or murder in the second degree; to which question, when it was put to the jury, the foreman answered for the jury, in the words, 'Guilty of murder in the first degree,' in an audible voice, and each of the remaining eleven jurors, when polled, responded 'Guilty,' without specifying the degree of murder in words.

"And thereupon, to wit, on [**24]  the day and year last aforesaid, all and singular the premises, being, by the court here, seen and fully understood, it is adjudged and considered by the court here, that the said several above motions, that is to say, the said above motion in arrest of judgment, the said above motion for a new trial, and the said above motion to strike out the said above mentioned entry in the said case, on the said docket of the court here, be and the same are, each of them, overruled."

The transcript then proceeds to state, that the court passed sentence of death upon the prisoner, and sets out the judgment. To correct this judgment the present writ of error was sued out by the prisoner from the Circuit court for Baltimore city, directed to the judge of the Criminal court of Baltimore. This writ states, that: "whereas at a session of the Criminal court of Baltimore, begun and held at the city of Baltimore, in and for said city, on the second Monday of September, in the year of our Lord, one thousand eight hundred and fifty-eight, a certain William G. Ford, was convicted and judgment and sentence passed thereon, ordering him to be hanged at such time and place as may please the chief executive [**25]  of the State of Maryland to appoint. And because in the record and proceedings, as also in the judgment and sentence of the said court, a manifest error hath happened, to the great damage of the said William G. Ford, as of his complaint has been stated, and it is right that the error, if any hath been, should be duly corrected, and full and speedy justice done to the said William G. Ford in this behalf: Therefore you are hereby commanded, that if the judgment aforesaid be therein given, then the record and proceedings aforesaid, with all things thereunto relating, to the Court of Appeals to be holden for the State of Maryland, under your hand and seal distinctly and openly you send, together with this writ, and the record and proceedings aforesaid, being inspected, the said Court of Appeals may further cause to be done therein, for the correcting that error, what of right and according to the laws and customs of the State of Maryland may be done."

The transcript then states that: "In pursuance whereof, and according to the act of Assembly in such case made and provided, a record of the judgment aforesaid, with all things thereunto relating, together with the said writ of error [**26]  annexed, is hereby transmitted to the Court of Appeals accordingly." This is attested by the clerk of the Criminal court of Baltimore, and is accompanied with his certificate attested by the seal of the court, "that the aforegoing transcript is a full and true record of the proceedings in the said prosecution against the said William G. Ford." 

DISPOSITION:
Judgment reversed and procedendo awarded.  

HEADNOTES:

In a trial on an indictment for murder, a verdict simply of "guilty," is insufficient, because, by the act of 1809, ch. 138, sec. 3, the jury must ascertain in their verdict the degree of the crime, whether it be murder in the first or second degree.

Jurors cannot testify in relation to the motives upon which they joined in the verdict; if, through mistake or partiality, they deliver an improper verdict, the court may, before it is recorded, desire them to reconsider it, but the jury cannot be allowed to make any alteration after the verdict is recorded.

After the foreman, speaking for the whole panel, finds a proper verdict, which is recorded, and the whole panel is called on to hearken to it as the court hath recorded it, and they have so hearkened to it, no objection being made by any juror, or the counsel for the State or prisoner, such verdict is the verdict of the whole panel, and it is then too late for any of the jury to alter or amend it, and also too late to poll the panel.

The object of a poll is to call on each juror to answer for himself, and in his own language, and where, in a trial for murder, the verdict was simply "guilty," and on being polled, the foreman alone answered "guilty of murder in the first degree," and each of the others answered "guilty," without specifying the degree in words, such verdict is insufficient, because at no time did all the jury find the prisoner "guilty of murder in the first degree."

By the Bill of Rights of this State, every man has the right to "a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty;" unanimity is indispensable to the sufficiency of a verdict.

Whatever assumes the solemnity of a judgment of a court of record, is part and parcel of the record, and examinable in the appellate tribunal on a writ of error.

Whilst the appellate court cannot find the facts, yet the judgment of the inferior court on those facts is a matter of law, and where the facts are found by the court or jury below, it is the proper and legitimate province of the appellate court to see that the inferior court has pronounced correctly the law as applicable to the facts.

Where the judge of an inferior court, in his decision, embodied in the transcript of the record sent to the appellate court, sets forth the facts occurring upon the rendition of a verdict in a trial for murder, and these facts show that all the jury did not at any time find the prisoner "guilty of murder in the first degree," the judgment of the court, upon such verdict, sentencing the prisoner to be hanged, may be reviewed by the appellate court on writ of error, notwithstanding the docket entries of the court below, both original and as extended in the transcript, show a verdict in due form, of "guilty of murder in the first degree."

In such a case, the appellate court may look to the misprision of the clerk, who is but the hand of the court, and whose duty it is, in contemplation of law, to record nothing but the proceedings of the court.

Where there has been, in the eye of the law, no valid and sufficient verdict, there must be a new trial; in such a case there is a mistrial, and the indictment being good, the prisoner may be tried anew on the same indictment. 

COUNSEL:
Wm. H. Cowan and Jno. Nelson for the plaintiff in error:

The questions presented by this writ of error are:

1st. Assuming (as in point of fact was the case) that on the 4th of October, the verdict as then recorded was simply "Guilty of murder," could there have been any judgment rendered thereon?

2nd. Is the fact of alteration by the addition of the words "jury polled--guilty of murder in the first degree," on the following morning out of the presence of the prisoner, shown to this court in such a way as that it can notice and review it?

3rd. If the original verdict as rendered and recorded would not have authorised a judgment, and the fact of such alteration or amendment so appears, had the court below the power to order or authorise such amendment or alteration to be made?  [**27]  

1st. Does a verdict of "Guilty," or "Guilty of murder," authorise a judgment? This depends upon the act of 1809, ch. 138, and to our minds there is no clearer proposition. This indictment is at common law, and not under the statute. It may mean, therefore, under this act, either murder in the first degree or murder in the second degree. The act makes no alteration in the crime of murder as it stood at the common law, but only makes grades of the offence and inflicts different punishments for the different degrees. It says, that the jury shall in their verdict ascertain the grade of the offence, in order to guide the court in inflicting the proper punishment. The court cannot grope about for the punishment, or make out from inference or conjecture what degree the jury intended to find, but must have upon the record the means of ascertaining the punishment; from the record, and from no other source, must the court ascertain the degree of the crime. A general verdict of "guilty" and so recorded, is therefore a mere nullity, and this is the more apparent from the fact, that if a prisoner pleads guilty the court is not authorised to inflict punishment of death, but is required by the [**28]  law to examine witnesses to ascertain the grade of the crime. If it was not the intention of the law, that a plea of "guilty" entered upon the record should sanction the punishment of death, how is it possible to say that a verdict of "guilty" can have that effect? Upon authority the question is equally clear. In every State in this Union where a similar statute exists, the courts have uniformly held, that where the indictment is at common law, not describing murder in the first degree under the statute, the jury must, in all such cases, find the degree in their verdict. In White's Case, 6 Binney, 183, there is a dictum, by the Chief Justice of Pennsylvania, that where the indictment is under the statute, and sets out on its face such aggravating circumstances as to constitute murder in the first degree, a general verdict of "guilty" would be sufficient. But this was but an obiter dictum, and the distinction has been repudiated by the courts of every other State, who have said, that whether the indictment be at common law or under the statute, setting out on its face every circumstance of aggravation necessary to designate murder of the highest grade, still the jury must in their verdict [**29]  ascertain the degree, and for the plain reason that the law so declares, and what a statute prescribes neither court nor jury can disregard. In Dick vs. The State, 3 Ohio Rep., N. S., 89, the question is ably discussed and clearly decided, and to the same effect are the decisions in 8 Missouri, 495, McGee vs. The State, and State vs. Upton, 20 Missouri. Weighorst's Case, in 7 Md. Rep., 442, is in no way in conflict with this view of the law or with these decisions. In 3 British Crown Cases, 301, is a remarkable instance of how rigidly statute regulations in such cases are adhered to by the courts in England. There a statute had prescribed, that in passing sentence of death upon a convict, the judge should order the remains of the party, after execution, to be disposed of in a particular mode, and the omission of the judge to make such order in that case, was held a fatal defect in the judgment and it was set aside. It is clear, therefore, that if the verdict in this case had stood as it was originally rendered, "guilty of murder," simply, no valid judgment could have been rendered upon it.

2nd. The verdict, in fact, as originally recorded, was "guilty of murder" simply. The additional [**30]  words, "jury polled--guilty of murder in the first degree," were added on the following morning, out the presence of the prisoner. This is apparent from every affidavit filed in the case, and from the opinion of the judge himself who passed the judgment. The question is, can this court look to this proof? It is urged by the counsel for the State, that this motion in arrest of judgment and the writ of error, only bring up matters of error apparent upon the record, and that as the record which they construe to mean only the presentment, indictment, plea, issue and verdict as extended in this transcript, present no such error as that complained of, this court cannot look beyond them. The affidavits in support of the motion, and the opinion of the judge, they say, constitute no part of the record, and cannot be looked to or reviewed by this court. Is this the law? We insist that it is not. The laws of Maryland do not, save in some special instances, require a record, in the technical sense of the word, to be made either in civil or criminal cases. By the uniform practice of our courts, and the absence of statutory provisions requiring judicial proceedings to be enrolled on parchment or [**31]  recorded, the docket entries constitute the only evidence or record of judicial action--these are the records of the courts, and such they were decided to be by the Supreme Court of the United States, in the case of The Phil. Wil. & Balto. R. R. Co., vs. Howard, in 13 How., 332. When therefore a verdict is rendered in a criminal case, there is no other record of it than what is written by the clerk on his docket at the time. When he asks the jury to hearken to their verdict as the court hath recorded it, what is then written or entered by him on the docket--not what rests in the recollection of the judge--is the record. The question presented here is, what was the condition of these docket entries at the time this verdict was rendered? The case is in many respects a peculiar one. It is a motion in arrest of judgment, not for any thing appearing on the face of the proceedings before the verdict was rendered, but for matters occurring subsequently. How must that be made apparent to the court below? By evidence, and that evidence must appear to this court. It is to be ascertained as a fact not by the docket entries, for the very purpose and object of the motion is to correct those entries,  [**32]  and if they estop the motion could never be made. Affidavits were filed showing the facts as they occurred. In what other way could the motion be sustained? These affidavits, we insist, are a part of the motion, and can be looked to by this court for the purpose of ascertaining the condition of the docket entries at the time the verdict was rendered, having been filed in the proceedings of the case in the court below, and embraced in the transcript of these proceedings sent up to this court. But if these affidavits do not constitute a part of the record, still, the judge of the court below, in his opinion filed in the case, has certified to this court as a matter of fact, that the entry of the words "jury polled--guilty of murder in the first degree," was not made till the day succeeding the rendition of the verdict and not in the presence of the prisoner. This is surely a part of the record, for it is always in the power of the judge to record the special matter, and his finding of a fact put upon the record is part of the record. The finding of this fact by the judge below, cannot be reviewed by this court, but the effect of that fact as a matter of law is clearly a subject of review [**33]  by an appellate tribunal. The judgment of the inferior court, or the finding of a jury upon an issue of fact, the parties have the right, ex debito justitiae, to have upon the record, and it is the proper office of a writ of error, to remove the final judgment of the court below, for the revision of the superior court, in order that such court from the premises contained in the record of the inferior court, may either affirm or reverse the judgment, as they draw the same or a different conclusion from that which has been pronounced by the court below. 60 Eng. C. L. Rep., 534, Newton vs. Boodle. The opinion or decision of the court below, in this case, set out in the record, ascertains the fact in regard to the docket, and when the alteration was made, and the effect of that fact is a matter of law which this court can review. None of the many cases cited by the counsel for the State, controvert this position.

3rd. The next question is, had the court power to allow or order the amendment or alteration of the docket to be made on the day following the verdict, and out of the presence of the prisoner? On this point there can be no difficulty. No such power exists. The verdict, whatever [**34]  may be its effect, must in all cases of felony and treason be delivered in the presence of the prisoner in open court, and cannot be either privily given or promulgated in his absence. (Chitty's Cr. Law, 635, 636.) After the verdict is recorded the general rule is, that it cannot be amended, unless, indeed the mistake appear and be corrected promptly. (1 Wat. Arch. Cr. Pr. & Pl., 177, notes.) The modern cases say, that an amendment may be made in cases where there is some note or written memorandum to amend by, but the judge cannot order an amendment from his mere recollection of what occurred upon the rendition of the verdict. Lord Denman, in the case of Queen vs. Virrier, 40 Eng. C. L. Rep., 58, had amended a verdict upon an indictment for perjury by his recollection, but when the case was brought before him in banc, he said, and all the judges concurred with him, "I was of opinion that the judge must have power in a case like this to amend by his recollection, and it is clear, that in the present instance, the amendment was one which might be made according to the truth of the facts. But, on consideration, we think that the practice of so amending would be such a dangerous one,  [**35]  that, as a general rule of discretion, the court ought to decide against introducing it. In almost all cases of amendment there has been a written document to amend by, and a misprision which was corrected by that. But if reference is made to the recollection of the judge as an individual, the great danger and abuse which might result from amending under such circumstances, in cases which might be supposed," forbid it to be allowed. If the recorded verdict of a jury, which they have been called on to hearken to, as the court hath recorded it in the presence of the prisoner, can be amended or altered by the mere recollection of the judge, without any note or written memorandum or other writing to correct by, and after the jury has been discharged and out of the presence of the prisoner, then it might be truly said there would be no security for the life, property or liberty of the citizen. In the case in 3 British Crown Cases, 301, already referred to, the judge omitted in pronouncing sentence on a conviction for murder, to order that the bodies of the prisoners should be buried within the precincts of the jail as directed by statute, but on a subsequent day during the same term, in [**36]  the absence of the prisoner, he ordered the clause to be inserted, and it was held, that this correction rendered the sentence illegal. That case is a thousand fold stronger in all its particulars than the present. See also on this point, Comyn's Dig., Amendment P.; 1 Salk, 47, King vs. Keat; Ibid., 53, Bold's Case; 1 Ld. Ray., 324, Miller vs. Trets; 1 H. Bl. Rep., 78, Spencer vs. Goter; 5 Burr., 2661, Rex vs. Woodfall.

If the above positions are correct, then clearly this judgment must be corrected. But there are also other irregularities which render the verdict insufficient. The affidavit of the clerk, which the judge below ordered to be filed in court, and thus to be made a part of the record, shows that not a single juror, when answering upon the poll, found a verdict of "guilty of murder in the first degree," as extended in this transcript, and as entered upon the docket. What is the object and meaning of a poll of the jury? It is only for the purpose of ascertaining the individual assent of each juror to the verdict as already given by the foreman. Who ever heard of an independent verdict being taken on a poll? The clerk here puts the suggestive question to the jury: "Is [**37]  Ford guilty of murder in the first degree or not guilty?" This he had no right to do, for the law says, the jury shall ascertain the degree of the offence in their verdict. The clerk had no right to suggest to them this finding. But again, even if the jury on the poll could find the grade, the affidavit of the clerk shows that not a single juror so found in his own language, and the opinion of the judge shows that the foreman alone so found, while each of the other jurors said not a word of the degree of the crime. Hence there was no unanimity in this verdict, which is a fatal defect.

J. D. Hamilton, and Milton Whitney State's Attorney for Baltimore city, for the State.

The positions maintained by the State, are:

1st. That this court in the consideration of this case upon writ of error, will be strictly confined to the record as duly authenticated, and certified by the court below, and that the affidavits and the opinion of the court below constitute no part of that record.

2nd. That upon the face of the record no errors are apparent, authorising this court to set aside the verdict and arrest the judgment.

Two other questions incidentally arise in the case,  [**38]  namely: 1st. As to the power of the court below over its own minutes or docket entries; and 2nd. As to the legal effect of a verdict of "guilty," supposing that to have been the only verdict in the case.

1st. There is no particular assignment of errors in this writ, and no such assignment has been made in this court. If there were any errors in fact, outside of and in making up the record of the court below, either in the process or through default of the clerk, the proper mode of correcting them was by a writ of error coram nobis, bringing the matter before the judge who tried the case. The cases of Bridendolph vs. Zellers, 3 Md. Rep., 325, and Hawkins vs. Bowie, 9 G. & J., 437, clearly show, that in this State a writ of error coram nobis lies to correct an error in fact in the same court where the record is. This remedy was open to the prisoner in this case, and he should have pursued it if he wished to avail himself of any such errors. We insist then, that in the examination of this case, this court must be confined to the record, and look only to those facts that appear upon the record, for it is for the correction of errors appearing upon the record that the writ of error [**39]  is allowed. That writ brings the record before this court. By that record duly and properly authenticated, this court must be strictly governed for its ascertainment of the facts of the case. It is a well settled principle, and one fully established by all the authorities, that he who impeaches the judgment of an inferior court is bound to show to a superior tribunal in what the error consists of which he complains, and that error must appear upon the record. It is a settled maxim, that nothing shall be averred against a record, nor shall any plea or proof be admitted to contradict it, otherwise there would be no end to disputes. Such being the settled law, we are to consider the question, what is to be taken as the record in this case? and what is a record in the sense in which it is to be here considered? A court of record is, where the acts and judicial proceedings are enrolled in parchment or on paper, for a perpetual memorial and testimony; which rolls are called the records of the court, and are of such high and super-eminent authority that their truth is not to be called in question. What the law requires to be enrolled constitutes and forms the record. (3 Bl. Com., 24. 2 Arkansas [**40]  Rep., 14, Lennox vs. Pike.) Upon this principle of law, the record consists, in this case, of the presentment, capias and return, the indictment, arraignment, plea and issue, empanneling of the jury, the finding by them, the motions by the prisoner's counsel, the judgment of the court upon the same, and the final judgment of the court upon the finding of the jury. No other papers filed in the cause are required by the law to be enrolled or recorded, and, therefore, form no part of the record. The affidavits filed in the case form no part of the record: they were but evidence introduced before the court, and upon which it was called upon to act. They are exclusively for the consideration of the court below. This court will not look into these affidavits, otherwise they would be called upon to consider the evidence and determine from the testimony, conflicting as it might be, not what the record is as duly certified by the court below, but what it should be from the evidence adduced, notwithstanding other testimony may have been introduced before the court. These affidavits are but evidence upon which the court below have the exclusive right to pass. They may discredit that testimony,  [**41]  or admit oral evidence to contradict or vary it; and when that court has once acted upon that testimony by overruling the motion, they have merely exercised a discretion vested exclusively in them, and their order only overruling the motion becomes a part of the record, and not the reasons upon which the court acted or the evidence laid before them. The authorities on this point are clear. In Lennox vs. Pike, 2 Arkansas Rep., 14, it was held, that a statement of testimony given in the case, written out and signed by the judge below and filed in the case by the clerk, is no part of the record. In Kirby vs. Wood, 16 Maine, 81, it was decided, that papers presented to a common law court, and acted on only as matter of evidence, are no part of the record, and that a writ of error lies only to correct such errors as are apparent upon the record. In Williams's Case, 5 Md. Rep., 82, this court has said, it cannot revise on writ of error, any point or question not appearing by the record to have been decided in the court below. In Godwin's Case, 5 Iredell, 401, a case very similar to this, it was held, that the appellate court could not look into affidavits in support of a motion to set aside [**42]  a verdict in a capital case, but could only decide upon the record presented to them. In Mellish vs. Richardson, 23 Eng. C. L. Rep., 276, Tindal, C. J., says, the proper office of a writ of error is, to remove the final judgment of the court below for the revision of the superior court, in order that such court from the premises contained in the record may affirm or reverse the judgment, and that these premises are the pleadings, the proper continuance of the suit and process, the finding of the jury upon an issue of fact, if any such has been joined, and the judgment of the inferior court, and that all these premises from which such judgment has been derived, the parties to the suit have the right ex debito justitiae to have upon the record, but the orders or rules for amendments of proceedings made by the court in the progress of the suit, and all other interlocutory rules do not fall within the description of any part of the record. This decision was adopted in the case of Newton vs. Boodle, 60 Eng. C. L. Rep., 534. In Coolidge vs. Ingle, 13, Mass., 50, it is said, that neither the report of the judge of the proceedings at the trial, nor the reasons given for the opinion of the [**43]  court, nor the papers and documents filed in the case, are a part of the record on a writ of error. In Storer vs. White, 7 Mass., 448, papers filed in the case and used as evidence, were held to be no part of the record, and that the court could not take notice of them on a writ of error. In Pierce vs. Adams, 8 Mass., 383, a copy of a note sent up with the record, was held not to be a part of the record on a writ of error. Vandruff vs. Craig, et al., 14 Illinois Rep., 394, decides that an affidavit forms no part of a record. In Reed vs. Marsh, 13 Pet., 153, the Supreme court decided, that the certificate of the clerk of a court, that a motion for a new trial was made, and reasons and certain papers filed on which the motion was founded, which are on the files of the court, is not a part of the record, nor do the reasons on the files of the court become a part of the record by such certificate; and in Williams vs. Norris, 12 Wheat., 117, the same court held, that the opinion of a judge may explain the views and motives of the court, but does not form a part of its judgment, and cannot constitute a part of the record. See, also, on this point, 1 Dev. & Batt., 506, State vs. Miller; 2 [**44]  Dev. & Battles, 163, State vs. Ephraim; and 1 Barr., 105, The Commonwealth vs. Church; in which latter case it was held, that an opinion of the court filed in a criminal cause by request, according to the provisions of the statute, is not part of the record for revision on writ of error. By the record in this case it appears, that the jury found the prisoner "guilty of murder," and upon being polled on motion of the prisoner's counsel declared and found him "guilty of murder in the first degree." This appearing by the record properly authenticated, is conclusive upon this court, and no evidence will be allowed to contradict it. A party will not be heard in relation to a matter in which he is contradicted by the record. 7 Missouri, 600, Weber vs. Schmeisser. In Clagett vs. Simes, 11 Foster, (N. H. Rep.,) 22, it was decided, that upon a writ of error nothing can be assigned for error which contradicts the record, and the alleged error there which was sought to be corrected, was, that the judgment against the plaintiff in error was entered up by the clerk without the authority or order of the court. The same thing was decided in 5 Conn., 541, Wetmore vs. Plant. 3 Dana., 454, Cook vs.  [**45]  Conway. 1 Pet., C. C. Rep., 155, Field vs. Gibbs, et al. 2 Bac. Abr., 219.

We think, therefore, we have demonstrated that the affidavits and opinion of the court below constitute no part of this record, and that this court has no power on this writ to go behind that record. If it has such power, it can take the very life from all the courts of the State.

2nd. The only other question to be considered is, whether the record in this case presents any such error as will justify this court in setting aside the judgment of the court below? The only question that can be raised under this head, is the alleged insufficiency of the verdict as recorded. We insist that the verdict is in conformity to the spirit and letter of the act of 1809, ch. 138, and meets and gratifies all its requirements. The verdict is, "Guilty of murder," and upon being polled, on motion of the prisoner's counsel, they declare and find him "Guilty of murder in the first degree." The act requires, that when a party is put upon his trial, and the jury shall find him guilty of murder, they shall ascertain, in their verdict, whether it be murder in the first or second degree. The jury are first to find him guilty [**46]  of murder, and having done so, they are then, in their verdict, to ascertain and announce whether it be murder in the first or second degree, for the information of the court, to guide them in awarding the proper punishment. No form is prescribed or laid down in which this is to be done. It is to be brought to the knowledge of the court by the jury, and is to be made a part of their verdict. This may be done upon the polling of the jury, or in any other way to be adopted by the court, so that it may be made a part of the verdict. Had not the prisoner, through his counsel, availed himself of the right to poll the jury, the court would have directed the jury to ascertain the degree. The court had the right to direct the jury, on the poll being demanded, to ascertain the degree, and whether directed or not, the degree being ascertained and announced on the poll, it rendered it unnecessary for the court so to move. The poll being demanded and allowed, the verdict was not complete until taken on the poll, and it required such taking of the verdict to render the record complete, and whatever was the verdict rendered on the polling, was the verdict of the jury, which the court was bound to [**47]  record against the prisoner. 8 Iredell, 339, State vs. John. 3 Johns., 255, Burn vs. Hoyt. 1 Wend., 91, People vs. Parkins. 6 McLean, 186, U. States vs. Potter. 2 Gilman, 342, Johnson vs. Howe, et al.

Of the other questions which arise incidentally in the case, the first is upon the motion to strike out the entry, "Jury polled, guilty of murder in the 1st degree;" and is based upon the allegation that it was not made till the morning succeeding the rendition of the verdict. The reasons in support of a motion, are no part of the record, and especially when they contradict the same, as in this case. No evidence was introduced in support of the facts set forth in this motion, and even admitting the alleged facts, they present no error. The daily minutes taken by the clerk, and sanctioned by the court, are only memoranda to assist in making up the records of the court. In legal contemplation, they are made under the eye of the court, and by its authority, and when not properly entered or extended, the error may be corrected. Lord Tenterden, C. J., in Rex vs. Carlisle, 22 Eng. C. L. Rep., 97, has said, it is impossible that a verdict should be recorded at the time it is given, the [**48]  record of it being necessarily an act subsequent to the delivery of the verdict by a jury; that no time is fixed by law for the recording of a verdict, the practice being, that a minute of the verdict should be entered forthwith by the officer of the court, and entered of record with the other proceedings at some subsequent time, when a formal record of the whole may be required. In Hall vs. The State, 3 Kelly, 23, the verdict of the jury was written on the indictment, but was not entered on the minutes of the court at the term when it was returned, and the court, at the succeeding term, ordered the verdict to be entered on the minutes of the court nunc pro tunc, and this was held by the Supreme Court of Georgia to be correct. In Mayo vs. Whitson, 2 Jones' Law Rep., 231, it was held, that a court of record has power to amend its own minutes of a former term, so as to set forth truly its own transactions, and that in such a case it was not bound by the ordinary rules of evidence, but may resort to any proof that is satisfactory to it. The judge there says, the court, in such a case, is entitled to draw evidence from any pure source. This would allow the judge below, in this case, to [**49]  reject all the affidavits, and resort to his own recollection of the facts, and order the entry to be made in accordance with the truth of the facts, as they occurred. The same case decides, also, that "every court of record has ample power, after a suit is determined, to amend its own records; that is, the journal or the memorial of its own proceedings, kept by the court or its clerk, by inserting what is omitted, or striking out what may have been erroneously inserted." The clerk is but the hand or the scribe of the court, and whatever he does, is the act of the court itself. The clerk's docket is the record of the court, until the record is fully extended, and every entry upon it is the statement of an act of the court, which is presumed to be made by its direction, and when so made, the same rules of presumed verity apply to such docket entries as to the record, when extended; 2 Cushing, 115, Read vs. Sutton; 1 Cranch. C. C. Rep., 431, Barnes vs. Lee; and in Weighorst's case, 7 Md. Rep., 450, this court has said, that the docket entries are, "in legal contemplation, made under the eye of the court, and by its authority, and when not properly entered or extended, the error may be [**50]  corrected."

The other incidental question is, assuming that the verdict was simply a verdict of "Guilty of murder," and that the entry of "Jury polled, guilty of murder in the first degree," was improperly entered, was such a general verdict of guilty sufficient to warrant the judgment pronounced in this case? We insist that it was. Our act of 1809, is a copy of the Pennsylvania statute, and it has been decided, in that State, that a general verdict of guilty upon an indictment for murder in the first degree, under their statute, is a sufficient ascertainment of the degree to gratify the act. White's case, 6 Binney, 183. And such would seem to be the necessary construction of the language of this court in Weighorst's case, 7 Md. Rep., 442, Manly's case, 7 Md. Rep., 135, and Flannigan's case, 6 Md. Rep., 167. The indictment here charges a willful and malicious killing, and the verdict of "Guilty," means that the party is guilty of the murder as charged.

For these reasons the State, by her counsel, insists upon an affirmance of this judgment. The objections made by the counsel for the prisoner, go not to the merits of the case, but are mere technicalities, which the ends of [**51]  public justice require should be discountenanced by this court. The affidavits, even if this court could look to them, are entitled to but little weight, for they are made by persons whose attention was necessarily, under the circumstances, attracted to other matters. It was at the close of an exciting and prolonged trial, at night, the court room being crowded with spectators, whose attention was directed to the prisoner, to witness the effect of the verdict upon him. Casual by-standers could not be expected, under such circumstances, to remember minutely what passed between the clerk and the jury, and, by examining their affidavits, the court will see that each differs from the other in his recollection of what then occurred.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*542]  LE GRAND, C. J., delivered the opinion of this court.
This case comes before us on a writ of error sued out by the plaintiff in error, to have reversed and set aside a judgment pronounced against him in the Criminal Court of Baltimore.
From the record transmitted to this court, it appears he was indicted for the murder of a person named Thomas H. Burnham; that [**52]  he was arraigned, and to the charge pleaded not guilty; that a jury was empanneled to try the case, and they being polled, he was, by their verdict, found "guilty of the felony and murder above charged and imposed upon him, and that the said felony and murder is murder in the first degree."
If this be a correct record of what actually took place, then there is clearly no error to be corrected by the judgment of this court. But it is denied there ever was rendered such a verdict by the jury sworn to try the case, and it is this allegation, on the part of the prisoner, we are now called upon to consider and decide upon.
We know nothing of the testimony adduced to the jury as to the guilt or innocence of the prisoner, nor have we any thing to do with it; that was a consideration exclusively for the court and jury that tried the case below. Our duty and authority are confined to the legal questions arising out of the record. If the record shows the accused was convicted in due form of law, the judgment of the criminal court must be affirmed, and the sentence carried into execution, unless the 

 [*543]  executive interpose. This being the status of the case, we proceed to [**53]  the examination of the questions presented in argument, and by the record.
Homicide at the common law is distinguishable into several kinds; into murder, manslaughter, excusable homicide, and justifiable homicide. By our acts of Assembly of 1809, ch. 138, to these distinctions of the common law is added another, namely, murder in the first and murder in the second degree, and it is to this latter sub-division the principle question for our decision owes its importance. The 3rd section of that act is in the following words:
"And whereas the several offenses which are included under the general denomination of murder, differ so greatly from each other in the degree of their atrociousness, that it is unjust to involve them in the same punishment; therefore be it enacted, that all murder which shall be perpetrated by means of poison, or by lying in wait, or by any kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempt to perpetrate, any arson, or to burn any barn, tobacco house, having therein any tobacco, grain, hay, horses, cattle or goods, wares and merchandise; rape, sodomy, mayhem, robbery or burglary,  [**54]  shall be deemed murder in the first degree; and all other kind of murder shall be deemed murder of the second degree; and the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict whether it be murder in the first or second degree; but if such person be convicted by confession, the court shall proceed, by examination of witnesses, to determine the degree of the crime, and to give sentence accordingly," &c.
It is apparent, from the plain and unambiguous words of the statute, that where a party is tried before a jury on the charge of murder, it is the duty of the jury, if they find such person guilty of the murder, also to "ascertain in their verdict whether it be murder in the first or second degree." This requirement, it was ingeniously urged on behalf of the State, could be fully gratified on an indictment like the one in the case before us, by a verdict of simply "guilty." This view, 

 [*544]  as appears from the opinion of the judge below, was addressed to him as it has been to us. We concur with him in the opinion that the finding of the jury of only "guilty," is insufficient. The [**55]  argument in its support is deduced mainly from the fact that the charge, as laid in the indictment, is the same as it would be at common law, where there are no degrees of murder, and, therefore, the response by the jury of "guilty," is a full answer, and covers murder in the first degree; and this is sought to be sustained by an obiter of Chief Justice Tighlman, in the case of White vs. The Commonwealth, reported in 6 Binney 183, and because our act of 1809 is borrowed from that of Pennsylvania of 1794.
The case in which the distinguished chief justice dropped the dictum relied upon, did not involve the question, nor call for his opinion on the subject; and were it what counsel suppose it to be, whatever may be our respect for his views on a legal proposition, (and it is certainly very great,) we would not feel ourselves bound to conform to it. Nor, indeed, had it been directly raised in the case, could we, with our understanding of the language of the statute, unite in such construction. But the fact is, we do not concur with the counsel for the State, in the interpretation placed by them on the language of Chief Justice Tighlman. His language is not susceptible [**56]  of such construction. It alluded to an indictment under the statute, and not at common law. In most of the States of this Union the act of Pennsylvania has been adopted in its very words; and we are not aware of any decision, in any of their courts of last resort, where it has been held not to be incumbent on the jury to find, distinctly and unequivocally, the degree of the murder. So far from it, there has been an unbroken uniformity of decision to the contrary.
We do not deem it essential to recapitulate the numerous cases in which the act has come under review. It is palpable to us that the true intent and purpose of the act, in this particular, were to impose upon the consciences of the jury the finding in their verdict (not therefrom to be inferred or conjectured) the degree of the crime; and when that part of the act is considered which refers to the case of the accused making, 

 [*545]  in open court, a confession of guilt, it seems to us next to impossible that, on reflection, there should be any doubt on the mind of any one as to the proper interpretation of it. In the case of the confession by the prisoner, it is the duty of the judge to examine witnesses, with the [**57]  view of determining the degree of the crime, the commission of which is confessed. Why this, if the view of the counsel of the State be tenable? Most certainly the accused's own confession of "guilty" ought to be equally as strong against him as the finding of the jury of "guilty." And yet it does not dispense with the examination of witnesses to fix the degree. To state the point, is, in our judgment, to resolve the question involved in it. We, however, refer to the opinion of Judge Bartley, in the case of Dick vs. The State of Ohio, reported in 3 Ohio 89, N. S., for a very clear and satisfactory determination of it.
Having, to our own satisfaction, settled the character of the finding which the act of Assembly requires in the case of conviction for murder, we proceed to notice some facts contained in the transcript of the clerk of the criminal court.
The verdict in the case, whatever it was, was rendered on the 4th of October 1858. On the rough minutes of the court appears the following entry: "Oct. 4, 1858, verdict, guilty of murder. Jury polled--Guilty of murder in the 1st degree." From affidavits filed in the case in the court below, it is obvious [**58]  the words "jury polled--guilty of murder in the first degree," were not placed on the minutes until the 5th of October, out of the presence of the prisoner and of the jury. Some of the bystanders, at the time of the rendition of the verdict, and the deputy clerk, who received it, make affidavit as to the words of the verdict, and the manner in which it was delivered and recorded.
The jury who tried the case also filed a certificate, stating their recollection of the words used, and their understanding of their meaning. To all this the judge certifies, in his opinion, his knowledge of what occurred. Without quoting the precise words used by the different persons who bear evidence in regard to the matter, we content ourselves by saying, that there is not a single affiant or witness who states, nor does the 

 [*546]  judge state, that each and all of the jury, when polled, found a verdict of guilty of murder in the first degree. It is clear that the foreman alone found such a verdict; all the rest simply responded "guilty," saying nothing of the degree of the murder. The object of a poll of the jury, is to call on each juror to answer for himself, and in his [**59]  own language. In the case now under consideration, if we can look to the evidence, such was not, nor does any one pretend it was, done. But it is said, we cannot look to the affidavits, because they are no part of the record, and that inasmuch as the extended or amended record is in due form, there cannot be any error of which this court can take notice, revise and correct.
Whatever doubt there may be in regard to the truth of the proposition, to the extent insisted upon, it is unquestionably correct to aver that jurors cannot be allowed to testify in relation to the motives upon which they joined in the verdict, and this is just what has been attempted here. (See 5 Bacon's Abridgement, 393, (N,) and the numerous authorities there collected, and also the opinion of Judge Archer, in the case of Bosley vs. The Chesapeake Insurance Co., 3 G. & J., 450.) If a jury, through mistake or partiality, deliver an improper verdict, the court may, before it is recorded, desire them to reconsider it. They cannot, however, be allowed to make alteration after the verdict is recorded. (Dearsby's Criminal Process, 68; 81 Law Lib.) And we here remark,  [**60]  that when the jury be asked if they have agreed on their verdict, and they respond that they have, and that their foreman shall say for them, and the foreman, speaking for the whole panel, find a proper verdict, and the same be recorded, the whole panel being called upon to hearken to it as the court hath recorded it, and no objection being made, either by any of the jury, or the counsel for the State or prisoner, then such proper verdict, as given through the foreman, is the verdict of the whole panel, and it is too late, after the record of it, under such circumstances, for any of them to alter or amend it; it is then too late to poll the panel.
It might be conceded, for the purposes of this appeal, that this court cannot take cognizance of the affidavits filed subsequently 

 [*547]  to the verdict, and yet there may be sufficient, independently and outside of them, in the record, to require it to arrest the judgment. And this is our opinion of it, which relieves us from the necessity of inquiring into our right to weigh the evidence of the witnesses. We have carefully examined all the authorities cited at the bar, as well as others, and we have been unable to find any [**61]  which precludes us from reversing the judgment of the court below, although there are many which deny to us the right to review its reasoning and mere opinions. Whatever assumes the solemnity of a judgment of a court of record, is part and parcel of the record, and examinable in the appellate tribunal on a writ of error. Not one of the cases cited on the part of the State, and so earnestly enforced by its counsel, questions, in any manner, this principle.
In all cases in which a judgment is to be pronounced in the progress of the case, such judgment, when rendered, becomes the act of the court, and is a matter of law, as well as were the premises on which it was rendered, matters of fact; and whilst the court of review cannot find the facts, yet when the facts are found by the court or the jury below, as the case may be, it is but its proper and legitimate province to see that the inferior court has pronounced correctly the law as applicable to the facts.
Now what was the matter on which the court below decided? It was alleged that the jury had not, in point of fact, found the verdict which the clerk had recorded, and whether they had, or had not,  [**62]  was the precise and only matter which the court was called upon, not argumentively, but judicially, to adjudge. And what did it adjudge? We throw out of view entirely all that was said by the witnesses and the clerk, and confine ourselves exclusively to the decision of the judge. It is in these words: "The court will finally proceed to consider the fact, whether the jury did, or did not, find the prisoner guilty of murder in the first degree, which (as Mr. Nelson says) settles the question. When the jury came into court, it was late in the evening, and Mr. Whitney, the prosecutor, was absent, on account of sudden indisposition, but the court supposed he was present to attend, as usual, to the rendition of 

 [*548]  the verdict, according to the usual manner. The clerk asked the jury if they had agreed upon their verdict, and who should say for them, to which they responded they had agreed, and their foreman should say for them. Whereupon the clerk told the prisoner, calling by name William G. Ford, to stand and hold up his right hand, and requested the jury to look upon him, and then asked the jury: 'How say you, gentlemen, is Wm. G. Ford, the prisoner at the bar, guilty [**63]  or not guilty?' To which the jury answered, 'Guilty,' and nothing more. Whereupon, and before any of the jury had left the bar, and whilst the prisoner was before them, Mr. Hack, one of the counsel for the prisoner, demanded that the jury should be polled. Whereupon the court directed Mr. Schley, the clerk, who was taking the verdict, to ask the jury, when he polled them, 'Whether they found the prisoner guilty of murder in the first degree, or murder in the second degree?' To which question, when it was put to the jury, the foreman answered for the jury, in the words, 'Guilty of murder in the first degree,' in an audible voice; and each of the remaining eleven jurors, when polled, responded, 'Guilty,' without specifying the degree of murder in words."
Thus, then, we see the judge below decides the facts to be, that at no time did all the jury find the prisoner "guilty of murder in the first degree." At first their foreman simply said, "guilty," for the whole panel; and when the latter was polled, so that each might answer for himself, eleven of them replied, severally, "guilty," without specifying the degree in words. Here, then, we have the fact plainly set forth, that [**64]  William G. Ford was not, by all the jury, found guilty of murder in the first degree; but, nevertheless, the verdict, as extended and amended by the clerk of the criminal court, says he was so found guilty. And we are asked to decide that, although no such verdict was given, the judgment is correct, and the sentence should be carried out, and that we cannot look to the misprision of the clerk. The clerk is but the hand of the court, its amanuensis. It is his duty, in contemplation of law, to record nothing but the proceedings of the court.

 [*549]  The 19th article of the Declaration of Rights of Maryland, among other things, declares, that every man hath a right to be informed of the accusation against him, "and to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty." And in 10 Bacon's Abridg. Title Verdict, 306, it is correctly said: "The verdict is the unanimous decision made by a jury and reported to the court, on the matters lawfully submitted to them in the course of the trial." Unanimity is indispensable to the sufficiency of the verdict, and this, we have seen, has not been in the case before us. It will [**65]  hardly be contended, that had the jury found the prisoner "not guilty," if the clerk had entered their verdict "guilty," instead of the true finding, that there is no mode of correcting such error. Wherein does this supposed case differ in principle from the case now before us? In nothing. The law says, that when a person shall be found guilty of the crime of murder, by a jury, the jury shall, in their verdict, find the degree; and this has not been done.
In the eye of the law, there has been no valid and sufficient verdict; and, as a consequence, there must be a new trial. This case is not like that of Cochrane vs. The State, 6 Md. 400, where there was a necessity to find a new indictment, because of the defect in the one on which the accused was arraigned and tried. In this case there is no defect in the indictment, and the party can be tried again on it, as in the case of The State vs. Sutton, 4 Gill 494. This was a mistrial, and a venire de novo must be awarded.
Judgment reversed and procedendo awarded. 

195 of 196 DOCUMENTS 

WILLIAM FISHER vs. HENRY RIEMAN, ALEX. RIEMAN and JOS. H. RIEMAN.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 Md. 497; 1859 Md. LEXIS 4 

January 13, 1859, Decided 

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

Assumpsit brought by the appellees against the appellant, to recover back money paid by the plaintiffs to the defendant, for a promissory note. The defendant was a public bill and note broker, and sold the note in question to the plaintiffs, without disclosing the name of his principal. The names of the maker and one of the endorsers on the note proved to be forged, but this fact was not known by the defendant at the time of the sale. The signature of the other endorser was genuine. The declaration contained the common money counts. Plea, non assumpsit.

The facts of the case, and the prayer of the plaintiffs, which was granted by the court below, are fully stated in the opinion of this court. The defendant offered three prayers, which were rejected, and they need not be stated, as no opinion was pronounced upon them by this court. The following opinion was delivered by the court below (LEE, J.) upon granting the plaintiffs' prayer:

"This is an action to recover from the defendant, William Fisher, a sum of money, which the plaintiffs paid for a promissory note sold to them by the defendant, and they seek to recover it back,  [**2]  on the ground that the note, when sold, was not genuine, the name of the drawer and one of the endorsers being forged; and, upon the trial, the plaintiffs to support the issue on their part, produced the promissory note, purporting to have been made by Edward Dunn in favor of Jacob F. Kridler, and endorsed by said Kridler and Henry Shirk, for $ 861, payable eleven months after date, and dated Baltimore, February 1st, 1854. They further proved, by a competent witness, that they purchased said note from the defendant Fisher, who was a public bill and note broker in the city of Baltimore, (and who dealt in having notes discounted or sold,) for the sum of $ 651.08; and also proved that the defendant was generally known in the city as a public bill and note broker, largely engaged in the selling of bills, notes and stocks, and that the plaintiffs had frequently bought the promissory notes of other persons from said defendant before the purchase by the plaintiffs of the note in this case; that the defendant was in the habit of bringing to the counting-room of the plaintiffs a large number of notes at a time, for the purpose of selling them to the plaintiffs before the sale of the note in [**3]  question. And the plaintiffs further proved by Edward Dunn and Henry Shirk, that their names written upon the said note, as maker and endorser, were not in their handwriting, but were forged; but that the name of Jacob F. Kridler, written in two places on the back of said note, was his genuine handwriting, and that Kridler was a man in good credit in the city of Baltimore, down to the 27th of November, 1854, when he absconded, having committed other forgeries; and that said Kridler left some property behind him, upon which there are mechanics' liens.

"The defendant, on his part, gave in evidence, by a competent witness, (his clerk,) that at the time of the sale by the defendant to the plaintiffs, of the note in question, Kridler was in the habit, before this time, of putting into the hands of Fisher, as a bill and note broker, for the purpose of sale on account of said Kridler, various notes held by Kridler and endorsed by him, but the particular notes were not named or recollected by the witness; and also proved that the defendant is a public bill and note broker in the city, for all persons who may employ him for that purpose, handing over to such persons the proceeds of sale [**4]  of such notes as he sells, less the commissions charged for such sales, and that the proceeds of the sale of the note now in question, were paid by the defendant to his principal who employed him to sell it, before the alleged forgery of the names of Dunn and Shirk, upon the said note was suspected, either by the plaintiffs or defendant.

"Upon these facts, the plaintiffs by their counsel, asked an instruction from the court, that they were entitled to recover in this suit, and counter-instructions were prayed by the defendant.

"I am aware that the question is an interesting one, and for the first time raised in this State, as to the liability of a public note or bill broker for the genuineness of a note or bill sold by him, he at the time being ignorant of the fact; in other words, both the plaintiffs and the defendant in this case are shown to have been innocent parties, and ignorant of the forgeries on the note in question at the time the sale of it was made. Who shall, in such a case as this, bear the loss?

"It has been contended at the bar, that the defendant, a public bill broker, should be regarded as the principal, or that in selling the note, even as agent, there [**5]  was, on his part, an implied warranty to the vendees, (the plaintiffs,) of the note being what it purported to be, a valid and genuine note; that the sufficiency, or solvency, or ability of the parties to the note, was the risk which the vendees encountered, but in the event of the note being false and forged the vendor should bear the loss.

"On the other hand, it is insisted by the defendant that, as the plaintiffs in this case had dealt with him as a broker, and knew the business which he was engaged in, which was the disposing by sale of notes on account of other parties, they should have known or presumed he was an agent, and acted with him as such in the sale of notes.

"English and American authorities have been cited, which, I think, apart from a sound rule of public policy, determine the liability of the proper party here; and, without referring particularly to all the authorities, I will name the last leading case in England, of Gurney, et al., vs. Womersley, et al., decided as late as November 1854, by the court of Queen's Bench, in which Lord Campbell decides, that the vendor of a bill of exchange, though no party to the bill, is responsible for its genuineness;  [**6]  and if it turns out that the name of one of the parties to it is forged he is liable to the vendees.

"The defendants in that case were bill brokers, who received the bill to be discounted, and took it to the plaintiffs, who were money lenders, with whom the defendants, as bill brokers, had previously had similar dealings. The defendants did not disclose their principal, and were regarded as principals; and it was held by the court, all the judges concurring, that they were liable, and the plaintiffs should recover back the amount paid by them for the forged bill. Lord Campbell, at page 259 of vol. 28, of Eng. Law and Eq. Rep., says:

"'Here that which purported to be the acceptance of one of the parties to the bill, and upon which the plaintiffs gave credit and relied, was a forgery, and of no value whatever; in fact, the instrument altogether became of no value, for Anderson was a bankrupt. There was, therefore, clearly a failure of consideration entitling the plaintiffs to recover.'

"The case at bar is like the case decided by Lord Campbell, and the same rule should apply, in my opinion, to its determination.

"No decision in England, before or since, is in conflict [**7]  with that decision; and I will now refer to one or two American cases, read at the bar, from which it will be seen that, except the case of Baxter vs. Duren, in 29 Maine Reports, (chiefly relied on by the defendant here,) no authority can be found to impair or conflict with the judgment of Lord Campbell. In the case of the Canal Bank vs. The Bank of Albany, 1 Hill Sup. Court Report of New York, page 290, Judge Cowan in substance affirms the doctrine established by Lord Campbell, and says: 'No doubt the parties are equally innocent in a moral point of view. It was the duty, or more properly a measure of prudence, in each to have inquired into the genuineness of the note. They (the defendants) have obtained the plaintiffs' money without consideration, and the plaintiffs have a right to recover, (though there was ignorance on both sides of any forgery.') That was a case of forged bank notes passed by the defendants to the plaintiffs. Other decisions in Massachusetts and New York sustain the same view. But the case of Baxter vs. Duren, 29 Maine, 440, is invoked to establish a different rule from that laid down by Lord Campbell, and confirmed by many American authors. (See cases referred [**8]  to in Story on Bills.) With entire respect for the court, it will be found, on examining the authorities upon which it rests its decision in Baxter vs. Duren, at page 441, that they do not sustain the doctrine of the learned Judge, viz., 'that where no debt is due or created at the time, and the paper is sold as other goods and effects are, the purchaser cannot recover from the seller the purchase money. There is in such case no implied warranty of the genuineness of the paper; the law respecting the sale of goods is applicable; the only implied warranty is, that the seller owns or is lawfully entitled to dispose of the paper or goods.' If this be the true rule, which I respectfully submit cannot be sustained by authority or on principles of public policy, then in no event could a bill broker be liable, either as principal or agent, if no implied warranty attaches, unless where the note is paid away for a previous debt or in payment of goods, &c.

"A public broker, like the defendant in this case, must be regarded as the principal in all his business transactions, unless he discloses his agency at the time. How is he otherwise an agent, and whose agent is he? To illustrate the [**9]  force and justice of this doctrine, as sanctioned by the court of Queen's Bench and by Justice Story, suppose a bill broker sells a coupon bond, for instance, which is transferred by delivery only, without an endorsement or formal transfer, and it turns out to be a forgery, can it be maintained that he is not responsible for the genuineness of the bonds; and can the fact of his being known to be a general agent relieve him, if at the time of the sale he did not disclose the principal or party for whom he was agent in this particular transaction? The answer is conclusive, and his liability certain. To relieve himself, therefore, in a case like this, from responsibility, he should have disclosed his principal. This can be the only safe rule, which, it will be found, is sanctioned by Judge Story, in his learned works on promissory notes and agency. A contrary doctrine, carried to the extent of the case in Baxter vs. Duren, in 29 Maine Reports, would open the door to fraud, gross injustice, and commercial inconvenience.

"Judge Story, in his admirable treatise on Promissory Notes and Bills of Exchange, at page 132, forcibly states the doctrine as it now stands supported by the highest [**10]  authority in England and this country, and by principles of sound reason and public policy. He says:

"'Unless it be expressly otherwise agreed, the holder transferring a note is not exempt from all obligations and responsibilities, but he incurs some, although they are of a limited nature.'

"In the first place, he warrants by implication (unless otherwise agreed) that he is a lawful holder, and has a just and valid title to the instrument, and a right to transfer it by delivery, for this is implied as an obligation of good faith. In the next place, he warrants in like manner that the instrument is genuine, and not forged or fictitious. (It will be found stated, not as a part of the learned author's text but inserted by the editor in brackets, that the case of Baxter vs. Duren, in Maine Reports, has decided otherwise. But Judge Story does not adopt or sanction the decision; on the contrary, refers in the notes to his work to authorities directly in conflict with it.)

"The case of Baxter vs. Duren, 29 Maine Rep., was decided after Judge Story's death; and the reference to this case at sec. 118 of Story on Promissory Notes, (New Edition) is marked by brackets, and Mr. Charles [**11]  Sumner, the Editor of this edition in 1851, says, 'the present edition contains the authorities furnished by cases decided since the publication of the 2nd edition--the new matter now introduced, (except merely the names of additional cases,) is marked by brackets.'

"And to the advertisement of the 2nd edition, Mr. W. W. Story (the son of the eminent Judge) states, in 1847, 'that the present edition is a re-print of the former edition, except that the manuscript notes left by the author--and the late cases arising in the law applicable to promissory notes--have been added by the Editor.'

"The cases of Fenn vs. Harrison, 3 Term Rep., 757, and the Bank of England vs. Newman, 1 Ld. Ray., 442, (referred to in Chitty on Bills, 245,) as also the American case of Ellis vs. Wild, 6 Mass. Rep., 321, relied on by the Judge in 29 Maine Rep., will be found to depend on a very different state of facts from the case at bar, and can not sustain the doctrine, that the vendor is not liable to the vendee, upon the sale of a forged or fictitious note or bill. In none of those cases were the notes invalid (or not genuine, except in the case in 6 Mass. Reports, which, however, turned on the plaintiffs [**12]  having agreed to buy the notes in question, by giving a quantity of merchandize (rum) for them.

"Hard as in the present case the rule may operate, yet it is the only one which can determine with safety the duties and obligations of parties to a transaction like this. If the plaintiffs and defendant acted, as is conceded, in good faith and in ignorance of the forgery, then the loss must fall on the vendor. He is nearest the inception of the transaction, and, if acting as principal, must be clearly liable, if he disposes or sells an invalid bill or forged note; or, if acting as agent, he must be presumed to know the party who employed him, and the circumstances of the case; at all events, as principal or agent, he comes under an implied guaranty or warranty, to the vendee, of the genuineness of the paper sold, unless he discloses at the time his principal, if he acts as an agent.

"Entertaining these views, I am of opinion that the defendant is liable in this action, and that a verdict ought to be entered for the plaintiffs and therefore grant the plaintiffs' prayer."

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

DISPOSITION:
Judgment reversed,  [**13]  and no procedendo ordered.  

HEADNOTES:

Where a promissory note is bona fide sold by a public bill and note broker, by delivery merely, without endorsement, or any express warranty or representation, the broker acting as agent, but not disclosing the name of his principal, and no debt being due the purchaser, or created at the time, the latter cannot recover from the broker the money paid for the note, though the names of the maker and one of the endorsers thereon proved to be forgeries.

In such case, there is no implied warranty of the genuineness of the note, but the law respecting the sale of goods is applicable. The only implied warranty is, that the broker owns, or is lawfully entitled to dispose of, the paper.  

COUNSEL:
Wm. A. Fisher and St. G. W. Teackle for the appellant:

1st. The note in this case was sold by the appellant, a public bill and note broker, without solicitation. The appellees purchased it upon the strength of the names appearing upon its face, and not upon the credit of the seller. Each party was ignorant of the forgery, and the loss must fall on the holder; for, as we insist, there was no contract, express or implied, by which the seller could be held liable to the purchasers--there was no privity between them. A bill and note broker is not bound by the ordinary rule of agency in the sale of property, where the actual owner is concealed. As a general rule, an agent failing to disclose the name of his principal, is personally responsible on a contract made by him, (Story on Agency, sec. 267,) but a broker is a mere negotiator between other parties, and never acts in his own name, but in the names of those who employ him--he is strictly a middle-man, or intermediate negotiator between the parties, (Story on Agency, sec. 28,) and when a party deals with such broker, he knows that he is dealing with one who, from the nature of his business, is acting [**14]  for those who employ him. In the authorities cited by the appellee, the court will find that no question of agency was presented. There is now no such thing as agency in the bill brokers' business in London--they are there capitalists, who deal wholly on their own credit, and sales by them are contracts between the purchasers and the brokers as principals. 82 Eng. C. L. Rep., 135, Gurney vs. Womersley, shows this, and also establishes the further proposition, that if the brokers had sold as agents, they would not have been held liable. In that case the seller received the proceeds of sale, while here the purchasers dealt with the broker as an agent selling on agency, whose principal received the proceeds. In Jones vs. Ryde, 5 Taunt., 488, the defendants discounted the bill with the brokers, who acted for themselves as principals, and therefore a loan or debt was created at the time, which is another distinction to be observed in the cases. Where the bill or note is passed in payment of an antecedent or preexisting debt, or where it is discounted, or, in other words, where a loan or debt is created at the time, and by the transaction itself, the broker would be responsible. But here [**15]  there was no express warranty or representation, and no debt existing, in payment of which the note was received, nor was any loan made or debt created at the time. It was a simple sale, and not a discount, and the note was passed by delivery merely, without endorsement. The case of Baxter vs. Duren, 29 Maine Rep., 434, reviews all the cases, and lays down the rule, showing that in the sale of a bill or note by a public bill and note broker, where he acts as agent, no warranty of the genuineness of the paper is implied, and that such warranty is only implied where the note has been delivered in payment of a pre-existing debt, or where a loan or debt is created at the time. No case can be found where a broker, selling a note bona fide and paying the proceeds over to his principal, has been held answerable for a failure of consideration for forgery or otherwise. In such a case, the law applicable to the sale of goods applies. Story on Prom. Notes, sec. 118, (New Ed.) Chitty on Bills, 246. 6 Mass., 321, Ellis vs. Wild. 3 Burr., 1354, Price vs. Neal. 3 Term Rep., 759, Fenn vs. Harrison. Ryan & Moody, 49, Fuller vs. Smith. Chitty on Cont., 622. 2 Caines' Cases, 48, Sexias vs. Wood. 1 Wend.  [**16]  , 185, Welch vs. Carter. 2 Espinsse, 572.

2nd. But if the above position should be decided adversely to the appellant, still the judgment must be reversed upon his second and third prayers, because there was not a total failure of consideration. The action is for money had and received, and to recover under it, there must be a total failure of consideration. The case of Gurney vs. Womersley, already cited, fully establishes this position. In that case the note was purchased solely on the faith of the endorser, whose name was forged, and hence there was a total failure of consideration, whilst in this it does not appear upon the strength of which name the purchasers bought, and the name of Kridler was genuine, and he was in excellent credit until long after this transaction. There could not have been, therefore, in this case, a total failure of consideration. On this point see, also, Brown on Actions at Law, 529, in 45 Law Lib. 5 Humph., 496. 24 Eng. Law & Eq. Rep., 156, Gompertz vs. Bartlett.

Geo. W. Dobbin for the appellees:

The appellant, though acting as a bill broker, was liable as principal to the appellees, not having disclosed, at the time of the sale, the fact [**17]  of his agency, and the name of his principal, and is bound to refund the money paid him by the appellees for the note in question, because there was an implied warranty that the note was genuine, and also because there was a failure of consideration. It is a general principle of law, that money paid upon a consideration which has wholly failed, may be recovered back in an action for money had and received. This principle is not denied, and the effort on the part of the appellant, is to except this case from the general rule. The facts in the case show that the note was discounted as a bankable transaction, and that the names of the drawer and one of the endorsers thereon, were forgeries. This is such a failure of consideration as warranted the instruction given by the court below. If the article sold be not what it professes to be, the vendor is answerable over. Here the thing sold professed to be a promissory note, when, in fact, it never was such, because the name of the drawer was forged, as well as that of one of the endorsers. The note, in fact, never had a drawer, and, therefore, never was a promissory note. It was taken as a mere discount, and was discounted upon the strength [**18]  of the written security on its face--the drawer and endorsers. This was what it was represented to be. If either name was forged, it was not what it purported, and was represented to be, and falls within the case of Gurney vs. Womersley, which decides that where a party's name is genuine, there is no implied warranty as to his solvency, but that there is such warranty that the name is genuine. All the authorities show that if the article sold be not what it purports to be, the warranty attaches. But it is said Fisher was a bill broker, and is not answerable as ordinary agents are. He is not exempt by law from any ordinary liability. His is not a branch of business more favored than any other. But, in fact, he does not appear here as a bill broker, but as a factor, and if he did not discover his principal, he is bound himself. Again, it is said there was but a partial failure of consideration. But Kridler became insolvent, his forgeries had been discovered, and he had run away before the maturity of the note, and left no redress against him; there was, in fact, a total failure of consideration. The following authorities fully sustain the positions here assumed. 5 Taunt., 488, Jones [**19]  vs. Ryde. Ibid., 495, Bruce vs. Bruce. 1 Carr. & Payne, 197, Fuller vs. Smith. 24 Eng. Law & Eq. Rep., 156, Gompertz vs. Bartlett. 82 Eng. C. L. Rep., 132, Gurney vs. Womersley. Story on Agency, sec. 267. 1 Parsons on Cont., 218. 89 Eng. C. L. Rep., 53, Hall vs. Conder.  

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

OPINIONBY:
ECCLESTON 

OPINION:

 [*507]  ECCLESTON, J., delivered the opinion of this court.
This is an action of assumpsit, in which the nar contains the four common money counts only. The plea is non assumpsit.
At the trial, the plaintiffs gave in evidence a promissory note with the protest thereof attached. The following is a copy of the note:
"$ 681.   Baltimore, Feb'y 1st, 1854.
Eleven months after date, I promise to pay to the order of 

 [*508]  J. F. Kridler six hundred and eighty-one 00/100 dollars, value received.
EDWD. DUNN."
On said note the following names appear as endorsers:
"JACOB F. KRIDLER,
HENRY SHIRK,
JACOB F. KRIDLER."
Black, a witness for the plaintiffs, testified that they purchased said note from the defendant, who was a public bill and note broker in the city of Baltimore, for the sum of six hundred [**20]  and fifty-one dollars and eight cents. Upon cross-examination, this witness stated that the defendant was generally known in the city of Baltimore as a public bill and note broker, largely engaged in the business of selling bills and notes, and that the plaintiffs had frequently bought the promissory notes of other persons from said defendant, before the purchase by the plaintiffs of the note offered in evidence. That the defendant was in the habit of bringing to the counting-room of the plaintiffs a large number of notes at a time, for the purpose of selling them, or some of them, to the plaintiffs, before the sale to them of the note in question.
It was proved by the plaintiffs that the name of Dunn, as maker, and that of Shirk, as endorser of the note, were forged. But the plaintiffs' witnesses, who proved this, testified that each of the two signatures of Jacob F. Kridler upon the note was the genuine signature of said Kridler; and that he was in excellent credit in the city of Baltimore down to the 27th day of November 1854, when he ran away from Baltimore, having committed other forgeries; and that he left some property behind him in the city on which there were "mechanics'  [**21]  liens."
It was admitted, that before the suit was brought, the plaintiffs offered to return the said note to the defendant, and he refused to take it.
The defendant's witness, Patterson, testified that he was then in the employment of the defendant, and was so before and at the time of the sale of the note by the defendant to the plaintiffs; that Jacob F. Kridler was in the habit, before said sale, of putting into the hands of the defendant, as a bill and note broker, for the purpose of sale on account of said Kridler, 

 [*509]  various notes held by him, and with his name on them, but that the witness could not recollect particularly the note in question as one amongst those so put into defendant's hands; that the defendant is a public bill and note broker in the city of Baltimore, for all persons who may employ him for that purpose, handing over to such persons the proceeds of sale of such notes as are so sold, less the usual commission charged upon such sales; and that the proceeds of sale of the note given in evidence in this case, were paid by the defendant to his principal, who employed him to sell it, less the usual commission aforesaid, before the alleged forgery of the [**22]  names of Dunn and Shirk upon said note was suspected, either by the plaintiffs or the defendant.
The plaintiffs then prayed the court to instruct the jury, "that if they find from the evidence that the defendant sold to plaintiffs the paper given in evidence by the plaintiffs, purporting to be the promissory note of Edward Dunn, in favor of, and endorsed by Jacob F. Kridler, and also purporting to be endorsed by Henry Shirk, and if they further find that the names of Edward Dunn and Henry Shirk, as drawer and endorser of said note, were forgeries, that then the plaintiffs are entitled to recover such sum as the jury may find was paid by them to the defendant for said paper, notwithstanding the jury may find that the defendant acted as agent in said sale, unless they also find that the defendant, at the time of such sale, disclosed the name of the person or persons for whom he acted as agent in such transaction."
The defendant submitted three prayers.
The court granted that of the plaintiffs, but rejected all those of the defendant; to which ruling of the court the defendant excepted; and by this appeal he seeks to have the judgment below reversed.
In Story on Prom. Notes, sec.  [**23]   118, (New Ed.,) when speaking with reference to the responsibility of a party who transfers a note by delivery merely, it is said, he warrants the instrument to be genuine, and not forged or fictitious, "unless where the note is sold as other goods and effects, by delivery merely, without indorsement, in which case it has been decided 

 [*510]  that the law respecting the sale of goods is applicable, and that there is no implied warranty." See, also, the cases cited in note 1 to this section.
In Chitty on Bills, ch. 6, page 246, he states the law to be, that the assignee of a bill has, in general, no right of action whatever against the assignor, in case the bill turns out to be of no value, "when a transfer by mere delivery, without indorsement, is made by way of sale of the bill or note, as sometimes occurs, or exchange of it for other bills."
Of course neither of these authors has reference to any case in which the assignor has been guilty of any fraud in the transaction.
In Baxter vs. Duren, 29 Me. 434, the plaintiff instituted an action of assumpsit, relying upon a supposed warranty of the genuineness of the signatures of [**24]  two endorsers upon a promissory note.
The signature of C. & J. S. Bedlow, as makers of the note, payable to J. P. Wheeler, or order, was genuine. The names of J. P. Wheeler and William Deming, as endorsers, were forged.
The defendant handed the note to Wood, a broker, for discount or sale, without endorsing it. The note was sold to the plaintiff by the broker at a discount, in which transaction he acted in his ordinary course of business. The plaintiff, the defendant, and the broker, were all entirely ignorant that the names of the endorsers were forged. Before the note became due, the makers failed. The broker knew that the defendant was acting as agent of the makers. There was no proof that the broker informed the plaintiff that he was acting for the defendant, or that the defendant was acting for the makers.
One of the questions involved in the case was, whether Wood, the broker, who was examined as a witness by the plaintiff, and objected to by the defendant, was not incompetent, on the ground of interest? His interest being supposed to consist in a liability on his part to refund the money to the plaintiff; and if, by his testimony, he could enable the plaintiff to recover [**25]  the amount from the defendant, as the principal for 

 [*511]  whom the witness had acted as agent, he, the agent, would be relieved from liability.
The court thought the plaintiff might be presumed to have known, from the nature of the broker's business, that he was acting as an agent of some person unknown; and that, therefore, the broker was to be regarded as one dealing with the plaintiff as an agent, without disclosing his principal. And that the defendant was in a like position, dealing with the plaintiff by an agent, and yet dealing with him as an agent, without disclosing his principal.
After speaking in relation to the rule of law applicable to an agent under such circumstances, the court say: "It becomes, therefore, necessary to inquire whether Wood, by making sale of the note by delivery merely, without indorsement, and without making, as of his own knowledge, any representations respecting it, and without disclosing his principal, became liable to refund the money which he obtained by the sale of it."
It is then said: "When an innocent holder of negotiable paper parts with it by delivery, without indorsing it, in payment of a debt due, or then created, as for example,  [**26]  in payment for goods then purchased, or by way of discount for money then loaned by a bank, banker, or individual, and the paper proves to have been forged, the debt or loan, not being paid by it, may be recovered. In such case there is a warranty implied by law, that the paper is genuine, as there is that coin or bank notes, used for like purposes, are genuine. Jones vs. Ryde, 5 Taunt. 488. Fuller vs. Smith, 1 C. & P. 197. Camidge vs. Allenby, 6 B. & C. 373, per Littledale, J. Coolidge vs. Brigham, 1 Met. 547.
"When no debt is due or created at the time, and the paper is sold as other goods and effects are, the purchaser cannot recover from the seller the purchase money. There is in such case no implied warranty of the genuineness of the paper. The law respecting the sale of goods is applicable. The only implied warranty is, that the seller owns or is lawfully entitled to dispose of the paper or goods. Bank of England vs. Newman, 1 Ld. Raym. 442. Fenn vs. Harrison, 3 Term Rep. 757. 

 [*512]  Fydell vs. Clark, 1 Esp. Rep. 447. Emly vs. Lye, 15 [**27]  East., 6. Ex-parte Shuttleworth, 3 Ves. 368. Ex-parte Blackburne, 10 Ves. 204. Ellis vs. Wild, 6 Mass. 321."
It was held, that Wood was not liable to refund the amount received for the note, and was, therefore, a competent witness.
Upon the application of the same principle which prevented Wood from being liable, the court decided that the defendant was not liable, without proof of an express warranty, because "he had a right to dispose of the note as a piece of property, deriving his authority from the makers, who were liable."
We have been induced to examine that case with much care, because we think it was correctly decided, and is, in most respects, very similar to the one before us.
There, in deciding against the plaintiff's right to recover, much stress is laid upon the facts, that the transaction was a sale, when no debt was due to the plaintiff, or created at the time; and the note was parted with by mere delivery, without indorsement, or any express warranty.
These important facts existing, the defendant was held not to be responsible for the return of the money paid for the note, although the names [**28]  of the indorsers were forged, (this fact not being known to the plaintiff, defendant, or broker,) and notwithstanding the makers failed before the note became due.
The court express the opinion, that the cases which had been decided on this subject, were rather apparently in conflict than really so, and that this apparent conflict had arisen from a failure to notice the important difference between a case where an innocent holder of negotiable paper parts with it by delivery, without indorsing it, in payment of a debt due, or then created, and a case where the paper is so parted with, by a sale, when no debt is due, or created at the time.
The evidence before us shows clearly that the name of Dunn as maker, and Shirk's name as indorser, were forged; but that the plaintiffs and the defendant knew nothing of this until after the sale, and the money had been paid over by the defendant to Kridler, less the usual commissions. Kridler is the payee in the note, and his two signatures on the back of it, are in his handwriting. The plaintiffs' own witness proves that the 

 [*513]  note was purchased by the plaintiffs from the defendant, who was a public bill and note broker, [**29]  and generally known and largely engaged as such; the plaintiff having frequently bought other notes from the defendant, previously to the purchase of the note in question.
The note is dated February 1st, 1854, payable eleven months after date.
It is in proof that Kridler was in excellent credit down to the 27th of November 1854. That he left some property behind him, on which there were mechanics' liens.
In addition to proof of a sale by the plaintiffs' witness, the defendant's also speaks of the transaction as a sale. And the prayer of the plaintiffs asked the court to instruct the jury, "that if they find from the evidence that the defendant sold the paper given in evidence by the plaintiffs," &c.
There was no endorsement on the note by the defendant, no evidence of any express warranty given, or representation made by him, amounting to a warranty, that the forged signatures were genuine; nor was there any proof of a previously existing debt, or of one created at the time by a loan. And considering this to be a sale, as other goods and effects are sold, we think that, according to the principles announced in Baxter vs. Duren, the plaintiffs are not entitled to [**30]  recover, and that the court were wrong in granting the prayer of the plaintiffs.
We have carefully examined the cases relied upon by the appellees' counsel, and, in our opinion, there are features in each which distinguish them, materially, from the case before us.
This judgment will be reversed, without ordering a procedendo, and therefore we need not decide whether the defendant's prayers were properly refused or not.
Judgment reversed, and no procedendo ordered. 

196 of 196 DOCUMENTS 

JAMES HOOPER vs. THE MAYOR AND CITY COUNCIL OF BALTIMORE.  

[NO NUMBER IN ORIGINAL] 

COURT OF APPEALS OF MARYLAND 

12 Md. 464; 1859 Md. LEXIS 1 

January 6, 1859, Decided 

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

This is an appeal from a pro-forma judgment of the court below (Lee, J.) The question presented by the statement of facts is, whether a ship duly registered in and sailing out of the port of Baltimore, owned by a bona fide and actual resident of Baltimore county, having his place of business, as a merchant, in Baltimore city, is liable to city taxation? 

DISPOSITION:
Judgment reversed.  

HEADNOTES:

A ship registered at the custom-house in, and sailing out of the port of Baltimore, owned by a bona fide and actual resident of Baltimore county, having his place of business, as a merchant, in the city, is not liable to pay taxes to the city for municipal purposes.

A vessel thus situated is not, within the meaning of the tax law of 1852, ch. 337, "permanently located elsewhere within the State" than at the domicil of the owner, but is subject to the general rule of the common law, that personal property has no locality other than that of the domicil of the owner.

By the laws of congress, the registration district of which Baltimore is the port of entry, is not confined to the limits of Baltimore city, and the fact that a vessel is registered at the custom-house in Baltimore, gives to the city no more right to tax her than to any other part of the district.

Statutes are to be construed in reference to the principles of the common law; it is not to be presumed, that the legislature intended to make any innovation upon the common law, further than the case absolutely requires, but the law rather infers, that the act did not intend to make any alteration other than what is specified, and besides what has been plainly pronounced. 

COUNSEL:
S. T. Wallis and A. S. Ridgely for the appellant:

The act of 1812, ch. 191, exempted licensed vessels from all taxes whatsoever, and by the 60th section of the act of 1841, ch. 23, vessels paying licenses to the general government were exempted from taxation for county or city purposes, but this exemption was repealed by the act of 1845, ch. 354, sec. 2, so far as respects taxation for city purposes. By the act of 1852, ch. 337, sec. 9, which, in this respect, is similar to the previous law of 1841, ch. 23, sec. 9, it is provided, that "all property owned by residents of this State, and not permanently located elsewhere within the State, shall be assessed to the owner in the county or city where he or she may reside," and the question in this case is,  [**2]  whether this vessel comes within the exception of property "permanently located elsewhere within the State?" It is admitted, that the owner is a bona fide and actual resident of Baltimore county, and the general rule of law that the situs of the owner's domicil is the situs of all personal property belonging to him, undoubtedly applies unless modified or repealed by the act in question. In Story's Conflict of Laws, secs. 379 to 382, the reason, policy and universality of this general doctrine is clearly stated, and has been fully recognised by this court in Newcomer vs. Orem, 2 Md. Rep., 305, and in Chauvenet vs. The Commissioners of Anne Arundel county, 3 Md. Rep., 264, which was a case in which the rule was applied in reference to taxation. In the cases of Harvard College vs. Gore, 5 Pick., 377; Salem Iron Factory vs. Inhabitants of Danvers, 10 Mass., 520; Gray vs. Kettell, et al., 12 Mass., 162, and Amesbury Woollen & Cotton Manf. Co., vs. Inhabitants of Amesbury, 17 Mass., 462; it was held, that, as a general rule, the owner is taxable for personal property in the town in which he dwells, no matter whether such property be found in that town or any other, and that this general [**3]  proposition is proved by the exception introduced into the tax laws of that State, which expressly make the owners of goods and merchandise, &c., who hire shops and stores, &c., and carry on their business in other towns than those in which they dwell, liable to be taxed for such goods in the towns where their business is negotiated. The language of their acts is, "that for such goods, &c., or other stock in trade including stock employed in manufactories, ships or vessels as are sold, used or improved in any towns, &c., other than where the owners thereof dwell, such owners shall be respectively taxed therefor in such towns, &c., and not where they dwell or have their home." The court will perceive that the language of this exception is clear and express, and entirely different from that in our act of 1852. In the cases of The Draco, 2 Sumner, 189, and Leland, et al., vs. The Ship Medora, 2 Wood. & Minot, 115, it was held, that the rule applies to the general transfer of property, according to the laws of the State, without regard to acts of Congress.

The question then recurs, what is meant by the words "permanently located elsewhere within the State?" It is supposed on the other [**4]  side, that the fact, that the vessel was registered at the custom-house in Baltimore city, gives it a permanent location there. But this can have no such effect, for according to the existing laws of Congress, it could be registered no where else, so long as the owner resides where he now does, (Acts of Congress of 1792, ch. 1, sec. 3; 1798 ch. 8, sec. 2, and 1850, ch. 27, sec. 1,) and by the act of 1799, ch. 22, sec. 10, the registration district of which Baltimore is the sole port of entry, is not confined to the limits of Baltimore city, but includes "Patapsco River, Turkey Point, Spes Utiae Island, and all the waters and shores on the west side of Chesapeake Bay, from the mouth of Magetty river, which shall not be included in the district of Havre-de-Grace." According to these laws the registry must be in Baltimore city, though the owner resides in Baltimore county, or any part of Anne Arundel, Howard or Harford counties embraced within the limits of the registration district. The registry cannot, therefore, be said to give the vessel a "permanent location" in Baltimore city. Ships and vessels are in fact permanently located nowhere, and there is no reasonable ground for presuming,  [**5]  in direct opposition to the fact, that they are to be held in law as located at the port of entry where they are registered or enrolled. The very purpose and objects of commerce forbid this. Registry and enrollment are for national purposes exclusively, and are so far from implying permanent location, that vessels registered and enrolled may lawfully leave the port to which they belong without ever returning to it again. They may, in fact, if they are enrolled vessels, be permanently located in another State, and carry on commerce exclusively in its waters. They may, if registered, sail altogether from and to the ports of another State. They are therefore, more properly than almost any other sort of chattels, within the reasonable rule in regard to taxation, that personal property follows the situs of the owner. If the rule were otherwise, the result would be to exclude all the citizens of Maryland from the privilege of being interested in the commercial marine of their chief port of entry, except upon the condition of contributing to pay the municipal debts of Baltimore city. In the case of Hays vs. The Pacific Mail Steam Ship Company, 17 How., 596, it was held, that the State of [**6]  California had no right to tax a vessel, temporarily in San Francisco, engaged in lawful trade, and duly registered in the city of New York, where her owners resided, and it was there said, that the situs of such a vessel was her home-port, where she belonged and where the owners were liable to be taxed for the capital invested. But the circumstances of that case are entirely different from this, and even if the situs of this vessel could be said to be her home-port where her owners resided, it would not locate her in Baltimore city, any more than in any other part of the registration district of which Baltimore is the port of entry.

Again, various provisions in the acts of 1841 and 1852, show that the legislature did not intend to embrace such property as this within the words, "permanently located elsewhere within the State." We refer to the provisions of the 12th, 13th and 63rd sections of the act of 1841, and particularly to the 16th section, which makes the stock of non-resident stockholders, in banking or other moneyed corporations situated, for the purposes of taxation, at the place at which the principal office for transacting the business of such corporation is situated.  [**7]  There are also similar provisions in the act of 1852. See, also, the acts of December session 1841, ch. 281, 1843, ch. 289. Again, by the 2nd section of the act of 1841, Baltimore city is divided into various assessment districts, and this vessel would be returned by the assessors of that district in which the owner resided, if he resided in the city at all, though the vessel might, in fact, be in another assessment district, and if this is admitted, as it must be under the provisions of the 12th section of the same act, it is because the situs of the owner draws to it the personal property of the owner.

H. R. Dulany and G. L. Dulany for the appellee:

It is admitted that personal property, as a general rule, must be taxed where the owner resides, but it is insisted that such property, when "permanently located elsewhere within the State," must be assessed to the party by the assessors of that place in which it is situated. This position is based upon the 9th section of the act of 1852, ch. 337, which supersedes the corresponding section in the act of 1841, ch. 23. After making it the duty of the assessors to inform themselves, by all lawful means, of all the assessable property [**8]  in their respective districts, and to value the same at its full cash value; this section enacts, that "all property owned by residents of this State, and not permanently located elsewhere within the State, shall be assessed to the owner in the county or city where he or she may reside." A similar exception as to the place of taxation of personal property generally, has been established by the legislatures of Massachusetts and New York. 5 Sandford, 44. 17 Mass., 461. In this case the owner is a bona fide and actual resident of Baltimore county, but has his place of business, as a merchant, in the city, and the vessel is duly registered at the custom-house in, and sailing out of the port of, Baltimore. These facts, we insist, makes the vessel "permanently located" in that city, within the meaning of those terms, as they are employed in the acts of 1841 and 1852. Those words evidently apply to personal property, for in the 1st section of the act of 1841, they are used in immediate connection with goods, wares and merchandise; the language of that section is: "All real and personal property in this State, all chattels real and personal, all goods, wares and merchandises, and other stock [**9]  in trade, at home, or not permanently located elsewhere." This clearly imports that personal property may have a permanent location, for the purpose of taxation, elsewhere than at the domicil of the owner, and that such was the meaning of the Legislature when they passed the law. What is meant by the general doctrine, that personal property has no locality? It does not mean that it has no visible locality, but it only refers to the law governing the transfer and transmission of such property. This is clearly stated in the sections in Story's Conf. of Laws, referred to on the other side. The word "permanent," in its literal meaning, signifies continuance in a place for a greater or less time. When applied to real estate, it includes the idea of immobility. Blackstone applies the term to a rent, which is an incorporeal hereditament, and if applicable to a rent, why may it not also be applied to personal property? The word is to be taken in connection with the context in which it is used. 1 Kent, 252. We do not contend that the fact of registry, alone, gives the right of taxation to the city, but the statement of facts includes the business residence of the owner in the city of Baltimore,  [**10]  and that the vessel is trading out of that port. The argument on the other side goes to the extent, and must go to the extent, of saying that a vessel is not susceptible of location any where. But this is not so. A vessel is not, like stock in a corporation, invisible and intangible, but can be seen, occupies space, is tangible and susceptible of being located. In the eye of the law it has a local situs, and if capable of having such a situs, that situs is the city of Baltimore, and it is there subject to taxation. The Supreme Court of the United States, in the case of Hays vs. The Pacific Steamship Company, 17 How., 596, clearly say, that the situs of a vessel is her home-port, and that she is liable to be taxed there--her home-port is her situs for the purpose of taxation. The home-port of this vessel is the port of Baltimore, and it is there she is "permanently located," within the meaning of the tax laws of the State.  

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

OPINIONBY:
LE GRAND 

OPINION:

 [*470]  LE GRAND, C. J., delivered the opinion of this court.
This is an appeal from a pro forma judgment of the Superior court for Baltimore city, on the following [**11]  statement of facts:
"It is admitted in this case that the defendant is a bona fide and actual resident of Baltimore county, but having his place of business, as a merchant, in the city, and that this action is instituted to recover from him the sum of five hundred and five dollars, being the amount duly assessed in the city of Baltimore, as city taxes on the ship Anne E. Hooper, the property of the defendant, registered in the custom-house at said city, and sailing out of the port of Baltimore. It is agreed that the plaintiff is entitled to recover the said sum of money and costs, and that the court shall give judgment therefor, provided the court shall be of opinion that the said ship is lawfully to be valued to the said defendant, for the purposes of city taxation in the city of Baltimore, and that he may lawfully be compelled to pay city taxes upon the said ship, notwithstanding his residence in Baltimore county. It is further agreed that the plaintiff is not entitled to recover, and that the 

 [*471]  court shall render judgment for the defendant, with costs, provided the court shall be of opinion that the said ship should be valued to the defendant, and that he should be [**12]  taxed thereupon in the county where he resides.
"It is agreed that either party may have an appeal from the judgment of the Superior court, and that the said court may make inferences of fact, in their discretion, from the facts herein stated. It is further agreed that the Court of Appeals may, in case of appeal, render such judgment upon this statement and such inferences, as they may deem according to law."
The question presented by this statement of facts is simply this: is a vessel owned under the circumstances detailed, liable to pay taxes, for municipal purposes, to the city of Baltimore?
It is claimed, on behalf of the city, that such liability exists because of the provisions of the act of 1841, chapter 23, sec. 9, and of those of the act of 1852, chapter 337, sec. 9. The words of the latter, so far as this question is involved--and they are the same as in the former act--are as follows: "All property owned by residents of this State, and not permanently located elsewhere within the State, shall be assessed to the owner in the county or city where he or she may reside."
It is urged that notwithstanding the owner of the ship Anne E. Hooper "is a bona fide and  [**13]  actual resident of Baltimore county," she is liable to taxation for city purposes, because she is registered in the custom-house at said city, and is "sailing out of the port of Baltimore," and because she is "permanently located elsewhere within the State" without the limits of Baltimore county, the domicil of her owner.
It was on the union of all these circumstances, and not on any one in particular, it was contended she was liable to city taxation. First, then, as to the effect of her registration at the custom-house, in Baltimore. We attach--and we also understood the counsel for the city to attach--but slight importance to this fact. Under the existing laws of Congress, so long as Mr. Hooper owns the vessel, and retains his residence in Baltimore county, she can be registered nowhere else than at the custom-house, in Baltimore city.
By the act of Congress of the 2nd of March 1799, entitled 

 [*472]  "An act to regulate the collection of duties on imports and tonnage," it is provided "that in the State of Maryland there shall be ten districts," and that "the district of Baltimore shall include Patapsco river, Turkey Point, Spes Utiae Island, and all the waters [**14]  and shores on the west side of Chesapeake Bay, from the mouth of Magetty river, which shall not be included in the district of Havre-de-Grace; and a collector, naval officer and surveyor for the district shall be appointed, to reside at Baltimore, which shall be the sole port of entry." And by the act of Congress of December 31st, 1792, it is provided that every ship or vessel to be thereafter registered, "shall be registered by the collector of the district in which shall be comprehended the port to which such ship or vessel shall belong at the time of her registry, which port shall be deemed to be that at or nearest to which the owner, if there be but one, or if more than one, the husband or acting and managing owner of such ship or vessel usually resides. And the name of the said ship or vessel, and of the port to which she shall so belong, shall be painted on her stern," &c.
Under these acts of Congress, it is clear that the Anne E. Hooper could only have been registered at the custom-house in Baltimore, and she, in consequence of such registration, was made to belong to that port, but the district of which that is the port, as is palpable from the language of Congress, is not [**15]  confined to the limits of the city.
The circumstances principally relied upon by the city, were the fact of sailing out of the port of Baltimore, and that she was "permanently located" elsewhere than at the place of residence of the owner. If, in one sense, as was said in the case of Hays vs. The Pacific Mail Steamship Co., 17 Howard's S. C. Rep., 596, a vessel engaged in foreign trade can have a domicil, it must be regarded as that of the home-port, which, as we have seen in the present instance, may extend over a much larger territory than the limits of the city; and it would therefore be just as proper for Baltimore county or Anne Arundel county, as for the city of Baltimore, to impose a tax for municipal purposes, for all of the one, and a part of the other, is embraced within the district of which the city of Baltimore 

 [*473]  is the port of entry. If, therefore, there was no other consideration affecting the case, the city would clearly have no right to tax, she being in no better condition than the other portions of the registration district. But, in truth, the whole question depends upon the meaning of the words of the act of 1852. It cannot be denied, nor was [**16]  it, that as a general principle, all personal property, unless affixed to the freehold, is, in contemplation of law, without a location, other than the residence of its owner. Wherever he or she may reside, there is, by operation of law, located the property. In this particular the rule being different from that applicable to realty. In the one case the domicil of the owner determines the law, whilst in the other the law of the rei sitae governs. So universal is the recognition of this distinction, that it can scarcely be necessary to cite authorities in its support. It is the law of nations. Lord Loughborough, in Sill vs. Worswick, 1 Hen. Bl. Rep. 690, has said, "it is a clear proposition, not only of the law of England, but of every country in the world, where law has the semblance of science, that personal property has no locality. The meaning of that is, not that personal property has no visible locality, but that it is subject to that law which governs the person of the owner, both with respect to the disposition of it, and with respect to the transmission of it, either by succession or by the act of the party. It follows the law of the person. The owner, in any [**17]  country, may dispose of his personal property. If he dies, it is not the law of the country in which the property is, but the law of the country of which he was a subject, that will regulate the succession." And Lord Chief Justice Abbott said: "Personal property has no locality. And even with respect to that, it is not correct to say that the law of England gives way to the law of the foreign country; but that it is part of the law of England that personal property should be distributed according to the jus domicilli." Justice Story, after treating of the history of this rule, in section 379 of his work on the Conflict of Laws, says: "If the law rei sitae were generally to prevail in regard to movables, it would be utterly impossible for the owner, in many cases, to know in what manner to dispose of them during his life, or to distribute 

 [*474]  them at his death, not only from the uncertainty of their situation in the transit to and from different places, but from the impracticability of knowing, with minute accuracy, the law of transfer," &c. Again: "Any change of place at a future time might defeat the best considered will, and any sale or donation might be rendered [**18]  inoperative from the ignorance of the parties of the law of the actual situs at the time of their acts. These would be serious evils pervading the whole community, and equally affecting the subjects and the interests of all civilized nations. But in maritime nations, depending upon commerce for their revenues, their power and their glory, the mischief would be incalculable. A sense of general utility, therefore, must have first suggested the doctrine, and as soon as it was promulgated, it could not fail to recommend itself to all nations by its simplicity, its convenience and its enlarged policy." These references are abundantly sufficient to show the rule and its policy. They might be multiplied to almost any extent.
Although the general rule is as we have stated it to be, yet it is perfectly competent to the sovereign authority to abolish or modify it, and the question here is: has it been so modified as to bring this vessel within the taxing power of the corporation of Baltimore? The words of the act are, "All property owned by residents of this State, and not permanently located elsewhere within the State, shall be assessed to the owner in the county or city where he or she [**19]  may reside."
Apart from the general principle to which we have adverted, it may be very properly doubted whether a vessel built for and actually employed in foreign trade, can be said to be "permanently" located any where. The idea of its permanent location is at war with the very purpose of its creation. Vessels are not constructed to rot at the wharf or dock, but to carry, from place to place, cargo; their very use necessarily implies transition--the absence of permanency of locality. Besides, under our act of Assembly, to take personal property out of the general rule, so far as taxation is concerned, it must be "permanently located elsewhere within the State" other than within the county or city of the residence of its owner. The 

 [*475]  ship in this case, clearly, is not permanently located "within this State." Her mission is on the seas:-- 

"Her march is o'er the mountain wave,
Her home is on the deep."
The desire on the part of the tax-payers of a city to subject the personal property of non-residents, who transact their business within its limits, to a proportionate share of its burdens, is far from unreasonable; but this desire cannot be gratified [**20]  unless the legislative will allows it, and this permission is not to be gathered by conjecture, but from the plain and unequivocal language in which it should be expressed. In Dwarris on Statutes it is said, at page 695, "As a rule of exposition, statutes are to be construed in reference to the principles of the common law. For it is not to be presumed that the legislature intended to make any innovation upon the common law, further than the case absolutely required. The law rather infers that the act did not intend to make any alteration other than what is specified, and besides what has been plainly pronounced."
If the legislature hereafter should deem it wise and just to subject property held as is the vessel in question to city taxation, it can adopt the policy of New York and Massachusetts, but until it does do so in plain and unmistakable terms, the courts must adhere to the long established doctrine.
Being of opinion that the vessel, Anne E. Hooper, is not liable to city taxation under the authority given in that event by the case stated, we reverse the judgment of the court below, and enter judgment for the appellant, with costs.
Judgment reversed.  [**21]